S.K. Ray, J.
1. Defendants 2 to 4 are the appellants. This appeal is directed against the reversing judgment of Sri S.N. Misra, 3rd Additional Subordinate Judge, Cuttack, dated 13-11-64, passed in Title Appeal No. 180/83 of 1963-64.
2. Plaintiffs filed the suit for declaration of title in respect of the suit land purchased by them under a registered kabala dated 28-10-53 from late Durga Charan Das, father-in-law of defendant 2 and grandfather of defendants 3 and 4, and for recovery of possession, or in the alternative, for refund of consideration money of Rs. 200/-.
3. The defendants raised various defences. They contend that the plaintiffs' vendor had, previous to the plaintiffs' sale-deed, sold the same to defen-dant-1. The sale-deed in favour of defendant-1 was executed on 14-10-53 and registered on 3-11-53. As title upon registration, is deemed to pass with effect from the date of execution of the sale-deed, defendant-1 must be held to have acquired title to the suit-property with effect from 14-10-53. If that is so, Durga Charan had no more interest in the suit-property for conveyance under the plaintiffs' sale-deed dated 28-10-53.
4. This contention of the defendants found favour with both the Courts below who held that the plaintiffs had acquired no title to the suit-property and also had never obtained possession. Another defence was that the suit for recovery of consideration money is barred by limitation.
5. With regard to the alternative prayer for recovery of consideration money of Rs. 200/- from defendants 2 to 4, as the successors-in-interest of Durga Charan, the two Courts below differed. The trial Court held that the claim for refund of consideration money is barred by limitation. According to him the cause of action for recovery of this amount arose on 28-10-53 when the in-fructuous sale-deed in favour of plaintiffs was executed and registered, and the present suit having been filed on 26th November, 1960, that is to say seven years after the date of execution of the sale-deed, is barred by limitation.
6. The lower appellate Court held to the contrary that the suit was not barred by limitation. He, therefore, has decreed the suit for refund of the consideration money of Rs. 200/- from defendants 2 to 4 upon a finding that defendants 2 to 4 have benefited by the consideration money received by late Durga Charan Das whose heirs they are. Therefore, he made defendants 2 to 4 personally liable for the money.
7. Two points have been urged by learned counsel for the appellants. First is that either Article 62 or Article 116 of the Limitation Act, 1908 would govern this suit and not Article 97 which has been applied by the lower appellate Court. The suit is accordingly, barred by limitation. The second point is that even if the suit is not barred by limitation, the lower appellate Court was in error in imposing a personal liability on defendants 2 to 4 in regard to refund of consideration money. It is argued that they should have been made liable to pay out of the assets, if any, which they inherited from the late Durga Charan Das.
8. With regard to the first point, it must be noticed at the outset that the law applicable is the Limitation Act, 1908, and not the Limitation Act of 1963 (Act XXXVI of 1963). A few facts found have to be kept in the background of the mind before launching into discussion as to the proper Article of the Limitation Act which would govern this suit.
9. It is no longer in dispute that the plaintiff's sale-deed was a mere paper-transaction conveying no title. The lower appellate Court also found that the plaintiff paid Rs. 200/- to Durga Charan towards the consideration of his sale-deed dated 28-10-53 and that the plaintiffs never obtained possession of the properties in pursuance of their sale-deed, Durga Charan never mis-spent the money for immoral purposes and defendants 2 and 4 were benefited by the same. The lower appellate Court has applied Article 97. This Article runs as follows:
'For moneypaid upon an existing considerationwhich afterwards fails.
The date offailure.'
This Article, applies where the suit is for recovery of money paid upon an existing consideration which afterwards fails, and the time begins to run from the date of such subsequent failure. The applicability- of this Article would depend upon whether the consideration failed at once or failed subsequently to the payment of the sum. In the particular case, the plaintiffs never got possession of the property and the vendor had also notitle to pass, he having already executed a sale-deed to defendant-1 before he sold to the plaintiffs. The plaintiff in para 10 of his plaint has set out the date of cause of action as 2-10-60 when defendant-1 threatened to dispossess him. But according to the facts found this is not true. As already stated above, the finding is that Durga Charan had no subsisting interest in the suit properties to convey and that the plaintiffs were never able to obtain either title or possession, from the very inception. In that context the consideration obviously failed at once and its failure was not postponed to any later date. In the circumstances, I am of opinion that Article 97 would not save the suit from the bar of limitation.
10. The Privy Council in the case of Hanuman Kamat v. Hanuman Mandur, (1891) 18 Ind App 158 (PC), has given the same interpretation as indicated above by me to Article 97. They have said, while considering Article 97 of the Limitation Act, 1908, as follows:
'If there never was any consideration, then the price paid by the appellant was money had and received to his account by Dowlut Mandar. But their Lordships are inclined to think that the sale was not necessarily void, but was only voidable if objection were taken to it by the other members of the joint family. If so, the consideration did not fail at once, but only from the time when the appellant endeavoured to obtain possession of the property and being opposed, found himself unable to obtain possession'.
11. In the present case the sale transaction of the plaintiffs was void ab initio, and the plaintiffs never obtained possession of the suit-property. Therefore, consideration failed at once and Article 97 is wholly inapplicable. The learned lower appellate Court was of opinion that if Article 97 did not apply, then it may be either Article 115 or Article 116. These articles, in terms, do not apply, because in the instant case, price paid by the plaintiff, when there never was any consideration was money had and received to his account by Durga Charan; and in view of the aforesaid discussion the lower appellate Court was wrong in applying Article 97, and holding that the suit was in tune. No other Article has been shown to specifically apply to the present suit. The choice, therefore, ranges between Articles 62, 115, 116 or the residual Article 120. Whichever Article of these is applied, the present suit having been filed beyond six years from the date when plaintiffs paid the price to Durga Charan which is the date when plaintiffs' right to sue accrued, is clearly barred.
12. The plaintiff has categorically stated that the consideration money was paid on the date of registration, that is, 28-10-53. Therefore, the right to recover the same arose from that date, and the suit having been filed on 26-11-60 is obviously barred.
13. In view of this decision on the question of limitation, the other point does not arise for consideration. Nevertheless, I would like to record that I agree with the contention of learned counsel for the appellants that defendants 2 to 4 cannot be personally liable for this amount of Rs. 200/-, but will only be liable to pay the same out of the assets inherited by them from Durga Charan.
In the result, therefore, the appeal succeeds, but since the respondents have not appeared to contest, there would be no order for costs of this Court.