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AdjeIn Dooply and anr. Vs. Ahmed Mahomed Pattel - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1877)ILR2Cal324
AppellantAdjeIn Dooply and anr.
RespondentAhmed Mahomed Pattel
Cases ReferredRidgway v. Wharton
Excerpt:
limitation - act ix of 1871, schedule ii, clause 113--specific performance--trust--laches. - .....of ,the 1,000 shares, which were allotted to seedat; and that when the plaintiffs paid for those shares, seedat should transfer thorn into the plaintiffs' names. the plaintiffs then paid seedat for the shares within a reasonable time, and seedat was bound to transfer them, and the breach of his agreement to do so would clearly have been good ground for an action for damages in england in a court of law.5. but the plaintiffs had another remedy against seedat, and that is the one which they seek to enforce in this suit,--viz., to compel him specifically to perform his contract by transferring the shares, and there is no difficulty in the plaintiffs' way as regards limitation, because by clause 113 of the 2nd schedule of the limitation act, the three years' limitation does not begin to.....
Judgment:

Richard Garth, C.J.

1. It is now further contended that, assuming the plaintiffs are entitled to the shares, their present claim is barred by limitation. The plaintiffs (no doubt foreseeing this difficulty) have attempted to guard against it in their plaint by stating that the shares were held for them by Seedat in trust; and we observe that the learned Recorder has so dealt with the case, and has considered that, upon this ground, the suit is not barred by limitation.

2. We feel great difficulty in adopting this view; and even if we could look at the transaction in the light of a trust, we do not see that there would be any answer to the plea of limitation.

3. If the facts proved by the plaintiffs gave rise to any trust, it would clearly not be 'an express trust,' or, in other words, 'a trust for any specific purpose,' within the meaning of Section 10 of the Limitation Act. It could only be one of those implied trusts, which result from particular relations existing between parties not created for any specific purpose, or by any express declaration of, or conveyance to, the persons who undertake the trust (see the notes to Section 2 of Act XIV of 1859, and authorities there cited (Thomson on Limitation, 1st ed., pp. 233--237).

4. The transaction in this case as described by the plaintiff himself in his evidence is simply a contract, and nothing more. It was agreed, he says, between Seedat and the plaintiff's, that the plaintiffs should take 120 of ,the 1,000 shares, which were allotted to Seedat; and that when the plaintiffs paid for those shares, Seedat should transfer thorn into the plaintiffs' names. The plaintiffs then paid Seedat for the shares within a reasonable time, and Seedat was bound to transfer them, and the breach of his agreement to do so would clearly have been good ground for an action for damages in England in a Court of law.

5. But the plaintiffs had another remedy against Seedat, and that is the one which they seek to enforce in this suit,--viz., to compel him specifically to perform his contract by transferring the shares, and there is no difficulty in the plaintiffs' way as regards limitation, because by Clause 113 of the 2nd schedule of the Limitation Act, the three years' limitation does not begin to run till ' the plaintiff has notice that his right is denied.'

6. The plaintiff's' right in this case, so far as appears, never was denied until immediately before the suit was brought. Indeed, so far as Seedat was concerned, he constantly and invariably admitted it; so that the Statute of Limitation is really no bar.

7. But then the defendant says, that, in order to entitle the plaintiffs to a specific performance of this contract, they should, according to a well-known rule in equity, have come to the Court as early as they reasonably could. But this is one of that well-known class of cases where one party to a contract has boon allowed for years by the other party to enjoy all the beneficial interest which the contract could confer, but without being clothed with the title which would perfect his legal rights--as for instance, where a lessee under an agreement for a lease has enjoyed the property for years, as completely as if the lease had actually been granted. Under the circumstances if the intended lesser were to refuse the tenant his lease, or any of the benefits which he had a right to enjoy under it, the tenant might always come into a Court of equity, and compel the landlord to grant the lease. See per Lord Redesdale in Crofton v. Ormsby 2 Sch. & Lef. 583 at p. 604, Clarke v. Moore 1 Jon. & Lat. 723, Ridgway v. Wharton 6 H.L.C. 238 at p. 292 per Lord St. Leonards and Ors. cases, cited in Fry on Specific Performance of Contracts, 322.

8. In the same way here, the plaintiffs have from the time when they paid these shares, enjoyed the beneficial interest in them; and they never had occasion to insist upon their legal title to the shares being completed by transfer, until their title to them was denied by the defendant.

9. We, therefore consider that, in the result the dicision of the learned Recorder was perfectly just, and we, accordingly, dismiss this appeal with costs.


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