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Har Lal Vs. Muhamdi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All454
AppellantHar Lal
RespondentMuhamdi
Excerpt:
act no. iv of 1882 (transfer of property act), section 55, sub-section 4(b) - vendor's lien--suit to enforce charge against the property--limitation--act no. xv of 1877 (indian limitation act), schedule ii, articles 132, 111. - - no doubt the words in article iii 'to enforce his lien for unpaid purchase-money' would, in the ordinary sense of the expression 'enforcement of lien,'include a suit to enforce it against the land as well as against the defendant personally: 1, though the suit was brought more than three years from the date mentioned in the third column of article 111. to apply article iii to suits like the present might lead to various difficulties and anomalies......in respect of immovable property.' and they add that article 132 has reference only to suits for money charged on immovable property to raise it out of that property. there can be no doubt (see darby and bosanquet's law of limitation, 2nd edition, pp. 170--175), that in england a suit to enforce a vendor's lien would come within section 8 of the real property limitation act, 1874, which prescribes a period of twelve years for a suit 'to recover any sum of money secured by any mortgage, judgment, or lien or otherwise charged upon or payable out of any land or rent at law or in equity.' that closely corresponds, both in language and in regard to the period prescribed, to article 132 of the second schedule of the limitation act. the difference is, that whereas in england the twelve years'.....
Judgment:

Arthur Strachey, C.J.

1. This was a suit by a vendor of immovable property to recover the balance of unpaid purchase-money by enforcement of the lien or charge conferred by Section 55, Sub-section 4(b) of the Transfer of Property Act, 1882. The Court of First Instance found that only Rs. 149 of the purchase-money remained unpaid. That Court held that the claim, so far as it sought to enforce the lien by sale of the property, was barred by Article III of the second schedule of the Limitation Act, 1877. But it also held that the claim for a personal remedy was not barred, as it fell within Article 116, the sale-deed being a registered instrument. It therefore gave the plaintiff a personal decree for Rs. 149. On appeal the Lower Appellate Court held that Article III was equally applicable to the claim for the personal remedy and to the claim to enforce the charge against the land, and accordingly dismissed the whole suit. The plaintiff now appeals against that decision.

2. The sale-deed was executed on the 7th of June 1893. The suit was brought on the 17th of July 1896. The question is whether Article III or Article 132 prescribes the limitation applicable to a suit by a vendor to enforce his lien by sale of the property to which the lien attaches. In the former case the suit is barred, in the latter it is within time. In this Court there appears to be no authority in point. In the case of Baldeo Prasad v. Jit Singh Weekly Notes, 1891, p. 130, to which the Lower Appellate Court refers, there is no ruling on the point with which we have to deal, and the Court evidently found it extremely difficult to determine the real nature of the suit. On the question before us there is a conflict of authority between the High Court of Bombay and the High Court of Madras. In Virchand Lalchand v. Kumaji (1892) I.L.R. 18 Bom., 48, andin Ghunilal v. Bai Jethi (1897) I.L.R. 22 Bom., 846, the Bombay High Court held in effect that a suit by the vendor to enforce his charge against the land falls within Article 132, while his suit for the personal remedy falls within Article 111. I gather from the report of the argument in the latter case that the same view was taken in two unreported cases published in the printed judgments of the Court. On the other hand, the Madars High Court has held in Natesan Chetti v. Soundararaja Ayyangar (1897) I.L.R. 21 Mad., 141, dissenting from the first of the Bombay cases, that the suit to enforce the charge against the land falls within Article III and not Article 132. We have now to decide which of these conflicting views we ought to adopt.

3. The difficulty arises from the fact that both Article III and Article 132 use language sufficiently wide to cover a suit of this description. No doubt the words in Article III 'to enforce his lien for unpaid purchase-money' would, in the ordinary sense of the expression 'enforcement of lien,' include a suit to enforce it against the land as well as against the defendant personally: but a suit limited to a claim for the personal remedy would undoubtedly answer the description. Now it is noticeable that Article III is placed in Part VI of the schedule among a number of articles, all of which relate exclusively to suits for a personal remedy, and prescribe the same period of limitation, that is a period of three years. In Ramdin v. Kalka Pershad (1884) L.R. 12 I.A. 12, the Privy Council say:--'The second schedule places simple money demands generally under the three years' limitation. The twelve years' period is made applicable principally to suits in respect of immovable property.' And they add that Article 132 has reference only to suits for money charged on immovable property to raise it out of that property. There can be no doubt (See Darby and Bosanquet's Law of Limitation, 2nd edition, pp. 170--175), that in England a suit to enforce a vendor's lien would come within Section 8 of the Real Property Limitation Act, 1874, which prescribes a period of twelve years for a suit 'to recover any sum of money secured by any mortgage, judgment, or lien or otherwise charged upon or payable out of any land or rent at law or in equity.' That closely corresponds, both in language and in regard to the period prescribed, to Article 132 of the second schedule of the Limitation Act. The difference is, that whereas in England the twelve years' limitation has been held to apply both to suits for the personal remedy and to the remedy against the land--see Sutton v. Sutton (1882) L.R. 22 Ch. D., 511, in India, Article 132 has been held to apply only to suits for the recovery of the money out of the property charged, while suits for the personal remedy fall within the limitation applicable to simple money demands. As pointed out by Mr. Whitley Stokes and Mr. Mitra, the third column of Article III is based on Toft v. Stevenson (1854) 5 De G.M. and G., 735, the effect of which it states almost in the exact terms of a passage at p. 175 of Darby and Bosanquet's work; but the vendor's claim which the first column of Article III describes as one 'to enforce his lien for unpaid purchase-money,' is in the passage in Darby and Bosanquet called the right of a vendor to receive his purchase-money which is secured by his lien on the land sold. It seems probable that the first column of Article III was intended to have the same effect as these words, which, however, point rather to a personal claim to receive the purchase-money than to a claim to realize it by sale of the property. On the other hand, it seems improbable that the Legislature should have intended by Article 132 to give all other charges on land the same twelve years' limitation as in England, but to exclude therefrom the vendor's remedy against the land, which in England has been expressly held to fall within the same category and to be covered by the same words. It also seems improbable that a vendor should have a shorter period of limitation than is given to every other charge-holder, while under Section 100 * of the Transfer of Property Act all charge-holders are put as nearly as possible on the same footing as a mortgagee. There can be no doubt, for instance, that the limitation applicable to a suit for enforcement against the land of the purchaser's charge conferred by Section 55, Sub-section 6? (b) of the Transfer of Property Act would be governed by Article 132, and so would all other charges on land under the Transfer of Property Act or otherwise. It is difficult to see why the vendor should have a shorter time for suing than the purchaser and the other charge holders mentioned. Again, in all other cases provided for by the Limitation Act, where there is a charge against land and also a personal remedy, a longer period of limitation is allowed for the claim against the land than for the merely personal claim. On the construction adopted by the Madras High Court, either both claims stand on the same footing under Article III, or else a longer period is allowed for the personal remedy, in the case of a registered instrument, for instance, under Article 116. For some reason which does not appear from the report, the Madras High Court, while dismissing the suit before them, so far as regards the charge, as barred by Article III, confirmed the first Court's personal decree against defendant No. 1, though the suit was brought more than three years from the date mentioned in the third column of Article 111. To apply Article III to suits like the present might lead to various difficulties and anomalies. Apart from the difficulty of applying to ordinary sales in the mofassil the second date mentioned in the third column--the date of the acceptance of the title--cases might occur in which the first date, 'the time fixed for completing the sale,' could not be applied without absurdity or injustice. It must be remembered that under Section 55(4)(b) of the Transfer of Property Act the vendor's charge does not arise, as in England, as soon as there is a valid contract for sale, though there may be no actual conveyance, and the time for completing the sale has arrived without payment of the purchase-money. It arises only 'where the ownership of the property has passed,' that is, not until the actual completion of the sale by (where the property is worth Rs. 100 or upwards) a registered instrument. If, for any reason, the sale were not completed, and if consequently the charge did not arise until more than three years after ' the time fixed for completing the sale,' the effect of applying Article III would be that the remedy was barred before the right had come into existence. In many, if not most, cases the right would not come into existence until some part at least of the prescribed period had elapsed. On the whole, although there are difficulties in the way of either interpretation, I have come to the conclusion that that adopted by the Bombay High Court is supported by stronger reasons and involves fewer anomalies than that of the Madras High Court. In this view of the case I think that the decree of the Lower Appellate Court dismissing the suit was wrong, that this appeal should be allowed, the decree of the Lower Appellate Court set aside, and the case remanded to that Court under Section 562 of the Code of Civil Procedure for disposal of the appeal on the merits. The appellant to have his costs of this appeal. Other costs will abide the result.

Banerji, J.

4. I concur in the order proposed by the learned Chief Justice and in the reasons by which it is supported. The question is not one free from difficulty; but any other conclusion would create anomalies which we are not justified in assuming the Legislature contemplated.

*[Section 100.--Where immoveable property of one person is by act of parties or operation

of law made security for the payment of money to another, and

Charges. the transaction does not amount to a mortgage, the latter per-

son is said to have a charge on the property; and all the

provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to

the owner of such property, and the provision's of Sections eighty-one and eighty-two

and all the provisons hereinbefore contained as to a mortgagee instituting a suit for

the sale of the mortgaged property shall, so far as may be, apply to the person having

such charge.

Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust.]

? [Section 55.--In the absence of a contract to the contrary, the buyer and seller of

immoveable property respectively are subject to the liabilities,

Rights and liabilities of and have the rights, mentioned in the rules next following,

buyer and seller. or such of them as are applicable to the property sold.(6) The buyer is entitled-- * * * * *

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him with notice of the payment, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.]


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