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Govindasamy Pillai Vs. Ramasawmi Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in1Ind.Cas.719
AppellantGovindasamy Pillai
RespondentRamasawmi Pillai
Cases ReferredMalkarjun v. Narhari
Excerpt:
limitation act (xv of 1877), schedule ii, article 91 - sale brought about by fraud is not void ab initio but voidable--subsequent repudiation by vendor, effect of--suit for recovery of property not maintainable, if sale not avoided within time. - - if the sale is not avoided it stands good and the title passes by it......was consideration for the sale though not the consideration recited in the deed, and though the subordinate judge holds the deed to be void ab initio he does not anywhere find that the parties to it did not at its date intend it to be operative. nor does he find that it was without consideration but only as we understand him that the first defendant subsequently repudiated his agreement. in these circumstances his finding that the deed is void ab initio is wrong in law.2. it may be that the widow was entitled to set aside the sale, and that was her view of the matter for she instituted a, suit for that purpose, but to meet an objection as to misjoinder of causes of action, withdrew that part of it which related to the sale of the house with liberty to sue again. she died before she.....
Judgment:

1. Although in paragraph 3(g) of the plaint the plaintiff alleges that the sale by Sampuranam was without consideration, yet in Clause (b) of the same paragraph he sets out consideration. It is contended on his behalf that he is a stranger, but we must take his allegation in the plaint as the basis of the suit. The District Munsif finds that there was consideration for the sale though not the consideration recited in the deed, and though the Subordinate Judge holds the deed to be void ab initio he does not anywhere find that the parties to it did not at its date intend it to be operative. Nor does he find that it was without consideration but only as we understand him that the first defendant subsequently repudiated his agreement. In these circumstances his finding that the deed is void ab initio is wrong in law.

2. It may be that the widow was entitled to set aside the sale, and that was her view of the matter for she instituted a, suit for that purpose, but to meet an objection as to misjoinder of causes of action, withdrew that part of it which related to the sale of the house with liberty to sue again. She died before she could sue again, and no suit was filed within the period of limitation.

3. The present suit is to declare the property liable to attachment by the plaintiff, but the property is not liable to attachment if the title passed to the first defendant by the sale by Sampuranam. On the findings of the District Munsif and the statement of facts by the Subordinate Judge we must hold that the title did pass. Reliance was placed for the respondent on Sundaram v. Sithammal 16 M.k 311, but the judgment of Sir Muttusami Ayyar, J., in that case proceeds on the ground that the vendor had not lost his title. We can see no reason why when the sale is voidable for fraud Article 91 of the Limitation Act should not be applied. If the sale is not avoided it stands good and the title passes by it. It is necessary, therefore, for any one seeking to recover the property on the vendor's title to get the sale avoided before he can recover. Compare Janki Kunwar v. Ajit Singh 15 C.k 58.

4. The only case of all those cited for the respondent which supports him seems to be, Nabab Mir Sayad Alam Khan v. Yasin Khan 17 B.k 755 which followed the case of Bhagvant Govind v. Kondi valad Mahadu 14 SB. 279. The latter case was however practically overruled by the Privy Council in Malkarjun v. Narhari 25 B.k 337. A suit to set aside the sale in the present case is now barred by limitation.

5. The decree of the Subordinate Judge is reversed and that of the District Munsif restored with costs here and in the lower appellate Court.


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