HIGH COURT OF MADHYA PRADESH
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Dixit, J. -
(1.) THIS is a Second appeal by the defendant for the refund of consideration money in respect of the sale of certain Zamindari property. The plaintiff -respondents purchased from the defendant -appellant a Zamindari property situated in 'Mauza' Gadwara for Rs. 2,600. After the sale one Phulazarilal lodged an objection to the sale in the Revenue Court claiming that he was entitled to pre -empt the property sold to the plaintiffs. This objection was allowed and the sale in the plaintiffs' favour was set aside by the Revenue Court on 28 -8 -1934. Kunwarpal did not, however, subsequently sell the property to Phulazarilal.
Even after the setting aside of the sale, the plaintiffs continued in possession of the property and on 20 -1 -1944 they were dispossessed by Kunwarpal. Thereupon the plaintiffs instituted a suit on 5 -8 -1944 for the refund of the consideration money of Rs. 2,600, together with interest thereon, the total being Rs. 2,756. One of the grounds on which the defendant resisted the suit was that the plaintiffs' suit not having been filed within six years from 28 -8 -1934, that is to say the date on which ' the Revenue Court cancelled the sale, was barred by time. The plea as to limitation was rejected by the trial Court and a decree for Rs. 2,756 was passed in favour of the plaintiffs and against the defendant. The decision of the trial Court was affirmed in appeal by the learned District Judge of Bhind. The defendant has now filed this appeal against the decision of the District Judge, Bhind.
(2.) IN this appeal the only point urged by Mr. Mungre learned counsel for the appellant was that the plaintiffs' suit was barred by time. It was said that under Art, 13, Gwalior Limitation Act the suit should have been filed within six years from the date on which the right to sue accrued; that the right to sue for the return of the consideration money arose when the sale was set aside on 28 -8 -1934 and not on 20 -1 -1944, the date on which the plaintiffs were dispossessed from the property. The contention is devoid of any substance. The plaintiffs' suit is no doubt governed by the residuary article of the Gwalior Limitation Act which does not contain a provision corresponding to Art. 97, Limitation Act. This article prescribed a period of six years limitation from the date on which the right to sue accrues.
Now in this case in consideration of the money paid by the plaintiffs Kunwarpal transferred the Zamindari property to them and also gave possession thereof. The transfer was voidable at the option of the pre -emptor. The right to sue for the recovery of consideration money would arise only on the failure of consideration and there would be no failure of consideration so long as the plaintiffs remained in possession of the property sold to them. The mere fact that the sale in favour of the plaintiffs was set aside on 28 -8 -1934 to enable the pre -emptor to purchase the property will not amount to failure' of consideration.
The point seems to me to be concluded by the Privy Council decision in - - 'Hanuman Kamat v. Hanuman Mandar',, 19 Cal 123 (A). That was a case where a sale by the manager of a joint Hindu family of a portion of the joint family property was set aside on an objection being made by other members of the family to the transfer when the purchaser attempted to take possession. The purchaser then brought a suit for the refund of the purchase money. The Privy Council held that Art. 97, Limitation Act applied to the case and that the sale was not necessarily void but was only voidable and that the consideration did not fail at once but only from the time when the purchaser endeavoured to obtain possession of the property and being opposed found himself unable to obtain possession.
The reasoning of the Privy Council decision would apply to a case where the sale is not void 'ab initio' but voidable only and the purchaser obtains possession but is subsequently dispossessed. In such a case the failure of consideration would occur from the date of dispossession. I need not cite other authorities to support this view. These have been noted in Note 9 of Art. 97 in Vol. 2 Chitaley's Limitation Act. Mr. Mungre, learned counsel for the appellant referred me to the decision of the Privy Council in - - 'Bassu Kuar v. Dhun Singh', 11 All 47 (B), to support his contention that the consideration failed when the sale was set aside on 28 -8 -1934.
In that case on a suit for specific performance of an agreement to sell certain properties being dismissed the intending purchaser sued for the refund of the purchase money. It was held by the Privy Council that the consideration failed when the suit for specific performance was dismissed. That case is distinguishable by the fact that it related to the refund of executory consideration and not for the return of the purchase money in a case such as the one we have here. The point of time when the consideration can be said to have been failed has to be decided with reference to the class and nature of contract.
In a suit for specific performance of a contract for the sale of a property, the consideration will fail only when the contract comes to an end either by reason of impossibility of performance or by reason of refusal to perform or because the contract is abandoned or because the contract ceases to be enforceable by a decision of a Court. The rule about the failure of consideration in cases of specific performance cannot clearly be applied to cases where the vendee is put in possession of the property under a contract of sale and is then subsequently dispossessed. In such a case limitation will commence only from the date of dispossession. Here the plaintiffs were dispossessed on 20 -1 -1944 and they brought their suit within six years of this date. It is therefore, within time. No other point was urged by the learned counsel for the appellant.
In the result this appeal is dismissed with costs.;
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