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Thangammai Nachiar Vs. Subbammal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1906)16MLJ20
AppellantThangammai Nachiar
RespondentSubbammal and anr.
Excerpt:
- - but there can be no doubt that the defendant having failed to comply with the terms of the contract and such performance having now become impossible is not entitled to retain part of the purchase money while keeping in her possession the lands purchased and she is bound, to pay such purchase money to the plaintiff......now sues to recover that sum from the defendant, as it was her default in payment that led to kalliani ammai's suit and to the loss sustained by the plaintiff in having to pay to the. purchasers the amount deposited by them. i agree with the district judge that the plaintiff cannot recover the amount sued for as damages.2. that she has promised to the purchasers, the other defendants in kalliani ammai's suit, to repay them makes no difference for even without any express undertaking on her part, she is liable in law to pay them that amount; she has not yet paid them. in lieu of her original obligation to pay shanmuga kumaraswamy mudaliar is now substituted the obligation to pay such purchasers. i do not see how her position has been altered to her prejudice and the claim, therefore,.....
Judgment:

Sankaran Nair, J.

1. The plaintiff sold her lands to the defendant Subbammal on the 30th April 1891 for Rs. 4,324. Out of that amount the defendant was to pay a mortgage debt of Rs. 2,800, due by the plaintiff to one Shanmuga Kumaraswami Mudaliar. One of the widows of Shanmuga Kumaraswamy Mudaliar, received a moiety of the' principal amount, but the other widow Kalliani Ammai had to sue for her moiety, the present plaintiff and certain others who had purchased the mortgaged property from her. To avoid the sale of the properties in execution the purchasers had to pay the decree debt of Rs. 3,697-10-0. It is the plaintiff's case that that amount was paid by them at the plaintiff's request and on an undertaking by her to repay them that amount. The plaintiff now sues to recover that sum from the defendant, as it was her default in payment that led to Kalliani Ammai's suit and to the loss sustained by the plaintiff in having to pay to the. purchasers the amount deposited by them. I agree with the District Judge that the plaintiff cannot recover the amount sued for as damages.

2. That she has promised to the purchasers, the other defendants in Kalliani Ammai's suit, to repay them makes no difference For even without any express undertaking on her part, she is liable in law to pay them that amount; she has not yet paid them. In lieu of her original obligation to pay Shanmuga Kumaraswamy Mudaliar is now substituted the obligation to pay such purchasers. I do not see how her position has been altered to her prejudice and the claim, therefore, to recover from the defendant the amount deposited must-be disallowed. Her cause of action would arise only on payment of any money by her. But there can be no doubt that the defendant having failed to comply with the terms of the contract and such performance having now become impossible is not entitled to retain part of the purchase money while keeping in her possession the lands purchased and she is bound, to pay such purchase money to the plaintiff.

3. The District Judge is of opinion that the plaintiff is barred by limitation as she has allowed six years to elapse fromthe date of the breach of contract, allowing four years as reasonable time for her to pay the money.

4. I am unable to agree. It is the defendant's case, as is set out in the written statement, that the mortgagee agreed to receive the amount from her releasing the plaintiff from her obligation, that she was always willing and ready to pay Kalliani Ammai and had even asked her-by registered notice to obtain succession certificate to receive the amount and her son gave evidence in Kalliani Ammai's suit in support of this case which was also the case of the present plaintiff in that suit. There is no plea by the defendant that there was any breach of contract by her. I do not see any reason to hold in opposition to her own case that there was any such breach. The balance of the purchase amount was money held by the defendant to be paid as agreed between them and when that payment became impossible by the payment to Kalliani Ammai of her debt by the purchasers, the defendant was bound to pay the balance of that purchase money to the plaintiff. That money belongs to the plaintiff after the sole by the plaintiff of her lands to the defendant and is held by the defendant for her.

5. The cause of action to recover this amount only arose on the 2nd November 1901, when the performance in accordance with the terms of the contract became impossible.

6. It was not open to the plaintiff in my opinion to sue the defendant before that date, as the defendant could have successfully pleaded her obligation under the contract to pay the mortgagee and her willingness to pay him. There is no allegation or proof of any refusal on the part of the defendant to pay the mortgagee.

7. I would, therefore, modify the decree of the lower appellate x Court and direct the defendant, Subbammal, to pay the plaintiff the sum of Bs. 1,400 with interest from the 2nd November 1901 at 12 per cent, per annum till date of decree and subsequent interest at 6 per cent, per annum. The plaintiff will receive and proportionate costs throughout,

Moore, J.

8. I concur.


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