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Sheoambar Lal and ors. Vs. Lachmi NaraIn Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1880)ILR2All411
AppellantSheoambar Lal and ors.
RespondentLachmi NaraIn Lal and anr.
Excerpt:
pre-emption - limitation--act xv of 1877 (limitation act), schedule ii, article 10. - .....complete so as to give a right of pre-emption by reason of the vendor not having received the purchase-money, and this decision was affirmed in appeal. the vendor subsequently sued to recover the purchase-money with interest from the vendees, and obtained a decree on the 13th march 1877, for rs. 298, the consideration of the sale, and rs. 70 interest. the plaintiffs have now brought the present suit, and the lower appellate court has decreed their claim, subject to their depositing in court, within thirty days of the decree becoming final, rs. 200 payable as purchase-money, and rs. 98 for redemption of the mortgage. the objections taken in second appeal are invalid. the limitation law which governs this case is act xv of 1877, and the period will run from the date on which the.....
Judgment:

Oldfield, J.

1. The plaintiffs sue to obtain possession of a certain share in property sold under a deed of sale dated 15th October 1873, to the defendants by right of pre-emption under the conditions of the administration-paper of the mauza. It appears that the vendees are mortgagees in possession of the property, and, under the terms of sale, Rs. 200 were to be paid in cash to the vendor (mortgagor), and Rs. 98 to go in redemption of the mortgage. The plaintiffs brought a suit asserting their right to recover the property Sold by pre-emption, but it was dismissed on 31st March 1875, by the Court of First Instance, on the ground that the sale contract had not become complete so as to give a right of pre-emption by reason of the vendor not having received the purchase-money, and this decision was affirmed in appeal. The vendor subsequently sued to recover the purchase-money with interest from the vendees, and obtained a decree on the 13th March 1877, for Rs. 298, the consideration of the sale, and Rs. 70 interest. The plaintiffs have now brought the present suit, and the lower Appellate Court has decreed their claim, subject to their depositing in Court, within thirty days of the decree becoming final, Rs. 200 payable as purchase-money, and Rs. 98 for redemption of the mortgage. The objections taken in second appeal are invalid. The limitation law which governs this case is Act XV of 1877, and the period will run from the date on which the purchaser takes under the sale sought to be impeached physical possession of the property sold. As the purchaser in the case before us was also the mortgagee in possession, he must be held to have taken physical possession under the sale from the date when the contract of sale became complete; his possession as mortgagee became then possession as proprietor under the sale, and with reference to the former decision between the parties, the contract only became completed on the payment to the vendor of his purchase-money, and it is not urged that a year has elapsed from that date so as to bar the suit. There is nothing to show that the lower Appellate Court has misconstrued the terms of the administration-paper which support plaintiffs' preferential right of pre-emption. The second objection fails, as we cannot re-open a question decided between the parties in the former suit. The fourth and fifth pleas have no force. The plaintiffs cannot be liable to pay to defendants the interest decreed against them in the suit brought by the vendor to recover his purchase-money; it was no part of the purchase-money, which is all the plaintiffs can be called on to pay, and the former suit brought by the plaintiffs will be no bar to the present suit, as with reference to the decision in the former suit, the plaintiff's have now obtained a new cause of action.

2. The appeal is dismissed with costs.


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