1. This is a defendants' appeal arising out of a suit for recovery of damages on the ground of a breach of contract to grant a lease. It is an admitted fact that there was a contract between the plaintiff's deceased father and the defendants, under which the defendants agreed to grant a lease of certain houses for a period of six years beginning with Asarh Badi, 2 Sambat 1975, corresponding with the 26th June 1918. In December 1917 this contract was complete and Rs. 2,000 were advanced under a receipt of that date. A regular qabuliat was executed and registered on 18th March 1918, and, under the terms contained in this document, the lease was to be for six years from the period above mentioned. As regards the payment of the lease money, it was provided that the whole amount should be paid within six years in this way: that Rs. 2,000 had been paid previously, Rs. 50 would be paid at the time of the execution of the qabuliat, Rs. 1,250 would be paid after one month from the date of the execution of the document, Rs. 550 would be paid at the beginning of Sambat 1975, that is to say, the time when the lease was to commence, and thereafter five more payments of Rs. 550 each would be made year after year. The total amounts to be paid aggregated Rs. 6,600.
2. It is common ground that Rs. 2,000 were paid originally and Rs. 50 were paid about the time when the qabuliat was executed. It is also common ground that possession did not pass from the defendants to the plaintiff's father during the period of the lease. The point in dispute between the parties was whether the breach was committed by one party or the other. The plaintiff's case, as put forward in the plaint, was that, in addition to Rs 2,050, his father paid Rupees 1,250, and was ready to pay Rs. 550 at the commencement of the period. On the other hand the defendants denied receipt of any amount after the payment of Rs. 2,050.
3. There was a further plea in the written statement that the plaintiff was not entitled to any compensation or damages and that the claim was barred by limitation. The plaintiff was in this difficulty: that the contract was entered into directly between his deceased father and the defendants, and his father was dead. After some evidence had been led, the plaintiff agreed to abide by the statement of the defendant, Anant Bharti, so far as the amounts received by him were concerned. The defendant agreed to make a statement as regards these payments. He was examined on 11th December 1924 and denied that he received any amount over and above Rs. 2,050. Unfortunately his statement-in-chief was taken down rather carelessly, and, although he specifically denied the receipt of Rs. 200 in the presence of Bhikai Singh, as alleged by the plaintiff, and the receipt of Rs. 100, alleged to have been paid by the plaintiff, and although he specifically denied the existence of any dealings with the plaintiff's shop as had been suggested by the plaintiff, he stated: 'Gopal Singh did not pay me Rs. 250.' The evidence which had been led on behalf of the plaintiff was that Rs. 250 had been paid in the presence of Gopal Singh and not that the sum had been paid by Gopal Singh himself. The learned Subordinate Judge did not take care to have the statement of the defendant recorded in such a way as either to amount to an admission or a clear denial of that allegation. Fortunately, however, when further questions were put to the defendant, he did state that, after the registration of the lease, neither Tara Singh came to him a month later, nor did he pay him Rs. 550, nor did he obtain the lease. Indeed, he asserted that, although he demanded the money due to him several time, Tara Singh made a flat refusal, saying that he was not willing to take the lease. Reading the whole of the statement of Anant Bharti, there is no doubt left in our minds that he clearly denied the receipt of any amount over and above Rs. 2,050 which had been admittedly paid. The plaintiff is, therefore, bound by the defendant's denial and it must be taken that no further payments were made by the plaintiff's father or by the plaintiff after the execution of the qabuliat.
4. The first default that was made was made on behalf of the plaintiff, inasmuch as Rs. 1,250 were not paid in April. It might be assumed, for the sake of argument, that the payment of this sum in April was not necessarily of the essence of the contract, and that any delay in this payment did not entitle the defendants to avoid the contract and to put an end to it. It might, therefore, be assumed in favour of the plaintiff that there was no actual breach committed by him in April 1918: Section 55, Contract Act.
5. It is, however, clear from the qabuliat that there were reciprocal promises which had to be performed in an order which was fixed by that document. First of all the plaintiff had to pay Rs. 2,000 in advance. This was actually done. Next, Rs. 50 had to be paid and the qabuliat had to be executed. Both these things were duly done. The third step to be taken was that the plaintiff should pay Rs. 1,250 after one month from the date of the execution. There was undoubtedly a default in this, but we have assumed that this default did not amount to an actual breach of the contract. The next step to be taken was to pay Rs. 550 at the beginning of Sambat 1975 from which time the lease was to commence. It is quite-clear from the document itself, leaving aside the statement of the defendant on that point, that the sum of Rs. 1,250 had to be paid before the lease commenced. As the contract was to grant the lease for a specific period beginning from a definite date, it is obvious that the amount should have been paid before that period commenced in order that the defendants might grant the lease from that time by delivery of possession to the lessee. When the plaintiff did not perform his part of the contract, which he had to do before possession could be taken it does not lie in his mouth to say that the defendants committed a breach. Section 52, Contract Act, provides that, where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order. The payment of Rs. 1,250 was, in our opinion, a condition precedent to the commencement of the lease. The plaintiff having made default in payment of this amount, he cannot claim that the breach was committed by the opposite party.
6. The learned advocate for the respondent has suggested that, even if some part of the period of lease had been allowed to expire, possession could be delivered subsequently for the remaining period by the defendants, and that, therefore, there was a continuing breach till the whole period expired and it became impossible to perform the whole contract. But, in our opinion, the contract was to grant the lease for the whole period of six years from a particular date. The grant of a lease for only a portion of that period on payment of proportionate rents would not be the same contract, but a different contract. In our opinion, when the plaintiff did not pay the amount due from him up to the commencement of the period, and indeed for some time afterwards, the contract, as it stood, became impossible of performance. ( After considering evidence his. Lordship proceeded.) Under these circumstances and in view of this evidence it is impossible to hold that any breach of the contract was committed by the defendants. On the other hand, it appears that the lease was not given effect to because money was not paid or tendered on behalf of the plaintiff.
7. Although there was no breach committed by the defendants the contract became impossible of performance and therefore, became void when the time from which the lease was to commence was allowed to expire. After the contract became impossible of performance and, therefore, void, the consideration for it undoubtedly failed.
8. As there has been no breach committed by the defendants it is obvious that the present suit for recovery of compensation for an alleged breach of such contract is not maintainable. At the same time, when a contract becomes void any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it: Section 65, Contract Act. We would, therefore, have allowed the plaintiff a decree for refund of the amount which he paid to the defendants by which the latter had undoubtedly benefited. But, in our opinion, the present claim is barred by limitation. Art 116, Lim. Act, obviously cannot apply when we have found that there was no breach committed by the defendants. The claim is not one for compensation for a breach of contract but one for the recovery of money paid upon an existing consideration which after wards failed. The general Article 120 cannot apply if there is a special article applicable to the case. In our opinion Article 97, Lim. Act, undoubtedly applies. The consideration undoubtedly existed when the money was paid, but it failed when the contract became void. The right to get back this money could therefore, be exercised within three years from the date of failure: of Ramphal Lal v. Said Jafir Ali [l874] 7 N.W.P. 199.
9. The last question is from what date the period of three years should begin to run. The learned advocate for the respondent has argued that inasmuch as the whole contract did not become impossible of performance till the period of six years had expired, time should begin to run from the date of the expiry of six years. But it is obvious that the contract to let the houses for six years from 1918 onwards is not the same thing as a contract to let them out for a shorter period commencing at some subsequent date. The parties were living in the same place. It is common ground that these shops were let out by the defendants to the other lessees after the time fixed for the payment of the next two instalments had passed. The plaintiff's father must have been aware of that fact. In our opinion, therefore, the failure took place in 1918 and not in 1924. The present suit having been instituted in May 1924 was clearly beyond time.
10. We accordingly allow this appeal and, setting aside the decree of the Court below, dismiss the plaintiff's suit. As however the defendants have benefited in this way, that they have received this large sum of money and are not now called upon to refund it, we direct that the parties should bear their own costs in both Courts.