Avuthala vs Dayumma and Another

The suit is brought to recover the unpaid purchase money due in respect of a sale-deed executed on the 8th September 1894, and to enforce

the vendor''s lien. If Article 111 of the second schedule to the Limitation Act is the article to be applied, the suit is barred by limitation, since it was

not brought within three years from the date above mentioned, which we think, in the absence of evidence to the contrary, must be taken to be the

date for completing the sale.

In terms the article precisely applies to this suit and it has been hold by this Court in Natesan Chetti v. Soundararaja Ayyangar ILR 21 Mad.

141, notwithstanding the prior decision in Bombay, that this article and not Article 132 should he applied to such a case. We are asked to re-

consider that decision on the strength of a recent case in Har Lal v. Muhamdi ILR 21 All. 454, where the subject is discussed at length by

Strachey, C.J., with the result that the view expressed in Bombay is preferred to that which has been expressed in this Court. Notwithstanding the

anomalies which, according to the learned Chief Justice, are involved in the latter view, we are not convinced that it is erroneous. The Chief Justice

starts with the assertion that the expression ""suit to enforce a vendor''s lien"" may be taken to denote a claim for his personal remedy as well as his

claim against the land. We cannot assent to that proposition''. In the case of a sale of land the obligation to pay the purchase money has attached to

it by way of security the right against the land itself which is called the vendor''s lion. While in Article 111 the Legislature refers to that lien, we can

see no reason why its language should not be taken in its plain sense as referring not to the personal obligation which is not mentioned, but to the

right against the land which is mentioned. We fail to see how the, legislature could have expressed its meaning more clearly, if, as we take it, it was

intended that the vendor''s right against the land should be enforced by suit only within three years of the dates mentioned. With such plain language

before us we do not consider it necessity to examine the consequences which may ensue from an application of the article, When there is a special

provision made for a specific case, there can be no doubt that it, rather than a general provision such as is found in Article 132, must be put in

force. Otherwise no effect can be given to the article. The learned Chief Justice refers to the action of the Transfer of Property Act which deals

with vendor''s lien, and apparently draws from that consideration an argument against the application of Article 111. In our opinion an Act which

was passed in 1877 ought not to be interpreted with reference to an enactment on a totally different subject which was made some five years later.

If anomalies have resulted from this latter enactment, it is for the Legislature to amend the Act of 1877. For these reasons we adhere to the case of

Natesan Chetti v. Soundararaja Ayyangar ILR 21 Mad. 141.

A second point taken was that the respondent was entitled, as regards the personal remedy, to the benefit of the six years given by Article 116,

since the sale-deed was a registered instrument. Article 116 pre-supposes a contract in writing registered which contract has bean broken. Here

there was no contract in writing so far as regards the payment of the purchase money. On the contrary the registered document states that the

money has been paid, and it is therefore in spite of the document and not under it that the plaintiff sues. The obligation on the part of the buyer to

pay the purchase money is different from the obligation arising under a covenant for title such as was in question in the case cited (Krishnan

Nambiar v. Kannan ILR 21 Mad. 8. The obligation to pay arises from the contract--between vendor and purchaser, whereas the covenant for title

is implied or expressed in the conveyance. The present case is therefore distinguishable from Krishnan Nambiar v. Kannan ILR 21 Mad. 8. In our

opinion Article 116 cannot properly be applied to this case, and it follows that the suit ought to have been dismissed. The appeal is allowed and the

decrees of both the Courts below are reversed. The defendant is ''entitled to all costs.