Chinnatambi Gounden vs Chinnana Gounden

Subramania Ayyar, J.—The objection, that the suit being one for the recovery of a sum of money less than Rs. 500 and of a nature

cognizable by a Court of Small Causes, no appeal against the order of the District Judge remanding the suit lies, is unsustainable, as the right of

appeal conferred by Section 588 in a case like this is unaffected by Section 586 of the Code Collector of Bijnor v. Jafar Ali Khan ILR 3 All. 18

and Mahadev Narsinh v. Ragho Keshav ILR 7 Bom. 292 .

It was contended on behalf of the appellant (the first defendant) that the suit was barred by limitation. No evidence having been taken, it is

necessary in dealing with the said contention, to consider what the allegations relied upon on behalf of the plaintiff are. As I understand the plaint,

the oral contract for compensation for the breach of which the suit was brought, was this. Tanda Gounden, uncle of the first defendant and father of

the second defendant, about 1882 agreed to sell to the plaintiff certain land for Rs. 175, received the amount from him and put him in possession of

the land. No sale-deed was, however, executed, as the land then stood registered in the public revenue accounts in the name of a third party. But

Tanda Gounden agreed to execute a sale-deed and cause the land to be registered in the plaintiff''s name after the registry was transferred to that

of Tanda Gounden himself. It was further expressly agreed that if he failed so to convey and cause a change of the revenue registry he shall return

the Rs. 175, the price received by him. The breach alleged was that in November 1890 the defendants on the death of Tanda Gounden

fraudulently conveyed to one Muttu Payyan by a registered deed the land alleged to have been sold to the plaintiff, that in the next month Muttu

Payyan ejected the plaintiff from possession and that the defendants failed to repay the Rs. 175, notwithstanding demand made upon them for the

refund thereof. The District Munsif held that the claim was barred by limitation inasmuch as the registry in the revenue accounts was transferred to

the name of Tanda Gounden admittedly more than three years prior to the institution of the suit and the breach of contract on the part of Tanda

Gounden should, therefore, be taken to have occurred then. No doubt after Tanda Gounden''s name was registered in the accounts it was open to

the plaintiff to call upon his alleged vendor to give effect to the promise about the execution of the sale-deed, etc. But, considering that the plaintiff

was said to have been left in possession till December 1890, it can hardly be said that there was a breach of contract on the part of the vendor,

unless and until further performance was distinctly refused. (Compare the observations of Garth, C.J. in Ahmed Mahomed Pattel v. Adjein Dooply

ILR 2 Cal. 326 and there is nothing in the plaint to support the view that the date of transfer of the revenue registry to Tanda Gounden''s name was

agreed between the parties to be the date fixed for the execution of the conveyance to the plaintiff. The plaint allegations on this point convey

nothing more than that the understanding was that until the land came to be registered in Tanda Gounden''s name the plaintiff had no right to claim

the execution of a conveyance. But it does not follow that the moment Tanda Gounden''s name was inserted in the registers a cause of action

accrued to the plaintiff ipso facto. As already observed, a refusal to complete the contract was necessary to give the plaintiff the right to sue. But,

according to the plaint, there was no refusal prior to November 1890. The District Judge''s view that the breach alleged was subsequent to that

period and therefore the claim cannot, upon the plaint itself, be held to be barred appears to be right. His order reversing the District Munsif''s

decree must be upheld and the appeal dismissed with costs.