1. The suit was originally filed by two plaintiffs, a brother and sister, and in the plaint it was stated that a decree may be given in favour of the 1st plaintiff who is the only person interested in the amount. The Court below dismissed the plaintiffs' suit.
2. The second appeal has been filed only by the 2nd plaintiff, the 1st plaintiff being made the 1st respondent. It is explained that the vakalat of the 1st plaintiff was not ready and so he had to be made a respondent and not that he does not want a decree. I directed that the 1st plaintiff should be transposed as an additional appellant. It is then objected by the respondents that the appeal is out of time. Apart from the consideration that where a party is transposed no question of limitation arises, it seems to me that the 2nd plaintiff only is competent to carry on the second appeal. Though ultimately the 1st plaintiff is the person interested in the transaction, as the 2nd plaintiff conducted most of them as his agent sometimes not disclosing the principal, I think she is competent to sue and, if she succeeds, to hand over the benefit to the 1st plaintiff. The appeal is therefore maintainable.
3. To deal with the merits I would state the facts. The suit is to recover Rs. 2,207-14-6 claiming to make it a charge on two items of property. These items belonged to the 1st defendant, defendants 2 and 3 being his sons and the 4th being his grandson. The 2nd plaintiff entered into an agreement with the 1st defendant to purchase two items for Rs. 3,000. In pursuance of this agreement she paid off a prior encumbrance on 22nd September, 1912 to one Ramayya Bhagavathar who held a mortgage under a deed dated 12th August, 1909 for Rs. 600 over both the said items. The amount paid was Rs. 775. It is also found that she paid another amount of Rs. 225 to the 1st defendant. But the plaintiffs never paid the balance of the consideration amount and the sale fell through. To pay off the above mentioned Rs. 1,000 the plaintiffs borrowed from one Suppa Pandithan. Suppa Pandithan afterwards filed a suit against the plaintiffs and defendants 1 to 4 to recover the amount of Rs. 1,000 with interest and he claimed a charge on the suit properties. That suit was O.S. No. 195 of 1914 on the file of the District Munsif's Court of Melur. It ended in a decree against the present plaintiffs only and the present plaintiffs had to pay off that amount to Suppa Pandithan. They now sue to pay off that amount with interest from defendants 1 to 4 who had the benefit of the payment. The first item was sold to the 10th defendant in 1916 and the second item to the 5th defendant on 23rd February, 1917. The Courts below finding that the 2nd plaintiff who was unable to find the money after the return of the 1st plaintiff from Rangoon in about February 1913 told the 1st defendant that she had no money and consequently she did not want to purchase the land, held that the suit is barred by limitation and that the plaintiffs are not entitled to a charge.
4. Two points arise in second appeal (1) whether the plaintiffs are entitled to a charge for the said amount? and (2) when did the cause of action arise? The Courts below assumed that the cause of action arose in Feb., 1913 when the plaintiffs were unable to find the balance of the amount for the sale. But Mr. Sitarama Rao contends that it does not follow from the mere fact that the 2nd plaintiff told the 1st defendant in February 1913 that she was unable to purchase the land that the contract fell through at once. Time is not of the essence in a contract to purchase immoveable property, it the 1st defendant did not rescind the contract at once but continued to keep it alive waiting for the plaintiffs to find the necessary funds the contract would be continuing; similarly it would continue, if the plaintiffs told the 1st defendant that they hoped to raise the necessary funds and requested the 1st defendant to wait for some time. However, it seems to me, by February, 1915 when the written statement of the 1st plaintiff (the 1st defendant) in Suppa Pandithan's suit was filed the contract certainly fell through. It is not clear to me when between February 1913 and February 1915 the contract really terminated. I therefore request the Lower Appellate Court to submit a finding on the question whether the contract was kept subsisting after February, 1913 and when it terminated.
5. Further evidence may be adduced. The written statement of the present 1st defendant may be exhibited as it may be of some help.
6. The finding will be submitted within six weeks and seven days for objections.
7. After the return of the finding submitted by the Additional Subordinate Judge of Madura, the Court delivered the following
8. The second appeal fails and is dismissed with costs to be shared half and half by the vendors and their alienees.