M R ALAGARAPPA REDDIAR Vs. KALAGIRISAMI NAICK

JUDGEMENT

(1.) The plaintiff purchased the property in question from the defendant in 1920. At that time there was a subsisting mortgage on the property but that fact was not disclosed to the Plaintiff. Subsequently in 1929 the mortgagee brought a suit upon his mortgage, obtained a decree and the plaintiff was in due course dispossessed in November, 1930. In the present suit filed in December of that year, the plaintiff claims compensation for the loss sustained by him.

(2.) The two questions that arise are (i) in regard to limitation, which is the starting point - the date of the conveyance or the date of the dispossession? and (ii) what is the proper measure of damages?

(3.) The Petitioner's Counsel refers to the principle laid down by Bramwell, B in Spoor V/s. Green (1874) L.R. 9 Ex 99 and confirmed in subsequent English decisions (see Turner V/s. Moon (1901) 2 Ch. 825 and Dart's Vendors and Purchasers 8 Edn. Vol. 2, p. 663) that in an action for damages for breach of the covenant for title, the Statute of Limitations commences to run from the moment of the delivery of the conveyance. But it has been held in this country in a series of cases that where, although the title is imperfect, the vendee has been put in possession of the property, the cause of action for the return of the purchase-money arises on the disturbance of possession. I may quote the following passage from the judgment of Phillips, J., in Meenakshi V/s. Krishnaroyar (1915) 32 I.C. 176: In Subbaraya Reddiar V/s. Rajagopala Reddiar (1914) M.W.N. 376 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 distrubance of possession.