SIGAMANI PANDITHAN Vs. MUNIBADRA NAINAR

JUDGEMENT

(1.) The plaintiff purchased some property from defendants 1 to 3 under Ex. A. After the sale a suit was brought by one Ammani Ammal for half the share of the property on the ground that she was entitled to it as the heir of her deceased son. That suit was decreed by the 1 Court on 20 March, 1913. There was an appeal against the decree which was decided on 13 April, 1914 and the Second Appeal was decided on 1 March, 1917. The plaintiff who was not given possession under the sale sued for possession of the property and he was given a decree for possession of half the property on 22nd December, 1913. The present suit was lied on 10 November, 1917.

(2.) Mr. Patanjali Sastri, for the respondents, contends that the suit is barred by limitation. His contention is that either Art. 62 applies or Art. 97. Under Art. 97 of the Limitation Act a period of 3 years is given for bringing a suit for money paid upon an existing consideration which afterwards fails. The Subordinate Judge has not definitely held that Art. 116 applies. His view is that the matter was not finally disposed of till 1 March, 1917, when the Second Appeal was decided. This view of the law is wrong. The consideration for the sale failed when the decree of the First Court was given in Ammani Ammal's favour, i.e., on 20 March, 1913 [vide Juscurn Bold V/s. Pirthichand Lal Choudhury (1918) ILR 46 C 670 (PC)].

(3.) The next question is whether Art. 116 applies. In this case the document is a registered document and the plaintiff got only half the property and he did not get a title to the other moiety. Mr. Patanjali Sastri's contention is that there was no covenant in writing for good title. He urges that the statutory covenants embodied in Section 55(2) of the Transfer of Property Act should not be imported into the sale deed as Section 55 speaks only of a contract. I am unable to accept this contention. The statutory covenants are attached to the transaction of sale and not merely to the contract which precedes the sale. To hold that the statutory covenants under Section 55 apply only to contracts and not to sales would be defeating the object of Section 55. If the statutory covenants do not apply to the actual sale itself, the vendor who executes a sale deed is relieved of the liability which is cast upon him by the statute under Section 55. No doubt under the English conveyancing practice all the covenants of title and covenants for quiet enjoyment are set out in the deed itself, but under the Transfer of Property Act the technicalities of the English conveyancing have been done away with and in the case of a sale of property all the covenants which are usually found in an English conveyance deed are to be read into the sale deed by reason of the provision of the Transfer of Property Act. The contention of Mr. Patanjali Sastri is that Article 116 speaks only of breach of contract in writing and does not apply to a sale deed. The sale itself may not be properly called a contract in writing but contracts which are to be contained in a sale deed or such terms of contract which the law imports into a sale are contracts within the meaning of Art. 116 and a sale deed comes within Art. 116 of the Limitation Act. It is unnecessary to discuss this matter further as a bench of this Court has, after a very careful consideration of the cases, come to the conclusion that a suit for compensation for breach of express or implied covenant for title and quiet enjoyment in respect of a sale deed executed after coming into force of the Transfer of Property Act is governed by Art. 116 of the Limitation Act. [Arunachala V/s. Ramaswami (1914) ILR 38 M 1171 : 27 MLJ 517]. With the reasoning of the learned Judges I entirely agree and I hold therefore that Art. 116 applies to this case.