Ramparikha Pandey and Others vs Mt. Ramjhari Kuer

Wort, J.—The only question in this appeal is one of limitation. The appellants were the defendants in two actions, to which I shall refer and respondents in an application under Order 34, Rule 6, Civil P. C, for the balance of the purchase price of certain property remaining unsatisfied after the enforcement of the statutory lien. The circumstances are as follows: On 5th February the respondent in this appeal sold certain property to the appellants for a sum of Rs. 6,000. In the kabala there was a recital to the effect that the full consideration had been paid. On 25th April 1924, however, the vendor brought an action claiming a declaration that the sale deed was fraudulent, and that contrary to the recital in the deed the consideration had not been paid in full. This action was dismissed, but it was held that the transaction was a completed one and that a sum of Rs. 4,742 of the consideration remained unpaid. Appeals to the High Court failed. As a result of that, litigation, another suit was brought by the vendor on 28th August 1928 for the enforcement of her statutory charge for the unpaid purchase price. She claimed and succeeded in obtaining a decree for, sale of the property for a sum of Rs. 7,657 against her claim for Rs. 4,742 together with interest. In execution the property was put up for sale and realized a sum of Rs. 6,000, the vendor herself being the purchaser. There remained a balance therefore of Rs. 1,657 as the deficiency which together with interest amounted to Rs. 3,589 which sum she claimed in the application under Order 34, Rule 6. In the Court below the application succeeded and, as regards the question of limitation which arises in this appeal, the learned Judge took the view that if Article 111, Limitation Act, applied, time ran from 11th July 1928, the date upon which the judgment of this Court was pronounced in the appeal arising out of the case instituted on 25th April 1924, that is to say the date upon which the contract was completed, the defendants then having accepted the title. But in the circumstances it was unnecessary for the Judge to decide that question, as he came to the conclusion that Article 116, Limitation Act, applied because the right which the applicant was endeavouring to enforce was under a contract in writing registered; and that is the question which is for determination by this Court.

Mr. Sinha who appears on behalf of the respondent argued that there were three Articles under consideration, Article 111, Limitation Act, which provides a period, of three years'' limitation for a vendor of an Immovable property for personal payment of the unpaid purchase money; Article 116, to which I have already referred providing a period of six years; and Article 132, a period of 12 years'' limitation to enforce payment of money charged upon an Immovable property. It is not now contended that Article 132 applies as it is admitted, and is clearly the fact, that so far as the lady''s remedy of enforcing a charge upon the Immovable property is concerned, that was exhausted by her action of 28th August 1928. We are therefore limited to the question whether Article 116 or Article 111, Limitation Act, applies. It is contended by Mr. Sushil Madhab Mullick who appears on behalf of the defendants appellants, relying upon certain authorities to which I shall make reference, that Article 111 applies. On the contrary Mr. Sinha on behalf of the respondent urges that Article 116 applies, and in support of that contention it is suggested that the applicant was enforcing her contract contained in her conveyance to the defendants, and that there was an implied agreement by the defendants to pay the purchase money. That there was an implied agreement that the purchaser should pay the purchase money under the contract for sale or conveyance cannot be disputed. But that does not dispose of the matter. The manner in which this question arises will appear from the decisions relied upon respectively by the parties to the appeal.

Reference was first made to the decision in the well-known case in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur AIR 1916 PC 182, where their Lordships of the Judicial Committee of the Privy Council decided in an action for royalties under a mining lease that although the royalties were in a sense rent, yet as the royalties were payable under a registered contract, the action was governed by Article 116, Limitation Act, and not Article 110. This was in consonance with a number of decisions of the High Courts in India and it is needless to say that since the date of that decision in all cases where there has been either a claim for compensation under a contract in writing registered or a claim to enforce sums of money payable under a contract in writing registered, Article 116 has always been held to apply. It is very largely on the principle of those decisions that Mr. Sinha on behalf of the respondent in this case relies. To revert for the moment to some of the earlier decisions on the point under discussion, I propose first to quote the decision in Avuthala v. Dayumma (1901) 24 Mad 233, which is a decision in point. That was an action brought to recover unpaid purchase money due in respect of a sale of land which was held in 1894, and the question there to be considered was whether Article 111 applied or whether Article 132, Limitation Act applied. As regards the enforcement of the lien the learned Judges in that case decided that Article 111 applied to a decision which it is contended and rightly contended has since been overruled. But the second point with which the learned Judges dealt was the question of the period of limitation to be applied to the claim on what was described as the personal remedy. It was there argued that as it was under a registered instrument Article 116 applied. The learned Judges in the course of their judgment stated:

Article 116 presupposes a contract in writing registered which contract has been 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.

There was a similar observation in a case reported in the 9th Vol. of the Rangoon Series to which I shall refer later. Mr. Sushil Madhab Mullick very strongly relies upon this decision in support of his argument. I then come to a series of cases which from one point of view give us no assistance in deciding the point under discussion, as it will be seen that in all the cases to which I am now about to make reference there was, an express contract in writing registered under which the party claiming sued. The first of these is the case in Seshachala Naickar v. Varada Chariar (1902) 25 Mad 55 where during the course of the argument it had been stated that there was a contract implied by law collateral to the sale deed after the same bad been executed by the plaintiff and accepted by the defendant. Sir Arnold White, C.J. and Bhashyam Ayyangar, J. pointed out that that argument overlooked the fact that in a document which was known as Ex. 4 in the case all the terms of the contract including the term relating to the payment of consideration were found. It is therefore quite clearly a case in which there was a contract in writing registered. The decision to which I, a moment ago, made reference as overruling the first part of the decision of the learned Judges reported in Avuthala v. Dayumma (1901) 24 Mad 233 is contained in Ramakrishna Ayyar v. Subrahmania Ayyer (1906) 29 Mad 305 where the learned Judges relied upon the decision of the Privy Council in Webb v. Macpherson (1904) 31 Cal 57 and made these observations:

On the authority of the judgment of the Privy Council in Webb v. Macpherson (1904) 31 Cal 57, which is since the decision of the lower appellate Court in this case, we must hold that the District Judge was wrong in his view that the case was governed by Article 111 of the Schedule to the Limitation Act. It is pointed out in the judgment of the Privy Council that the chargo which a vendor obtains u/s 55, T.P. Act, is different in its origin and nature from the vendor''s lien given by English Courts of equity to an unpaid vendor.

They then proceeded to apply Article 132, Lim. Act. I now refer to the decision in Sahlal Chand v. Indarjit (1900) 22 All 370, a decision upon which Mr. Sinha on behalf of the respondent relies as deciding by inference that it is not Article 111, Lim. Act, which applies to the facts of this case. In this case there was a claim for a sum of Rs. 33,133 odd as the balance of the amount of consideration for a sale deed dated 18th February 1888. The action was brought on 6th December 1892. It will be seen therefore that the action was more than three years after the date upon which it must be deemed that the contract for sale was completed. The only question expressly decided by their Lordships of the Judicial Committee of the Privy Council was whether in view of the fact that the kabala contained a recital that consideration had in fact been paid, the parties were open to prove that the consideration had not in fact been paid. Lord Davey, in delivering the opinion of their Lordships of the Judicial Committee of the Privy Council, makes this observation:

The Evidence Act does not say that no statement of fact in a written instrument may be contradicted by oral evidence, but that the terms of the contract may not be varied.

The learned Law Lord was referring to Section 92, Evidence Act. They therefore overruled that point. No mention was made nor did any discussion take place as regards the point of limitation; and it is said by Mr. Sinha on behalf of the respondent that, as the point was not taken (this is how I understand his argument) it must be assumed that at any rate by inference it was decided that the Article gave a period of limitation greater than the period which had lapsed between the date of the sale and the date of the action, and that, in the circumstances could not be Article 111. Apart from the bare statement that it was an action for the recovery of the balance of an unpaid consideration we have no details regarding this point and quite clearly it is not open to us to hold that a decision which was expressly directed to one point and one point only could be considered a decision for a point which as I have already stated was not discussed.

Reference was made to two decisions of this Court. The first was the case in Ram Rachhya Singh Thakur v. Raghunath Prasad Misser AIR 1930 Pat 46. That case gives no assistance to the respondent as it was clearly a case of an express agreement in writing registered which it was sought to enforce in the action. But the other decision of this Court in Nabin Chandra Ganguli v. Munshi Mander AIR 1927 Pat 248 does create some little difficulty. On a first reading it appears to be against the contention of Mr. Sushil Madhab Mullick appearing on behalf of the appellants. That was a case in which the plaintiff claimed alternatively possession of a certain property of which he had taken a lease or the return of the salaami. In the result he failed in his first claim but succeeded in the second, and the question that arose was whether Article 62 or Article 97, Limitation Act, applied. Das, J. (as he then was) made this statement:

The question then which I have to consider is whether an action for the breach of duty declared by the express provision of the legislature as contained in 8. 108., T.P. Act, is regulated by Article 62 or Article 97 if the plaintiff sues to recover the money paid by him as salaami. In my opinion it is quite impossible to maintain this view. It seems to me that an action for breach of duty declared by Section 108, T.P. Act, is regulated by Article 116, Limitation Act, if the lease is in writing registered, the obligation being deemed to be embodied in the contract.

The only answer to that decision given by Mr. Sushil Madhab Mullick is based on the respective provisions of Section 55, T.P. Act, which applies to this case and Section 108 which applied to the case to which I have referred. u/s 108 in Nabin Chandra Ganguli v. Munshi Mander AIR 1927 Pat 248 the plaintiff was endeavouring to enforce Cl.(c) of Sub-section (A) of Section 108 which provides:

The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease, and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption,

what is known in English leases as the covenant for quiet enjoyment. The words of the section are "the lessor shall be deemed to contract." u/s 55(5)(b):

The buyer is bound to pay or tender, at the time and place of completing the sale, the purchase money to the seller or such person as he directs.

Mr. Mullick''s contention is based upon the difference in the language used by the two sections of the statute, and Nabin Chandra Ganguli v. Munshi Mander AIR 1927 Pat 248 is explicable on that ground. In the one case the so-called covenant of quiet enjoyment is deemed to be a part of the contract and to be read into the contract, whereas u/s 55 it is not a part of the contract but a statutory obligation merely. In my judgment that contention is correct and in the case before us it is not action for compensation for the breach of contract in writing registered but the enforcing of a statutory obligation. Therefore, it is Article 111, Limitation Act, that applies) and not Article 116. ''

The decision of the Rangoon High Court to which I made a passing reference is that in Ram Raghubir Lal v. United Refineries. (Burma) Ltd. AIR 1931 Ran 139 . That was an action in which the plaintiffs sought to recover a part of the unpaid purchase money under an agreement of December 1924. The learned Judges of the Rangoon High Court held that Article 116 applied on the footing that there was an express contract to pay the consideration, within a period of three months. One of the main questions considered in the High Court and by their Lordships of the Judicial Committee of, the Privy Council was the question of liability of the parties which is irrelevant for the purposes of the case before us, but their Lordships made this observation on the question of limitation: AIR 1933 143 (Privy Council) . "The learned Judges" (referring to the Judges of the High Court at Rangoon), held that the liability of appellant 3 arose, in virtue of the conveyance, upon a contract in writing registered within the meaning of Article 116, Limitation Act, and that the six, years, Period allowed by that article applied with the result that the suit was well within time. Their Lordships think that, having regard to the judgment, of this Board in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur AIR 1916 PC 182, this view was manifestly correct. It is therefore, unnecessary for them to consider the applicability of Article 111, by which a shorter period is prescribed and upon which reliance is placed for the company.

The decision, although urged in support of the contention by Mr. Sinha appearing on behalf of the respondent, does not in any way affect the view taken of this case having regard to the fact that there was, there an express contract to pay the consideration within a certain time. In my judgment on a proper view of this case Article 111, Limitation Act, applied, and consequently the application was barred by limitation. The appeal succeeds and the application in the Court below is dismissed with costs throughout. In the circum stances the revisional application which is also made to this Court in conjunction with the appeal need not be considered.

Agarwala, J.

I agree.