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Syed Abdul Huq Sahib Vs. Raj Muhammad Kabuli and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1943Mad28; (1942)2MLJ482
AppellantSyed Abdul Huq Sahib
RespondentRaj Muhammad Kabuli and ors.
Cases ReferredIn Authinarayana Aiyar v. Krishnaswami Aiyar
Excerpt:
- .....entitled to a lien on the property by reason of the provisions of section 55 of the transfer of property act. the suit was brought within twelve years of the last payment towards the amount due on the promissory note. article 132 of the limitation act prescribes a period of twelve years to enforce payment of money charged upon immovable property, the twelve years commencing to run from the date when the money sued for became due. the district munsiff and on appeal the district judge held that as the suit had not been brought within twelve years of the date of sale it was out of time. the appellant filed an appeal from the district judge's decision to this court, and chandrasekhara ayyar, j., agreed that the suit had been filed out of time, but he gave a certificate which has permitted.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The question for decision in this appeal is one of limitation. The appellant is the plaintiff in the suit and the Courts below have held that his action is barred by the law of limitation. We do not share this opinion.

2. On the 15th January, 1920, the plaintiff sold certain immovable property to one Mohamed Ghouse for the sum of Rs. 1,750 of which Rs. 1,150 was paid immediately. For the balance of Rs. 600, the purchaser executed a promissory note in favour of the Vendor. On the 16th July, 1920, Mohamed Ghouse mortgaged the property to the Catholic Permanent Fund. The mortgage debt was not repaid and the mortgagee was compelled to file a suit on the mortgage. As the result, a decree was obtained and in execution the property was sold, the respondent being the purchaser. On the 30th December, 1920, 9th January, 1921 and 5th July, 1924, Mohamed Ghouse made payments to account of the amount due on the promissory note which he had executed in favour of his vendor for Rs. 600. It is not disputed that these payments were suitably acknowledged and that each operated to extend the period of limitation.

3. In 1927, the appellant instituted a suit against Mohamed Ghouse to recover the sum of Rs. 187-7-0, the balance of the amount due on the promissory note. He obtained a decree, but in execution he was not able to realise anything. Consequently he filed the suit out of which this appeal arises, claiming that as the unpaid vendor he was entitled to a lien on the property by reason of the provisions of Section 55 of the Transfer of Property Act. The suit was brought within twelve years of the last payment towards the amount due on the promissory note. Article 132 of the Limitation Act prescribes a period of twelve years to enforce payment of money charged upon immovable property, the twelve years commencing to run from the date when the money sued for became due. The District Munsiff and on appeal the District Judge held that as the suit had not been brought within twelve years of the date of sale it was out of time. The appellant filed an appeal from the District Judge's decision to this Court, and Chandrasekhara Ayyar, J., agreed that the suit had been filed out of time, but he gave a certificate which has permitted this appeal being filed under clause 15 of the Letters Patent.

4. In Authinarayana Aiyar v. Krishnaswami Aiyar 1924 M.W.N. 755., Devadoss, J., held that the statutory period for the enforcement of a charge could not be extended by agreement of parties and unless the suit was brought within twelve years from the date of sale the statutory lien ceased to exist. This decision was reversed on appeal by Wallace and Madhavan Nair, JJ., in L.P.A. No. 150 of 1924, but their judgment does not appear to have been reported. Chandrasekhara Ayyar, J., has referred to these decisions and while not doubting the correctness of the judgment of Wallace and Madhavan Nair, JJ., he considered that the period of limitation fixed by article 132 of the Limitation Act could not be extended without an acknowledgment of liability being made expressly in respect of the statutory charge.

5. In our opinion, this is not the correct view of the law. An unpaid vendor is given a lien on the property by Section 55 and that lien continues while the vendor has an enforceable claim against his vendee in respect of the purchase consideration. On the 5th July, 1924, when the last payment to account was made by Muhammad Ghouse, another period of limitation commenced to run. The position was the same as if a new promissory note had been given on that date for the balance outstanding, and therefore the unpaid vendor had twelve years from that date in which to enforce his statutory lien. For these reasons, we hold that the suit was filed in time and the appeal will be allowed. As the respondent has raised other defences in his written statement the case will have to be remanded to the trial Court for trial on the other issues. We wish to make it clear that our decision on the question of limitation has no bearing on the question of, the maintainability of the suit.

6. The appellant is entitled to his costs before the District Judge, Chandrasekhara Ayyar, J., and in this Court. The costs of the trial Court will abide the result of the further hearing. The appellant will be entitled to return of the court-fees paid on his memoranda of appeal.


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