1. This is can appeal from the judgment of the learned Additional District Judge of Sylhet by the Plaintiffs in the suit. The suit was dismissed on the ground that it was barred by the Act of Limitation. The learned Additional District Judge applied Article 62 of the Limitation Act to the case holding that this was a 'suit for money payable by the Defendant to the Plaintiffs for money received by the Defendant for the Plaintiffs' use.' The learned Vakil who appeared for the Plaintiffs argued that that article was not applicable, but that Article 116 applied. The suit was for establishment of title to and recovery of possession of two annas share in the property described in the schedule to the plaint, it being alleged that the Plaintiffs purchased such share from Defendant No. 1. There was an alternative prayer that in case it was found that the Plaintiffs were not entitled to possession, a decree for the refund by the Defendant No. 1 of the consideration paid with interest thereon be passed. In the course of this litigation it was established that, at the time of the Plaintiff's purchase from Defendant No. 1 he had no interest in the property inasmuch as the property had passed to the other Defendants by reason of a previous sale : and, on remand, the learned Subordinate Judge had to deal only with the question of the recovery of the consideration paid by the Plaintiffs. Both the Courts treated the case as one in which the consideration had entirely failed and therefore it was a suit for money received by the Defendant No. 1 to the Plaintiffs' use. In order to see what the nature of the suit was, the learned Vakil for the Plaintiffs referred us to some portions of the plaint and to the prayer. In one of the paragraphs (para. 3) the Plaintiffs alleged that they were entitled to possession of the property or in the alternative the Defendants or one of them were bound in equity, law and justice to pay back to the Plaintiffs the purchase-money with interest as compensation and the prayer was that if the suit could not be decreed in respect of the land in suit, then a decree might be passed against Defendant No. 1 directing him to pay Rs. 450 with interest from the date therein mentioned. Having regard to the plaint and the prayer and the form of the suit, in my judgment, this is not a case to which Article 62 applies : and I am of opinion that the learned Vakil for Plaintiffs is right in his contention that this is a case to which Article 116 of the Limitation Act applies. According to that article, in suits for compensation for the breach of a contract in writing registered, the period of limitation is six years from the time when the period of limitation would begin to run against a suit on a similar contract not registered. It is agreed that if Article 116 applies the suit is within time and consequently in my judgment, this appeal ought to be allowed.
2. I agree. The Plaintiffs brought this suit in the first place to recover possession of two annas share of certain land to which they made a title under a conveyance executed in their favour by the Defendant No. 1 on the 21st Pous 1318 (6th January 1912). In the alternative the Plaintiffs claimed a refund of purchase-money on the footing that at the date of sale the Defendant No. 1 had no title to convey. In the trial Court the learned Subordinate Judge found that during the minority of the Defendant No. 1 his mother had sold the land in question to the Defendants Nos. 2 to 37 and that this prior gale by the mother was justified by legal necessity. This finding does not appear to have been since questioned. By this decree the Subordinate Judge dismissed the suit as against the Defendants Nos. 2 to 37, but condemned the Defendant No. 1 to repay the purchase-money with interest at 12 per cent, per annum. The appeal of the Defendant No. 1 to the District Court was heard by the then Additional District Judge Mr. Roy. The point was then taken for the first time that the suit was barred by Article 62 of the schedule to the Limitation Act. The article applies to a suit 'for money payable by the Defendant to the Plaintiff for money received by the Defendant for the Plaintiffs' use' and the period of limitation is three years from the time when the money is received. In this case the money was received in 1.912 and the suit was not brought till 1917. The learned Additional Judge considered that this was a material point; as no doubt it was, but he did not decide it. He remanded it to the trial Court with a direction that that Court should come to a distinct finding upon it and decide the case after taking such evidence as the parties might adduce. On the remand it was held by the trial Court that Article 62 applied and that the suit was time-barred. The Subordinate Judge, therefore, dismissed the suit and his decree was affirmed by the Additional Judge, Mr. Banerjee; from whose judgment the present appeal has been taken. As there was no appeal from the order of remand, it became final and cannot now be attacked. But I take this opportunity to observe that in my opinion it was a bad order from every point of view. The learned Additional Judge who made it entirely misapprehended his powers and liabilities as a Court of Appeal. In the first place the Code makes no provision for a remand in such circumstances. In the second place no reason appears why the point raised, which was a point of law, should involve the investigation of any facts which had not already been investigated at the trial. The liberty given to the parties to adduce additional evidence was, therefore, wholly unnecessary. Issues had been settled; the case had been fully tried and it is difficult to conceive what materials the parties could supply for the decision of the point of limitation other than those then on the record On the remand no additional evidence was in fact offered by the parties. If an investigation of new facts had been involved, the Additional Judge might well have refused to allow a point of this kind to be raised for the first time in appeal; or he might have proceeded under Clause 41, Rule 25. If the materials on the record were sufficient for arriving at a decision; as it appears they were, it was the learned Additional Judge's plain duty to undertake the responsibility of deciding the point himself. If he had directed his attention to relevant provisions of the Code, he would have gathered for himself that it was not competent for him to remand the point for decision by the trial-Court. The question to be decided on this appeal is whether on the remand the Courts below have rightly held that the present case is governed by Article 62. In my opinion the answer should be in the negative. Though no covenant of title was expressed in the conveyance to the Plaintiffs, nevertheless, under Section 55, Clause (2) of the Transfer of Property Act, the seller shall be deemed to contract with the buyer that the interest which the seller proposes to transfer to the buyer subsists and that he has power to transfer the same.' It follows that the conveyance itself imports a covenant of title Basaraddi Sheikh v. Enajaddi Maleah (1898) 25 Cal. 298 and the suit as a suit for the refund of the purchase-money may be regarded as a suit for damages for breach of this covenant. The article applicable to such a suit, where as hare, the conveyance is registered, is in my opinion, Article 116. In Biswanath Gorain v. Surendra Mohan Ghose (1913) 9 C.W.N. 102 cited in the judgment appealed from, the attention of the learned Judges was not directed to the possibility of applying Article 116. But if there is no precedent in this Court the question in the form in which it is now presented has been fully discussed by the Madras High Court in Arunachala Aiyer v. Ramasami Aiyer (1914) 38 Mad. 1171 and I desire to concur in the reasoning of the learned Judge. It was ingeniously suggested for the Defendant No. 1 that inasmuch as Article 115 speaks of the breach of any contract, 'express or implied, not in writing registered,' Article 116, of the breach of contract in writing registered, omitting any reference to implied covenant or title. The suggestion is in my opinion unavailing. In suits within Article 115 the contract may be not only not registered but also not in writing, and the words 'express or implied' were inserted to embrace all unregistered contracts in whatever way they may have been made. Article 116 on the other hand applies to the particular case of contracts in writing registered. It appears to me that the implied and the express covenants cannot be separated in the manner suggested. If 'a contract' in the sense of the article is in writing, the writing represents the implied as well as the express covenants. Whereas in the case of a conveyance, the law imports or reads into the writing such covenants as a covenant of title, the writing becomes the repository of the whole contract including the implied covenants. In the language of the learned Judges in Madras the covenant of title is attached to the conveyance. It is a question of the construction of the writing. Similarly when the writing is registered the registration will be effective for the purpose of all covenants which the written words properly construed express or imply. The reasoning covers, I think, not only covenants implied by law but all implied terms, collected from the language used by any legitimate process of construction or interpretation. It cannot have been intended that the express terms of a written and registered contract should be governed by one article arid the implied term by another. I may add that it has been held in England that when the terms of an expired lease as to repairs are implied in a written agreement for a new tenancy, the terms are 'contained in' the writing within the meaning of the Conveyance Act, 1881 Cole v. Kelley (1920) 2 K.B. 106. I concur therefore in allowing the appeal and in the order which the learned Chief Justice has proposed.
3. We think it desirable to record our opinion to the effect that we see no reasons to differ from the finding of the trial Court contained in the learned Subordinate Judge's judgment of the 3rd of October 1917 that the first sale was a valid sale, with the result that the plaintiffs should not recover possession of the property. We also agree that the whole amount of the purchase-money should be paid to the Plaintiffs by Defendant No. 1.
4. The result of our judgment is to restore the decree made by the learned Subordinate Judge on the 3rd October 1917. A decree therefore will be made in favour of the plaintiffs against the Defendant No. 1 for Rs. 713-4-0 and such sum will carry interest at the rate of six per cent, per annum from the date of that decree (the 3rd October 1917) until realization. The remainder of that decree as regards the other Defendants will stand. The Plaintiffs are entitled to their costs against the Defendant No. 1 in this Court and in the lower Court both before and after remand. I desire to add that I entirely agree with what my learned brother said about the impropriety of the order of remand which was made by the learned Additional Judge on the 13th of February 1919. I will only add that the improper order resulted in a delay of something like fifteen months.