JOSEPH MATHEW Vs. G, GOPALA PILLAI AND ORS.
HIGH COURT OF KERALA
G, Gopala Pillai And Ors.
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Nandana Menon, J. -
(1.) THIS second appeal is by the 9th Defendant and arises out of a suit for realization of amounts alleged to be due to the Plaintiffs in connection with the sale deed executed on 14 -10 -1101 in favour of one Korath Lukka, father of Defendants 1 to 5 and husband of the 6th Defendant. Ext. A dated 14 -10 -1101 is the copy of the said deed. Under that Rs. 2800 out of the consideration was directed to be paid to one Kalliani Annua. The vendee did not carry out the direction. Kalliani Amma obtained a decree as O.S. 532 of 1104 against the Plaintiffs and others, copy of the said decree being Ext. D. The Plaintiffs contending that they had to satisfy the decree debt on 20 -2 -1117 filed the suit claiming the amount they had to spend with interest charged upon the paint schedule properties covered by the sale deed and from the assets of Korathu Lugga, the deceased Vendee. The 9th Defendant who had obtained an interest in the properties contended that the Plaintiffs had no right to claim a charge and that the suit was barred by limitation.
The trial court upheld tire defence contention and refused the claim for a charge and gave a decree only against the assets of the vendee. In the appeal preferred by the first Plaintiff the lower a court holding that the learned Munsif was wrong in refusing a charge granted the said relief is 6.
(2.) NOW on behalf of the 9th Defendant it is contended that no charge was created under Ext. A; that the suit was only for damages and hence no charge can be claimed and that anyway the relief against the properties is barred. In Ext. A there is an indemnity clause to the effect that if damages were caused to the vendor due to the failure of the vendee to pay off the amounts reserved out of the consideration as directed therein the vendee will be liable for the same. There is no reference to the properties being liable. The lower appellate court relying upon Madhavan. Pillai v. Kurien, 1948 Ker LR 783 (A) has held that there was a valid and enforceable charge created under sale deed observing that the suit must be considered as one brought for recovery of unpaid purchase money. In the said decision at page 787 it is observed as follows:
The money left in the hands of the vendee to pay prior encumbrances is in substance a part of the purchase money due to the vendor. The recovery of the same is not conditional by any proof of special damage. Needless to say that this is distinct from the case of a covenant to relieve the vendor from his existing liability, in which case, only a suit on the covenant would lie for breach. The distinction has been affirmed in Rameswar Dayal v. Hari Kishen : AIR 1940 All 351 (B). The present case is not in our view one for damages for breach of covenant though it has been so put alternatively; but it is one for recovery of the unpaid consideration as a first charge on the property sold.
As pointed Out in Ittaman v. Thieyyol,, 1933 Ker LT 77 :, AIR 1952 Ker 518) (C), there has been cleavage of judicial opinion between the Travancore and Cochin High Courts with regard to the question where a purchaser of immovable property covenants in consideration of the transfer of such property to him to discharge certain liabilities of the vendor the amount reserved for payment to the latter's creditor can be held to be purchase money unpaid so that the vendor may have a charge for the money remaining unpaid to the creditor.
But in the present case also in view of the plea of limitation raised a definite decision on the aforesaid point is not necessary. Ext. A was executed on 14 -10 -1101. Under the Indian Limitation Act, Article 111 allows a period of 3 years for die enforcement of the right of a vendor of immovable property for personal payment of unpaid purchase money. With regard to the right to enforce the charge against the property it is Article 132 dealing with the right to enforce payment of money charged upon immovable property that applies. The period allowed is 12 years from the date when tire money sued for becomes due. Dealing with a similar question regarding a vendor's right in Balakrishna Moop -pan.v. Seethrama Muthaliar., 18 Ker LJ 760 (D), at page 763 it is observed as follows:
Their Lordships of the Privy Council held in Webb v. Macpherson,, ILR 31 Cal 57 (E), that the right created under Section 55(4) of the Transfer of Property Act in favour of the vendor over the property sold for the unpaid purchase money was a statutory charge. Agreeably with the above view actions for the enforcement of such rights were in later cases treated as being covered by Section 132 of the "British Indian Act (corresponding to Section 109 of our Regulation of 1062) which allowed a period of 12 years. The amendment of 1908 in British India therefore expressly made the 3 years' period under Article 111 applicable to the personal remedies alone in such case. This amendment has been adopted by our Legislature in the Regulation of 1100.
The present suit was filed only in 1120 long after the expiry of 12 years from the date of the sale. In Ex. A the recitals are to the effect that the prior encumbrances pointed out there are to be discharged. No period is allowed for the same. So it must be considered that the right to enforce any charge by way of vendor's lien, if any, started from the said day itself for the purpose of computing the period of limitation.
As the indemnity clause creates only a personal liability the date of dandification has no relevancy with regard to the period of limitation for a claim against property as in the present case. In 1953 Ker LT 77 : AIR 1952 Trav -Co 518) (C), referred to already there was a direction in the sale deed that a certain part of the consideration was to be paid to one Man Ittooli on the demise of the mother, Mani, the sale deed being dated 22 -8 -1094. Mani died on 20 -9 -1101.
The amount was not paid as directed and a suit was filed by the assignee of Mani Ittooli's rights in 1103. The decree was passed on 29 -7 -1104 The suit to enforce the charge by way of vendor's lien was brought on 4 -4 -1115. It was held that the suit was barred being brought 12 years after the demise of Mani when the amount had to be paid though the decree based upon Ittoli's right was only on 1104. Thus it is clear that the lower appellate court was wrong in holding that the suit was not barred as regards the relief against property.
Another plea raised at the time of the argent on behalf of the Plaintiffs was that as the prior encumbrance had been discharged by them they had a right to claim the said amount applying the principle of subrogation. No such definite plea was taken in the trial court. Further the present suit was filed 12 years after the decree in O.S. 532 of 1104. So it is clear that no relief on the said basis can be granted.
(3.) IN the result, the lower appellate court's decree is set aside as regards the relief of charge granted and confirmed with regard to the relief against the assets of deceased Juke. The appeal is allowed accordingly. The Appellant is entitled to his costs from the Plaintiffs.;
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