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Bhagathyammal Vs. Dhanabagyathammal - Court Judgment

LegalCrystal Citation
SubjectContract;Limitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2352 of 1977
Judge
Reported inAIR1981Mad303
ActsContract Act, 1872 - Sections 73; Transfer of Property Act, 1892 - Sections 55(2); Limitation Act, 1963 - Schedule - Article 53
AppellantBhagathyammal
RespondentDhanabagyathammal
Cases ReferredSubbaraya Reddiar v. Rajagopala Reddiar
Excerpt:
.....- no question of any later date being taken into account - starting point of limitation is date of sale - suit barred by limitation. - - he held that the evidence clearly showed that the fourth defendant had no title. it is this decision which is challenged by the unsuccessful fourth defendant in both the courts in the second appeal. 4. before considering the, question of limitation, i may as well notice whether the plaintiff would be. the appellate court allowed the expenses a,;well. himself knew full well that the defendant had no title to the property. his judgment under appeal may be set-out here which is as under thus, the evidence available clearly shows that the fourth defendant had no title or possession of any specific portion in the suit survey number at any time. would..........by the plaintiff in 0. & no. 1027 of 1970 in the court of the district munsif of pattukottal the suit property is situate in maharaiasamudram village which was an inam village taken over by the government. proceedings for patta in relation to the property were said to be pending. the plaintiff purchased this property under sale deed dated 16th june. 1968 from the fourth defendant. alleging that defendants 1 to 3, who attempted to purchase the suit property from the fourth defendant did not succeed and that they obstructed the plaintiff from enjoying the suit property be came forward with the present suit initially far the declaration and permanent injunction or in the alternative, for recovery of possession as against defendants 1 to 3. the second defendant died during the pendency of.....
Judgment:

1. This second appeal has been filed by the plaintiff in 0. & No. 1027 of 1970 in the court of the District Munsif of PattukottaL The suit property is situate in Maharaiasamudram village which was an inam village taken over by the Government. Proceedings for Patta in relation to the property were said to be pending. The plaintiff purchased this property under sale deed dated 16th June. 1968 from the fourth defendant. Alleging that defendants 1 to 3, who attempted to purchase the suit property from the fourth defendant did not succeed and that they obstructed the plaintiff from enjoying the suit property be came forward with the present suit initially far the declaration and permanent injunction or in the alternative, for recovery of possession as against defendants 1 to 3. The second defendant died during the pendency of the suit and -his legal representatives are defendants 5 and 6. The fourth defendant, the vendor to the plaintiff was impleaded on 2-2-1972 in pursuance of an application filed on 16-10-1971- Along with this application there was a prayer for amendment of the plaint for recovery of damages from the fourth defendant. As in the -present appeal we are concerned only with the fourth defendant, it is unnecessary to notice the defence of the other defendants except to say that they claimed title to the suit property. The fourth defendant in her written statement contended that the Property belonged to an inamdar by name Siviii Rarnachandra Katae Rao Sahib and that his son issued a Datla to her in respect of the suit land. Sh- claimed to have been in possession thereof to the extent of 2 acres and 61 cents. The plaintiff, according to her, entered into a sale deed for the purchase of the property for As. 2000 but had actual1y paid only Rs. 800 retaining the balance for , being paid after peaceful possession of the property was obtained. It was contended that as he had not honoured_ the contract, the plaintiff was not entitled to any relief as against her. There was also a plea of limitation.

2. The learned District Munsiff found that the plaintiff was not entitled to the relief of. declaration or injunction or to the relief for recovery of possession- He held also that the fourth defendant had no title to the suit property. He however decreed the suit in favour of the plaintiff for. damages against the fourth defendant.

3. 'The fourth defendant filed an appeal which was heard by the learned District Judge, West Thanjavur. He went into the question whether the plaintiff was entitled to any damages from the fourth defendant. He held that the evidence clearly showed that the fourth defendant had no title. or possession. of any specific portion of the suit survey number at any time and that taking advantage of some old pattas issued in the name of the fourth defendant, the plaintiff manouvred to get a sale deed in her k4our so that she could try her luck in a court of law. In' his view the plaintiff had wantonly purchased litigation.- He went into the question of limitation which was likely to arise in, the event of, the Plaintiff being entitled-to the damages.. He found that the starting point of limitation would be the date of sale and as the amended claim as against the fourth defendant was made only an 12-9-1,972, the suit as against the fourth defendant was barred by limitation. It is this decision which is challenged by the unsuccessful fourth defendant in both the courts in the second appeal.. At the time of the, admission of the second appeal the question, formulated for decision was as follows:

'Whether the claim for refund of the sale 'consideration is barred by limitation?'

The learned counsel for the appellant wanted to argue that some principle of estoppel based, on S. 115 of the Indian 'Evidence Act (sic).-He was not in a position *to point out any ground in the grounds of appeal or even any question as formulated-by him at the time when the appeal was admitted in order t o consider . whether. notwithstanding 'the framing of the question in the manner mentioned above, he could be allowed to go into the question of estoppel. Therefore. I confine myself only to the question of limitation and the incidental Points that.arise there from.

4. Before considering the, question of limitation, I may as well notice whether the Plaintiff would be. entitled to any damages at . all. This - point appears to be concluded against the appellant by a decision of this court.. rendered by Kailasam J. as he then was, in Ramalinga Padayachi v. Natesa, : AIR1967Mad461 . In that ' case the plaintiff purchased a property on 30th Sept., 1954 from the defendant. One Manickam Pillai agreed,to sell to the defendant Survey No. 21/2 and to one Raiammal and others Survey No. 20/14. Sale deeds were executed by Manickarn Pillai as per the agreement. When the sale deed was actually written in favour of the defendant in respect of S. No. 2112, Survey No. 20/14 was wrongly inserted, A similar mistake occurred. in the sale deed in favour of Rajamnial. In spite 09 this mistake, the defendant was enjoying survey No. 21/2 -while Rajammal was enjoying survey No. 20/14. the mistake was subsequently found out and rectification deeds were executed on 5-8-1954. The plaintiff, a relation the defendant, was hostile to Rajammal husband on coming to know of the mistake in the sale deeds executed by Manickam Pillai and with a view to giving trouble to Raiammal's husband, he entered into a sale deed with the defendant in respect of Survey No. 20/14. He filed a suit against Rajammal and others for declaration of his title and in the alternative for Possession. Having lost in all the courts he filed the suit which came on second appeal to this court before Kailasam J. for recovery of sale price and for the expenses incurred by him in the litigation as against Rajammal and others. The trial court gave a decree for return of the purchase money and disallowed the claim for expenses. The appellate court allowed the expenses a,; well. In the second appeal to this Court the question related to the admissibilitv of the claim relating to the litigation expenses. It was common ground before the learned Judge that 'he plaintiff knew that the defendant had no title to the property conveyed by him. The learned Judge went into the question as to how far knowledge of the defect in title was relevant. Referring to a Full Bench decision of this court in Adikesavan Naidu v. Gurunatha Chetti. ILR 40 Mad 338: AIR 1918 Mad 1315 it was held that knowledge of the purchaser of the defect of title in his vendor did not affect his right to recover damages. It was pointed out at page 102 as follows -

'But the rule cannot have any application to a case where the plaintiff as in the present case. himself knew full well that the defendant had no title to the property. This is the view that was taken in Gopala Iyengar v. Murnachi Reddiar, 17 MLW 254: AIR 1923 Mad 392, and Yagnanarayana v. Yagennadha. : AIR1932Mad1 .'

5. Thus the principle is clear that where a person deliberately purchases a property with the knowledge of defecl of the vendor's title, he cannot be granted damages for violation of the covenant for title. Though the decision in that particular case turned on the litigation expenses alone, the same principle would have been applied to the return of the , purchase money, had it been litigated in 'the second appeal.

6. The finding of the learned District Judge in -paragraph 17 of. His judgment under appeal may be set-out here which is as under

'Thus, the evidence available clearly shows that the fourth defendant had no title or possession of any specific portion in the suit survey number at any time. Considering the evidence available in this case, it is clear that taking advantage of some old pattas issued in the name of the fourth defendant the plaintiff has manoeuvred to get a sale deed in her favour, so that she can try her luck in a court of law.This is a clear case wherein the plaintiff has wantonly purchased litigation.'

The principle of damages is based on the representation being made by a party which was believed in and acted upon by another so that he sustained a loss on the basis of the belief in the said representation. In the present case in view of the finding given above, it is clear that the Plaintiff had not acted on the basis of any representation and he deliberately purchased the property with a view to speculate on a litigation. In such a case, the principle laid down by Kailasam J. would clearly apply and the plaintiff would not be entitled to damages.

7. Even assuming that the plaintiff would be entitled to damages, the question may be gone into. The matter has been considered in several decisions of this court. It is unnecessary to go into any decision rendered prior to the case in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887: AIR 1915 Mad 708. In that case a person who had title to a certain immovable property, voidable at the option of another sold it to a third party and put the third party in possession. The Person who had the option brought a suit against the vendor as well as the purchaser and got a decree and obtained possession thereof in execution. The third party then filed a suit against his vendor for return of the purchase money. The question related to the period of limitation applicable to such a case. At page 889 the learned Judge (Seshagiri Ayyar J.) went into the question as to when the cause of action for damages arose in the light of several cases that were cited before him and he classified the cases as follows-

'These cases can roughly speaking be classified under three heads-(a) where from the inception the vendor had no title to convey and the vendee had not been put in possession of the property,;(b)where the sale is only voidable on the objection of third parties and possession is taken under the viodable sale; and (c) where though the title is known to be imperfect, the contract is in part carried out by giving possession of the properties. In the first class of cases, the starting point of limitation will be the date of the sale In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in Possession and that is what at the outset under a contract of sale a purchaser's entitled to, and so long as his possession is not disturbed. he is not damnified. The cause of action will there fore arise when its right to continue in possession is disturbed In the third class of cases also it is said that thecause of action wi.11 arise only on the disturbance of possgssion,'

This decision was affirmed on appeal -Sree Thillaikannu Achi v. Abdul Kadir, 64 MLJ 336 : AIR 1933 Mad 126, and also Lakshmanan Chettliar V. Marrudan Chettiar, : AIR1962Mad150 . In the latter case, it is stated that the decision was taken on Utters Patent appeal and confirmed by Oldfield and Sadasiva Aiver JJ.

8. In ILR 38 Madras itself, there is another decision reported at page 1171 in Arunachala v. Ramasami, where Seshagiri Iyer's view in Subbaraya Reddiar's case ILR 38 Mad 887: AIR 1915 Mad 708 was approved. That was a case in which the sale deed was executed in 1904 by a Person who claimed to have been allotted a particular property which he sold. It turned out that the partition was not a valid one and therefore at the time of the sale the vendor had no title to convey. The purchaser, therefore, sued for recovery of the consideration money and there was a defence of limitation. The learned Judges applied Art. 116 of the Limitation Act. If that Art. was applied, then it was not denied that the suit was not barred. The matter was, therefore, sent back for fresh disposal.

9. The decision in Subbarava Reddiar V. Rajagopala Reddiar, ILR 38 Mad 897: AIR 1915 Mad 708 was specifically approved by the Supreme Court in Ramaswami v. Muthukrishna. : [1966]3SCR608 . In that case, the suit properties belonged to the second and third defendants. The second defendant sold the properties to one Mr. Sarrna by a sale deed, dated 12th Dec., 1912, which he executed for himself and as guardian of the third defendant. There was an indemnity bond against any loss that might be caused to the vendee in case the sale of his minor's share should later on be set aside. The Purchaser's son sold the property to the father of the plaintiffs and assigned also the indemnitv bond. The third defendant. the quondam minor, after attaining majority filed a suit for setting aside ~ he sale deed and his suit was decreed. The plaintiffs then brought the suit which went on appeal to the Supreme Court alleging that they had sustained damages by the loss of one half of tile suit properties and that they were entitled to recover the same from the second defendant, the father, personally and out of his properties. The plaintiff's suit was decreed and on appeal this court modified the decree and limited the quantum of damages. In the appeal before the Supreme Court, the question whether the plaintiff was entitled to damages was gone into and in the course of the judgment, their Lordships stated at page 361 thus:

'A breach of the covenant can only occur on the disturbance of the vendee's possession and so Iona as the vendee remains in Possession he suffers no loss and no suit can be brought for damages either on the basis of the indemnity bond or for the breach of a covenant of the warranty of title. The view that we have expressed is borne out by the decision of the Madras High Court in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887.'

10. The passage that has been extracted earlier here from the said judgment has been quoted with approval. Thus. the law is well settled that where. from the inception the vendor had no title to convey and the vendee has not been put in possession of the property, the breach occurred even on the date of the sale and the starting point of the limitation would be the date of the sale. This is a case which falls within proposition (a) enunciated bv Seshagiri Aiver J. in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887: AIR 1915 Mad 708. It is unnecessary to go into the other citations. The corresponding Article to Art. 116 is Art. 55 of the Limitation Act, IM. Under this Article. a period of three years is provided from the date when the contract was broken. The breach of the contract occurred Immediately in the present case because the plaintiff failed to of the property from ant. The fact that the obtain possession defendant is clear the court below. obtain possession the fourth defend plaintiff did not from the fourth from the judgment of Reference has been made in paragraph 20 of the judgment to the payment of only Rs. 800 out of Rs. 2000 the balance of Rs, 1200 being retained for payment after getting possession of the property from defendants and 2. Referring to this aspect and to the evidence of D. W. 2, the court below came to the conclusion that the plaintiff was not at all put in possession of any portion of the suit survey number. The result was that the breach occurred simultaneously with the sale deed and, therefore, there is no question of any later date being taken into account. As the breach occurred on the date of the sale, namely 16-6-1969 and as the suit as against the fourth defendant was filed only in Sept., 1972. more than three years later, as a result of the amendment of the plaint, the suit is clearly barred by limitation. The second appeal is accordingly dismissed and there will be no order as to costs.

11. Appeal dismissed.


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