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Fatmatus Sughra Begam Vs. Mariamunnisa Begam and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1916All6; 32Ind.Cas.49
AppellantFatmatus Sughra Begam
RespondentMariamunnisa Begam and ors.
Excerpt:
limitation act (ix of 1908), sch. i, articles 62 and 97 - vendor and purchaser--contract to sell--suit for specific performance of contract--return of purchase-money. - - if article 97 applies, it seems to us that the date of failure must be taken to be the 18th of june 1908 and that the suit was barred after the expiration of three years from that date......the plaintiff claims proprietary possession of the property and in the alternative a refund of the purchase-money. the court below has held that the suit is barred by limitation and farther that the alleged payments are fictitious. on these findings the suit was dismissed. the plaintiff appeals.2. it seems to as that on the allegations contained in the plaint the only relief which the plaintiff was entitled to (had the suit been brought within time) was a decree for specific performance or a return of the purchase-money. the very form in which relief (a) is concluded rather suggests that it was an attempt to get over the plea of limitation. treating the suit, however, as a suit for specific performance with an alternative claim for the return of the purchase-money, we think that the view.....
Judgment:

1. This appeal arises out of a suit in which the plaintiff alleges that on the 27th of April 1908, she agreed with one Musammat Najmunnisa for the purchase of a village called Dunka. It is alleged that the price was Rs. 5,110, that Rs. 4,500 was paid as earnest money at once and that the balance was paid on the 18th of June 1908. It is alleged that Najmunnisa never completed the sale but shortly before her death made a gift of the property in favour of her daughter. The plaintiff claims proprietary possession of the property and in the alternative a refund of the purchase-money. The Court below has held that the suit is barred by limitation and farther that the alleged payments are fictitious. On these findings the suit was dismissed. The plaintiff appeals.

2. It seems to as that on the allegations contained in the plaint the only relief which the plaintiff was entitled to (had the suit been brought within time) was a decree for specific performance or a return of the purchase-money. The very form in which relief (a) is concluded rather suggests that it was an attempt to get over the plea of limitation. Treating the suit, however, as a suit for specific performance with an alternative claim for the return of the purchase-money, we think that the view taken by the Court below was correct. On the allegations contained in the plaint the contract was at latest to have been performed upon the 18th of June 1908. The present suit was not instituted until April 1913. A suit for specific performance must be brought within three years of the date upon which the contract was to be performed. Again, assuming that the plaintiff really did pay the money which she alleges she paid, her claim to a return of the purchase-money is governed for the purposes of limitation either by Article 62 or Article 97 of the Limitation Act. If Article 62 applies, the suit should have been brought within three years from the date when the money was received by the deceased lady. If Article 97 applies, it seems to us that the date of failure must be taken to be the 18th of June 1908 and that the suit was barred after the expiration of three years from that date. It is unnecessary for us to go into the questions of fact. We dismiss the appeal with costs including in this Court fees on the higher scale.


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