1. This is an appeal by the defendant against the decree of Mr. Justice Shephard directing the defendant to pay, with future interest to the plaintiff, the sum of Rs. 7,345-0-0 being the amount claimed in the plaint as the balance of the amount of consideration for a sale deed, dated 19th May 1894, executed by the plaintiff in favour of the defendant.
2. The only ground on which this appeal is preferred is that the suit is barred by limitation.
3. The consideration for the sale of the house and other properties comprised in the sale deed was Rs. 10,000, and the plaint sets forth that part-payments amounting to Rs. 2,655-0-0 were, subsequent to the execution of the sale deed and delivery of the property, made by the defendant from time to time, the last of such part-payment having been made on 9th September 1897.
4. The suit was brought for the recovery of the balance, viz., Rs. 7,345, and it is seated in paragraph 5 of the plaint that the cause of action arose on the 9th September 1897, the date of such last part-payment and on 19th May 1894, the date of the sale deed. The alleged part-payment of 9th September 1897 can furnish a fresh starting point for limitation under Section 20 of Act XV of 1877 only on the supposition that the fact of such payment appears in the handwriting of the person making the same. The plaint therefore must be taken as alleging by necessary implication that the fact of such part-payment appears in the handwriting of the defendant or his agent. The defendant while admitting all the part-payments except the last, pleaded that they were not made towards the consideration of the sale deed but made for a separate and independent transaction. The learned judge who tried the suit held that all the part-payments were made towards the consideration of the sale deed, and this finding is not impugned before us.
5. The plea of limitation was set up in the written statement, and an issue was also taken. In the course of the trial of the suit the plea of limitation was abandoned by the defendant's pleader when it was discovered that the plaint was really presented on 16th July 1900, the day on which the Court re-opened after the long vacation which commenced on 7th May 1900 and not on the 27th July as was erroneously assumed. The learned Judge gave a decree in favour of the, plaintiff on the merits.
6. It is now argued on behalf of the appellant that the Article of the Limitation Act applicable to the suit is Article 115 (Schedule No. 2) which prescribes a period of 3 years and not Article 116 or Article 120 under either of which the period is 6 years. It is#conc6d-ed that if the period of limitation applicable be 6 years, the suit, is not barred by limitation in any view and that the plaintiff need not rely upon the part-payment of 9th September 1897 or any other part-payment. On the other hand, if the period of limitation applicable be 3 years, the suit will be barred by limitation but for the part-payments within 3 years before the date of suit and part payments within three years after 19th May 1894, which payments are all set forth in Exhibit D.
7. The appellant's pleader contends that the contract to pay the purchase money arises from a contract not in writing registered and that, therefore, Article 115 governs the suit. His contention eventually was that there was an oral contract implied by law collateral to the sale deed after the same was executed by the plaintiff and accepted by the defendant.
8. He evidently overlooked Exhibit IV in the case which was not brought to our notice during the argument of the appeal. If that exhibit had been brought to our notice, the argument would have been considerably simplified. That is a receipt, dated 17th November, 1893, given by the plaintiff to the defendant acknowledging payment in advance of Rs. 50 in part-payment of the price of Rs. 10,000. It contains the terms of the contract of sale fixing a period of 2 months from 17th November 1898 for payment of the balance of purchase money, viz., Rs. 9,950-8-0 and the execution of a conveyance. It also provides that in default of payment of the balance of the purchase money within stipulated time, the defendant should forfeit its. 50 paid by him in advance.
9. The balance money was not paid on or before 17th January 1894, the time fixed in Exhibit V; but the conveyance Exhibit A was nevertheless executed on 19th May 1894, It recites the payment of Rs. 50 in advance on 17th November 1803 and acknowledges the receipt of the balance of purchase money as paid on the date of the sale deed. It is, therefore, clear that the plaintiff, the vendor, varied the stipulation as to time and completed the sale on 19th May 1894 and delivered to the defendant possession of properties sold. In a recent decision of the Privy Council, Bah Lai Chand v. lndarjit L.R. 27 I. A. 93 it is laid down as the settled law that notwithstanding an admission in a sale, deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. Under the contract of sale which was entered into in November 1893, and the terms of which were reduced to writing in Exhibit IV, the defendant agreed to pay the purchase money on or before 17th January 1894 when the conveyance was executed, though, in fact, it was not so paid. The present suit, therefore, is based not on any contract implied by law on the execution of the sale deed, but upon the express contract of sale of 17th November, 1893, claiming compensation for breach of the contract to pay the purchase money on obtaining the conveyance. Exhibit IV is not registered, and the question of limitation, therefore, is governed by Article 115. If the receipt had been registered, we should have been prepared to hold, following the decision of this Court reported in Ambalavana Pandaram v. Vaguran I.L.R. 19 M. 52 and the recent decision of this Court in S.A. No. 1454 of 1899 not yet reported, that Article 116 would be applicable to the case notwithstanding that Exhibit IV was not signed by the defendant. In Avuthala v. Dayumma I.L.R. 24 M. 233 which was cited by the learned pleader for the appellant, it was not only held that a suit to enforce the vendor's lien was governed by Article 111 and not by Article 152, but that as regards the personal remedy, the benefit of the 6 years given by Article 116 was inapplicable, though the sale deed which simply recited that the price had been paid was registered. In that decision we concur, for the mere recital in the sale deed that the consideration had been paid cannot be construed as a contract in writing to pay the consideration money. If the oral agreement or contract of sale which immediately preceded the actual sale be also reduced to writing; as is very often the case in the deed of sale itself which is registered, the case might be different and Article 116 would govern it though the sale deed also acknowledges the payment and receipt of the price when in fact it was not paid, but its receipt was acknowledged in anticipation of payments being, made, In the present case not only the preliminary contract of sale is not reduced to writing in the sale deed, but it had already been reduced to writing in Exhibit IV which was not registered. According to the terms of the contract of sale the cause of action for enforcement of the payment of purchase money by specific performance against the vendee arose on the 17th January 1894. The time limited for the specific performance having been waived by the plaintiff, and the conveyance having been executed on the 19th May 1894, time for payment of the purchase money was really extended till that date, and the, price became payable on that day, and the cause of action for ,the recovery of the purchase money accrued on that day. Even assuming that the limitation commenced on 17th January 1894, it will make no difference in the case, inasmuch as on the 19th of May 1894 there was an acknowledgment of liability in writing by the defendant in Exhibit B within the meaning of Section 19 of the Limitation Act, and there were several part-payments subsequent thereto up to the 19th July 1896, and there was a further part-payment on the 9th September 1897 ; the suit having been brought on the 16th of July 1900, it was within three years from the dates of the last two part-payments, and the' suit therefore would not be barred under Article 115 of the Limitation Act, if, as found by the learned judge, the part-payments have been made, and if, as averred in law, in the plaint, the fact of part payments or at any rate of the last two part-payments appears in the handwriting of the defendant or his agent. The defendant having abandoned the plea of limitation during the course of the trial of the suit and, as we are told by the respondent's pleader who also appeared at the origin altrial, before the plaintiff's case was closed, we cannot allow the appellant to revive in appeal the plea of limitation which he had deliberately abandoned in the Original Court, when as in this case such plea cannot be decided by the Appellate Court either upon facts as found by the learned Judge or as admitted by the defendant; and it would be necessary to remit the issue of limitation to the learned Judge for further trial if the plea of limitation were now allowed to be raised.
10. The appeal therefore fails, and it is dismissed with costs.