Allsop, J - (1.)This second appeal arises out of a suit for possession against a number of defendants and in the alternative for damages or return of consideration from defendant 1. The property in suit was sold to the plaintiff by defendant 1, Amba Prasad, in the year 1932. Defendants 2 and 3, Balkishen and his uncle, Bhagwat Kishen, claim to be the owners of the property and the Courts below have found as a fact that they are. The other three defendants were transferees from Balkishen and Bhagwat Kishen. In the year 1933 the plaintiff instituted a suit to recover possession against Amba Prasad, Sunder Lal, who is not a party, and defendant 4, Chuttan Lal and obtained a decree, but it has been found as a fact that he never obtained possession. The learned Judge of the trial Court on his finding that Balkishen and Bhagwat Kishen were the owners of the property dismissed the suit against defendants 2 to 6 but gave a decree for the return of consideration against Amba Prasad, defendant 1. Amba Prasad appealed to the learned Judge of the lower appellate Court who dismissed the suit against him also upon the ground that the claim against him was barred by limitation. The plaintiff has now appealed to us.
(2.)Learned Counsel has referred to us a number of decisions upon the two questions at issue namely what article of the Limitation Act applies and when the cause of action arose. The first question is whether we should apply the provisions of Articles 62, 97 or Art. 116, Limitation Act. I may say at once that I have no doubt that Art. 116 would apply if Art. 97 applied because it has been held that the provisions of Art. 116 apply to all registered contracts Hanwant Rai v. Chandi Prasad and Tricomdas Cooverji Bhoja V/s. Gopinath Jiu Thakur ( 16) 3 A.I.R. 1916 P.C. 182. It remains to be considered whether Art. 62 should apply. In Mulkunwar V/s. Chattar Singh ( 08) 30 All. 402 it was held that Art. 116 applied to a case of this kind, but that was a case where the suit was instituted within six years of the date of the sale of the property and the learned Judges did not consider when time began to run. In Janak Singh V/s. Walidad Khan ( 15) 2 A.I.R. 1915 All. 339 and Ardesir V/s. Vajesingh ( 01) 25 Bom. 593 it was held that a covenant for quiet enjoyment did not come into operation until the transferee was put in possession of the property. There was no reference in these judgments to the provisions of Section 55, T.P. Act, which introduces into all sales a covenant for warranty of title. In Janki Nath V/s. Bejoy Chand ( 21) 8 A.I.R. 1921 Cal. 596 there was a reference to the case in Juscurn Boid V/s. Perthi Chand Lal ( 18) 5 A.I.R. 1918 P.C. 151. The learned Judges of the Calcutta High Court said that their Lordships of the Privy Council had ruled that the provisions of Art. 62 applied to all cases which in England would be treated as actions for the recovery of money had and received. What their Lordships said was that these provisions did apply but without the technical implications of the English law of procedure. The case in Hanuman Kamat V/s. Hanuman Mandur ( 92) 19 Cal. 123 referred back to a period before the Transfer of Property Act was passed and in that case there was apparently no express covenant for warranty of title or apparently no express covenant for warranty of title or quiet possession. In Kundan Lal V/s. Bisheshar Dayal the learned Judges followed the decision in Hanuman Kamat V/s. Hanuman Mandur ( 92) 19 Cal. 123. It was not brought to their notice that that ruling applied to a date before Section 55, T.P. Act, was in force. In Hanwant Rai v. Chandi Prasad the learned Judges followed the case in Mulkunwar V/s. Chattar Singh ( 8) 30 All. 402 where it was held on a covenant to give possession that time began to run from the dismissal of a suit against a third party to recover possession and Art. 116 applied. In Muhammad Siddiq V/s. Muhammad Nuh where there was a sale by a Hindu lady whose transferee made further transfers and the reversioners instituted a suit for the recovery of the property it was held that a specific covenant for title was not binding on a pardanashin woman but that the provisions of Section 55, T.P. Act, imported a statutory covenant for warranty of title, that a sale by the Hindu woman was voidable and not void, and that the cause of action on the covenant arose when the sale was finally avoided.
(3.)In the case before us, it is clear from the findings of fact that Amba Prasad purported to transfer property of which he was not the owner, but on the other hand, he always maintained that he was the owner of the property and supported the plaintiff in the litigation which arose in the year 1933 and again during the proceedings in the suit which has given rise to this appeal. When he executed the sale-deed in 1932, he entered into an express covenant that he would refund the price of the property if the vendee failed to get possession or if some other person successfully claimed the property as his own. In my judgment the rulings which have been quoted to us are for the most part irrelevant. The claim here is for the payment of money under an express covenant by the vendor. I do not think that we should be too willing to import into transactions entered into in this country the technical rules of conveyancing which have been adopted in England and which are accepted by the Courts there. In English conveyances there are included certain well-known covenants which are understood to have certain meanings. In India, or at least in this province there, is no definite system of conveyancing. Deeds of transfers are drawn up by petition writers with no great knowledge of law and I think that each conveyance should be examined on its merits to see what the intention of the parties was. I do not think it is in accordance with the facts to presume that there are covenants for quiet possession or covenants for warranty of title with the special implications of similar covenants in England. If a vendor says to the vendee: I warrant my title of the date of the execution of this deed and if I have no title at this date I will compensate you. Then the question, of course, is whether he had a title on that date and if he had no title, then time for the institution of a suit on the basis of the covenant would run from the date of the deed. Similarly if he said: I will guarantee you against dispossession once I have put you into possession of the property. Then the cause of action would arise after the vendee had been put into possession and had been ejected by some other person. In this case it would usually, I suppose, be a guarantee by the vendor against persons claiming through him or having some connection with him. My experience is that the practice normally is to guarantee the vendee against dispossession by the vendor or by his co-sharers or coparceners (Sharik or Bahim) that is, against a danger which in this country he would naturally apprehend, but I think each document should be construed according to its terms. If, as in this case, the vendor says: I will compensate you if you fail to get possession of the property and I am unable to put you in possession then it seems to me that the cause of action arises when the vendor is clearly unable to put the vendee into possession or gives up all attempts to do so. In view of the fact that Amba Prasad was throughout supporting the vendee and apparently doing his best to enable him to get possession of the property I do not think the cause of action arose till it became apparent that the plain, tiff could not possibly get possession of the property in spite of any efforts which Amba Prasad might make. It might possibly be argued on this reasoning that the claim against Amba Prasad was premature at the date of the institution of the suit, but I think the plaintiff at that date was entitled to say to Amba Prasad: It appears to me that you are really unable to put me in possession of the property and therefore I am claiming damages from you although I am making one more effort to get possession from the other defendants and it would be evident from the result of the suit that he was right in his presumption that Amba Prasad had finally failed to put him into possession. On this reasoning I think that it could not be said that the suit against Amba Prasad for return of the consideration is barred by limitation. As so many decisions have been quoted, I may make some general observations. It seems that the provisions of Art. 62 might have been applied before the enactment of Section 55, T.P. Act, to cases where there was no covenant and the suit was merely on the allegation that the vendor had purported to transfer some property to which he had no title. That would have been on the analogy of the English law an action for money had and received. Now that Section 55 has imported into all transfers, unless the parties agree to the contrary, a covenant warranting the title of the vendor, it would seem that a suit to recover the consideration would be on the basis of that specific covenant and time would begin to run from the date of the deed after it had been established that there never had been any title. In the case, however, where there is an express covenant it seems to me that that covenant must be construed according to the intention of the parties and no general rule can be laid down about the date when the cause of action arises. Such suits, however, would be on the basis of a covenant and the provisions of Art. 97 would apply if there was no registered deed and the provisions of Art. 116 if there was a registered deed. I would, therefore, hold that the appeal should succeed and I would set aside the decree of learned Judge of the lower appellate Court and restore the decree of the trial Court, with costs throughout. Malik, J.