MEENAKSHI ALIAS SIVAKAMI Vs. KRISHNA ROYAR

JUDGEMENT

(1.) Certain land was sold by Minakshinathan, 1st defendant s husband, to one Subbayya, 5th defendant s husband, in 1897 and he re-sold to plaintiff s brother in 1398. On 24th September 1910, plaintiff was dispossessed of 62 cents of the land in execution of a decree, and sues to recover Rs. 147-8-11 for the loss sustained. Defendants Nos. 2 to 4 are in possession of part of Minakshinadan s estate under a Will and are said in the plaint to be living with 1st defendant in a joint family manner. The main question argued in this petition is the question of limitation and it is contended for the petitioners that this being a suit on a breach of covenant for title, the starting point for limitation is the date of the sale-deed in 1897, and that, therefore, the suit is barred. For the respondents it is urged that this is a suit for money paid upon an existing consideration which afterwards fails and that the suit is within time as the failure was on 24th September 1910, when the plaintiff was dispossessed. As the vendee was put in possession of the property in 1897 and was in possession till 1910, it cannot be said that the contract was void ab initio and although the suit on a breach of covenant for title would be barred, plaintiff has his remedy in a suit under Article 97 of the Limitation Act. Petitioners Vakil referred to a case recently decided (Second Appeal No. 2783 of 1913) in support of his argument, but in that case it was only held that a breach of covenant for title occurs once for all on the date of the sale [as held in Srinivasa Raghava Dikshadar v. Rangasami Aiyangar 31 M. 452; 18 M.L.J. 477; 5 M.L.T. 211 and Ramanatha Aiyar v. Ozhaloor Pathiriserri Raman Nambudripad 21 Ind. Cas. 740; (1913) M.W.N. 1029; 14 M.L.T.524; 1 L.W. 110] and the plaintiff did get a decree for money paid on a consideration which afterwards failed. In Ramanatha Aiyar v. Ozhaloor Pathiriserri Raman Nambudripad 21 Ind. Cas. 740; (1913) M.W.N. 1029; 14 M.L.T.524; 1 L.W. 110 it was held by Miller, J., that when the purchaser, from an usufructuary mortgagee was subsequently dispossessed by the mortgagor, the starting point for limitation in a suit to recover the purchase-money would be the date of the final decree decreeing redemption. In Subbaraya Reddiar v. Rajagopala Reddiar 23 Ind. Cas. 570; (1914) M.W.N. 376; 15 M.L.T. 240; 38 M. 887 it was held that a sale cannot be said to have been without consideration and consequently void ab initio when possession has been given under the contract of sale, and that the cause of action for return of purchase-money arises on the disturbance of possession[vide also Venkatarama Ayyar v. Venkata Subrahmanian 24 M. 27; 10 M.L.J. 217; Ram Chandar Singh v. Tohfah Bharti 26 A. 519; A.W.N. (1904) 92; I.A.L.J. 231 and Amma Bibi v. Udit Narain Misra 1 Ind. Cas. 890; 31 A. 68; 9 C.L.J. 512; 11 Bom. L.R. 525; 19 M.L.J. 295; 6 M.L.T. 89 (P.C.); 36 I.A. 44].

(2.) It was then contended that as in this case there had only been a partial failure of consideration the principle would not apply.

(3.) can find no authority for such a proposition and am not prepared to accept it, as there is no reason why the words "an existing consideration" in Article 97 should be read as meaning "the whole consideration for the contract". I, therefore, find that the suit is not barred by limitation.