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Mamabi and ors. Vs. Acharath Parakat--maliga Purazil Cheriye Kunhifappi Haji and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in17Ind.Cas.337; (1912)23MLJ607
AppellantMamabi and ors.
RespondentAcharath Parakat--maliga Purazil Cheriye Kunhifappi Haji and ors.
Cases Referred and Ammoti Haji v. Kuhaycm Kutti I.L.R.
Excerpt:
- .....the question of limitation against the appellant, reckoning the period of limitation from the date of sale and as we have stated it is not found when the ottidar came to know of the execution sale. that is a point which must be decided, for in our opinion time would only run from the date of the ottidar's knowledge of the sale. we therefore resolve to set aside the decrees of both the courts and remand the case to the district munsif for disposal according to law having regard to the above remarks.3. we may mention that in some of the cases viz., in cheria krishnan v. vishnu i.l.r. (1892) m. 198, vasudevan v. keshavan i.l.r. (1884) m. 309 and ammoti haji v. kuhaycm kutti i.l.r. (1892) m. 480 language is used which might imply that the right of pre-emption consists in a right to have.....
Judgment:

1. This appeal arises in a suit instituted by an ottidar to enforce his right of pre-emption and the question argued before us is, whether the lower courts are right in dismissing the suit on the ground that it is barred by limitation without finding that six years had elapsed since the date the plaintiff came to know of the sale by auction. There is no finding when the plaintiff had knowledge of the auction sale. We are asked to consider whether it is enough for an ottidar who seeks to enforce his right of pre-emption to show that he has come to court before the expiry of six years from the date he came to know of the sale to a third person.

2. It is contended on behalf of the respondents that Article 120 of the Limitation Act does not imply that time runs from the date when the ottidar came to know of the sale, in other words, the right to sue arises from the date of the sale or the contract to sell, independently of when he had knowledge of such sale or contract. We may mention that there is no dispute before us that Article 120 applies to this case for it is clear that Article 10 does not apply because the ottidar himself is in possession and there has been no registered instrument of sale within the meaning of that article. Article 120 is in general terms. The third column of that article lays down that the six years run from the date ' when the right to sue accrues.' It is argued by Mr. Seshagiri Aiyar on behalf of the respondent that we should be adding words which are not in the article if we were to hold that the right to sue arises on the plaintiff coining to know of the sale of which he complains. No doubt generally speaking Article 120 does not make it a condition that the plaintiff should have knowledge of the facts which gave rise to the cause of action before time begins to run. But there can be no doubt and this Mr. Seshagiri Aiyar very fairly concedes that if the nature of the right imports as a necessary condition, knowledge of certain facts, then the right to sue cannot be said to arise in such a case unless the plaintiff has the necessary knowledge. The right of pre-emption which an ottidar has depends entirely on the custom which prevails in the West Coast. The materials from which the usage is to the gathered and the nature and extent of the right of pre-emption are to be found in certain decisions of this Court. The cases to which we have been referred are Cheria Krishncan v. Vishnu I.L.R. (3.882) M. 198 Vasudeva v. Keshavan I.L.R. (1884) M. 309, Kanburankutti v. Uthotti I.L.R. (1890) M. 409 Ammoti Haji v. Kunhayan Kutti I.L.R. (1892) M. 430, Krishna Menon v. Keshavan I.L.R. (1897) M. 305Ramasami Pattar v. Chinnan Asari I.L.R. (1001) M. 449, Kurri Veera Eeddi v. Kurri Bapireddi I.L.R. (1906) M. 336 and Kada Katnavalli Sanharan Musad v. Moppatt I L.R. (1909) M. 388. None of these authorities directly decide the present question. The case of Ramasami Pattar v. Chinnan Asari I.L.R. (1001) M. 449 is hardly in point, because the right to purchase the property in preference to third persons was conferred by an express contract; and the Full Bench decision in Kurri Veera Beddi v. Karri Bapi Reddi I.L.R. (1906) M. 336 is cited only to show that a mere contract in favour of the defendant to sell the property to him is no answer to a suit in ejectment. Here the suit is by the ottidar himself to establish his right. The other cases deal with different questions relating to the right of pre-emption possessed by an ottidar. Apart from any particular form of language that has been used in some of these cases, we think it can be fairly inferred from the course of decisions in this Court that the right of ottidar consists in a right to elect, when there has been an attempt on the part of the owner of the property to sell it to a third person, whether he will buy it for the same price as that offered by the third person or not. It is obvious that such a right can only be exercised when the ottidar knows first of all that the property is sold or attempted to be sold to another person and what the terms are on which it is so proposed to be sold. If he has no knowledge of either fact he is not in a position to make any election. As it is put in some of the cases an ottidar is entitled to have an opportunity given to him to make the election to which his right of pre-emption entitles him. If this be correct apprehension of the ottidar's right we think it follows that the right to sue does not arise until the ottidar knows of the sale of the property and the terms of the sale. Both the lower Courts have dismissed the suit finding the question of limitation against the appellant, reckoning the period of limitation from the date of sale and as we have stated it is not found when the ottidar came to know of the execution sale. That is a point which must be decided, for in our opinion time would only run from the date of the ottidar's knowledge of the sale. We therefore resolve to set aside the decrees of both the Courts and remand the case to the District Munsif for disposal according to law having regard to the above remarks.

3. We may mention that in some of the cases viz., in Cheria Krishnan v. Vishnu I.L.R. (1892) M. 198, Vasudevan v. Keshavan I.L.R. (1884) M. 309 and Ammoti Haji v. Kuhaycm Kutti I.L.R. (1892) M. 480 language is used which might imply that the right of pre-emption consists in a right to have an offer made by the owner of the property to sell the property to the ottidar for the same price for which he has contracted to sell to a third person. We might have some hesitation in saying that this is an accurate definition of the nature of the right, because such a definition if strictly pursued to its logical conclusion might lead to difficulties and complications. We, however, refrain from pronouncing any definite opinion on this point as the learned Advocate-General says that if it be found that his client had knowledge of the sale more than six years before the institution of the suit he would not be prepared to contend on the facts of this case that the suit would still be within time, because no offer was made to him by the owner of the property before the auction sale.

4. The costs of this appeal will abide the result.


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