THANGAMMAI NACHIAR Vs. SUBBAMMAL

JUDGEMENT

(1.) The plaintiff sold her lands to the defendant Subbammal on the 30 April 1891 for Rs. 4,324. Out of that amount the defendant was to pay a mortgage debt of Rs. 2,800, due by the plaintiff to one Shanmuga Kumaraswami Mudaliar. One of the widows of Shanmuga Kumaraswamy Mudaliar, received a moiety of the principal amount, but the other widow Kalliani Ammai had to sue for her moiety, the present plaintiff and certain others who had purchased the mortgaged property from her. To avoid the sale of the properties in execution the purchasers had to pay the decree debt of Rs. 3,697-10-0. It is the plaintiff's case that that amount was paid by them at the plaintiff's request and on an undertaking by her to repay them that amount. The plaintiff now sues to recover that sum from the defendant, as it was her default in payment that led to Kalliani Ammai's suit and to the loss sustained by the plaintiff in having to pay to the. purchasers the amount deposited by them. I agree with the District Judge that the plaintiff cannot recover the amount sued for as damages.

(2.) That she has promised to the purchasers, the other defendants in Kalliani Ammai's suit, to repay them makes no difference For even without any express undertaking on her part, she is liable in law to pay them that amount; she has not yet paid them. In lieu of her original obligation to pay Shanmuga Kumaraswamy Mudaliar is now substituted the obligation to pay such purchasers. I do not see how her position has been altered to her prejudice and the claim, therefore, to recover from the defendant the amount deposited must-be disallowed. Her cause of action would arise only on payment of any money by her. But there can be no doubt that the defendant having failed to comply with the terms of the contract and such performance having now become impossible is not entitled to retain part of the purchase money while keeping in her possession the lands purchased and she is bound, to pay such purchase money to the plaintiff.

(3.) The District Judge is of opinion that the plaintiff is barred by limitation as she has allowed six years to elapse fromthe date of the breach of contract, allowing four years as reasonable time for her to pay the money.