AMBADAS Vs. WAMANRAO

JUDGEMENT

(1.) 1. On 8th April 1920 the defendant Wamanrao executed a registered sale-deed of survey No. 2/1 in mauza Chikni in the Darwha taluk in favour of the plaintiff Ambadas. The plaintiff's case is that he was placed in possession and granted a five years' oral lease to Vithu who remained in possession until he was ejected by Wamanrao on 11th April 1921. Wamanrao alleges that he never parted with possession as the consideration was not paid in full. Whatever may be the truth of these allegations, into which there has been no inquiry. Ambadas brought Civil Suit No. 78 of 1923, in the Court of the Subordinate Judge of the First Class, Darwha, against Wamanrao and his lunatic brother Rangrao for a declaration of his title to the field and for possession with effect from January 1926 when the lease which he had granted to Vithu was due to expire. That Court held that the field was the joint family property of Wamanrao and Rangrao, that Wamanrao was the manager, and that the sale was without legal necessity and therefore not binding on Rangrao's share.

(2.) THE consideration for the sale, as set out in the sale-deed, was Rs. 4,000, but the Court held that only Rs. 2,765-14-0 had been paid. It decreed that the plaintiff on payment of the balance of Rs. 1,204-2-0 would be entitled to possession of a half share in the field with effect from January 1926. On appeal the learned Additional District Judge held that as Ambadas had already paid more than half the consideration for the whole field, he was entitled to possession of a half share without further payment. That decision was upheld by this Court in second appeal.

(3.) UNDER Article 116 limitation begins to run from the date when limitation would have begun to run against a suit brought on a similar contract not' registered. If the contract had not been registered, the article applicable would have been Article 97, and limitation under this article begins to run from the date of the failure of the consideration. The decisions of this Court in Pirbu v. Mt. Wazirbi (1915) 11 NLR 186 and Kashirao v. Zalu AIR 1932 Nag 5 are not precisely in point as the sales in those cases were void ab initio, whereas the sale in the case now before me was merely voidable at the instance of Rangrao and was valid until avoided by him: see Bhawani Singh v. Girdhari A.I.R. 1932 Nag. 3. The judgments however in Kashirao v. Zabu AIR 1932 Nag 5 contain a valuable exposition of the principles applicable to this case, and I think the learned District Judge would probably have come to a different conclusion if that case had been published then. As pointed out by Niyogi, A.J.C., at p. 41, by virtue of Section 55(2), T.P. Act, 1882 every sale necessarily imports a covenant for title and quiet enjoyment. The covenant of quiet enjoyment was obviously broken when Vithu was ejected on 11th April 1921, assuming the facts stated by the plaint to be correct; but because this covenant was broken, the plaintiff was not obliged to treat the contract as rescinded. It was open to him to stand on his rights under the contract and to sue for a declaration of title and for possession as he did. The covenant for right to convey was broken when the contract was avoided at the instance of Rangrao. I do not think that the filing of a written statement by Rangrao claiming that he was entitled to a half share in the property was sufficient to start limitation running.