Sundaram Chetty, J.
1. This second appeal arises out of a suit brought by the plaintiff (appellant), for the recovery of a certain sum of money alleged to be due to him by way of contribution from the defendants in respect of a payment of Rs. 3,500 made by him in satisfaction of a claim for compensation or damages on account of the breach of a covenant contained in a registered sale deed, Ex. B. The first Court gave a decree in plaintiff's favour for a sum of Rs. 562-80 with proportionate costs;. The lower appellate Court reversed that decree and dismissed the plaintiff's suit. Hence this second appeal.
2. It is clear that by reason of the execution of the sale deed, Ex. B, by three persons including the plaintiff's deceased father, there was a joint covenant for title and quiet enjoyment in that sale deed. On account of a defect in the title of the vendors as regards the full extent covered by the sale deed, it is found by the first Court that the payment of Rs. 3,500 by the plaintiff's father in satisfaction of the claim for compensation or damages set up by the Cotton Press, the vendee under Ex. B, was in no sense an overpayment, but, on the other hand, it was an adequate compensation paid in respect of the loss sustained by the Cotton Press, in respect of 4,287 yards of site. That finding is in my opinion, based upon a proper appreciation of the evidence and though the lower appellate Court has not dealt with it, I have no hesitation in accepting that finding as correct. It is true that the plaintiff's father when he made the payment in question did not previously consult the Co-vendors and take their consent. There is no doubt that the liability to compensate in respect of the breach of the covenant contained in Ex. B was joint and several. This case therefore comes under Section 43, Contract Act, though there is some doubt whether Section 69 would apply or not. In order to resist such a claim the defendants may show that on the date of the alleged payment the Cotton Press was not entitled to recover so much amount as compensation and say that the claim for compensation was itself barred by limitation. As regards the first point, I have already found that the amount paid by the plaintiff's father was in no sense an overpayment.
3. Then, on the question of limitation, the learned District Munsif has found that the claim of the Cotton Press for compensation in respect of 4,287 yards of cite lost was not barred on the date of the payment, viz., 22nd November 1924. The correctness of this finding has been attacked by the learned advocate for the respondents with great insistence. The question though at first sight presents some difficulty is in my opinion easy of solution if the facts of this case are viewed in a proper perspective. I can not accede to the contention that by reason of the decree of the Sub-Court, dated 23rd April 1919, the sale under Ex. B should be deemed to be a void sale, i.e. the sale was void ab initio. If, with respect to a portion of the property sold under a registered sale deed, it was found that the vendors had a defective title and by reason of that finding the purchaser could not take possession of that portion, it should not be said that the whole sale became void. It was open to the vendee to avoid the sale itself on the ground that the entire extent stipulated for was not put in his possession, or he might claim compensation or damages in respect of the portion lost, on the ground of partial failure of consideration.
4. In a similar case, it was held that the suit for compensation for breach of express or implied covenant of title and quiet enjoyment in respect of a registered sale deed was governed by Article 116, Lim. Act, though the case may be brought under Article 97, also, vide the decision in Sigamani Pandithan v. Manibadra Nainar A.I.R. 1926 Mad 205 and also the decision in Mahomed Ali Sheriff v. Venkatapathi Raju A.I.R. 1920 Mad 634. Under Article 97 the starting point of limitation is the date of the failure of consideration, which would be the date of the decree of the first Court, wherein the defect in the title of the vendor has been recognized. The starting point for limitation under Article 97 is not postponed to the date of the final decree in such a litigation, but the case may be brought under Article 116 also which gives a period of six years' limitation, on the ground that the breach was in respect of a contract in writing registered. It seems to me that the two articles must be read together, and the extended period of limitation, viz., six years should be allowed in the present case, taking the starting point of limitation as the date of the failure of consideration for the sale. In this view the Cotton Press had six years' time to sue for compensation from 23rd April 1919, the date of the Sub-Court's decree. It follows therefore that when the payment in question was made by the plaintiff's father on 22nd November 1924 the claim of the Cotton Press was subsisting. In this case therefore the defendants cannot attack the payment in question on either of the two grounds above set forth.
5. If it is a valid and bona fide payment made by the plaintiff's father, he has every right to sue the joint promisors, viz. the co-vendors, under Section 43, Contract Act, for contribution. The present suit has been lodged as against one of the co-vendors. The lower appellate Court has overlooked these aspects of the case and confined its attention solely to one point, viz. that the plaintiff's father alone settled the claim with the Cotton Press without consulting the co-vendors and made the payment in question. It is not on the ground that the co-vendors have either consented to the arrangement or acquiesced in it that this claim is put forward but on the general law as set forth in Section 43, Contract Act, the claim is sought to be justified. In this connexion another contention which, I may say, is one that is set up newly in this second appeal, was raised by the learned advocate for the respondents, because of an allegation in the plaint that the plaintiff's father and the other two persons were partners and were carrying on the partnership business before the execution of the sale deed in question. It is argued that any claim of the plaintiff's father in respect of the alleged payment must be deemed to relate to an item of the partnership and it cannot be separately sued for. This objection was never raised in either of the Courts below; on the other hand, there is no warrant for holding that at the time of the payment in question by the plaintiff's father, there was a subsisting partnership between him and the other two persons. Even assuming that they were partners on the date of 'the sale deed Ex. B, there is no warrant for the inference that when the sum of Rs. 3,500 was paid long after the sale deed the partnership continued. If the defendants wanted to avail themselves of such a technical objection to nonsuit the plaintiff, they must have made the necessary averments in the written statement and taken an issue on this point. I am not therefore inclined to entertain a new plea which is now raised in second appeal.
6. As the plaintiff's claim is not open to any legal objection, the mere fact that the previous consent of the other two persons was not obtained is no ground for disallowing it. I cannot agree with the decision of the lower appellate Court and I accordingly set it aside and restore the decree of the District Munsif with costs in all the Courts.