JUDGMENT (1) This second appeal by the plaintiff turns upon the question of limitation. Both the Courts below have agreed and there is no dispute in this court that Art. 116 of the Limitation Act governs the suit. But they have differed as to when time began to run. The lower appellate Court was of the view that the date of the sales in favour of the plaintiff would be the starting point, while the trial Court was of the view that the date of the sales in favour of the plaintiff would be the starting point, while the trial Court held that July 21, 1951, when the plaintiff failed to get a decree declaring his title to the suit property, would be the starting point. I have to decide which of the two vies is the correct one.
(2) One Chennimalai was adjudged an insolvent on February 25, 1933. On August 28, 1934, the Official Receiver sold to one Pathan Chettiar his right, title, and interest in the suit property. Pathan Chettiar got on July 14, 1937 symbolical delivery of the insolvent's share purchased by him. The successors-in-interest of Pathan Chettiar sold the suit property to the plaintiff under two sale deeds both dated 20-1-1949. On the strength of the sales in his favour, the plaintiff instituted O.S. No. 86 of 1949 on the file of the District Munsif's Court, Karur, to recover possession of the property. His suit, however, was dismissed on 21-7-1951, and so too his appeal on 12-3-1954. He brought, therefore, the present suit on 12-3-1957 for recovery of compensation from the respondents for breach of warranty of title in relation to the suit property. Although there were several defences, the one that survives now is the question of limitation. The lower appellate Court as I said, disagreeing with the decree of the trial Court held that the suit was barred by limitation under Art. 116 of the Limitation Act and in that view dismissed the suit.
(3) Sri. K. S. Ramamurthi, the learned counsel for the appellant, contended before me that having regard to the circumstances of this case, the view of the lower appellate Court that the starting point of limitation was January 20, 1949, when the sales were executed by the respondents could not be supported. His contention was that Pathan Chettiar having admittedly taken symbolical delivery and the parties to the sales having contemplated that the vendee should take steps to reduce the property to his possession, the branch of the covenant of title should be taken to have occurred on 21-7-1951, when the plaintiff's attempt to recover possession failed by a suit therefor being dismissed on that date. On the other hand. Sri K.S. Champakesa Aiyangar urged that the breach occurred even on the date when the sales were executed and that the fact that Pathan Chettiar had taken symbolical possession could make no difference to it.
(4) Article 116 of the Limitation Act governs a suit for compensation for the breach of a contract in writing registered. It Cannot be disputed, and in fact it was not disputed as already stated, that this Article governs the present suit. The period prescribed by the Article is six years and it begins to run when the period of limitation would begin to run against a suit brought on a similar contract not registered. Art. 115 covers contract of that category and the third column therein runs:
"When the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases."
The question, therefore, is when the contract of sale can be said to have been broken or the breach occurred. According to the learned counsel for the appellant, this could be said to have happened not earlier than the date of the decision by the Court of the first instance in O. S. No. 86 of 1949 negativing the right of the plaintiff to recover possession. In support of his contention, my attention was drawn to a number of authorities but it seems to me that it is not necessary to refer to them all. In Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887: (AIR 1915 Mad 708), Seshagiri Aiyar J. In relation to the question as to when the cause of action for damages for breach of warranty as to title and possession arises classified the cases under three categories (at p. 889 (of ILR Mad)): (at p. 710 of AIR):
"These cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carried out by giving possession of the properties."
On facts, that was a case where A, who had title to certain immoveable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B, got a decree and obtained possession thereof in execution. The learned Judge held that B's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration. It was pointed out that case fell within the category (b). The Judgment of Seshagiri Aiyar J. Was confirmed by Oldfield and Sadasiva Aiyar, JJ., in Letters Patent Appeal.
The learned counsel for the appellant urged that the classification given above by the learned judge was not exhaustive. According to the learned counsel, the instant case is not covered by any of the said categories and should be classed under a separate head because this was a case in which Pathan Chettiar had admittedly taken symbolical delivery of the fractional share he had purchased from the Official Receiver and the parties to the sale contemplated that physical delivery of the property could not be made then and there at the time of the execution of the sale in favour of the plaintiff and that he should take steps to recover the same. In the context of those circumstances, the contention was that no failure of consideration could be attributed until the Court had decided on the question of title and of the plaintiff's right to recover possession.
It may be seen that class (a) in the judgment of Seshagiri Aiyar J. In a case of a sale void ab initio which, therefore, conveyed no title whatever, the vendee not being put in possession of the property covered by the sale. Now in this case there is nothing to show that the sale was void at its inception. At any rate the parties had in contemplation that the vendors could not put the latter should have to take proper steps to reduce the symbolical possession into khas possession. Unless that event happened and against the vendee it appears to me to be difficult to hold that the sale was bad. I consider, therefore, that the instant case doe not fall within the category (a). Obviously it does not fall under categories (b) and (c) either, because there was in this case no physical delivery of possession of whole or part of the property conveyed under the sales. But the question remains, when was the contract broken giving rise to the starting point of limitation.
(5) Thillaikannu Achi v. Abdul Kadir, 64 Mad LJ 336: (AIR 1933 Mad 126) is a case in which the vendor had delivered a part of the property sold by him and the vendee's suit for recovery of compensation for breach of warranty of title and possession, the contract was said to have been broken when it was found that as a result of the suit against the stranger and not of the sale deed. This case falls under the category(c) in the judgment of Seshagiri Aiyar J. In the course of his judgment Pandalai, J., after referring to the classifications by Seshagiri Aiyar, J., observed.
"However that may be, there is authority for saying that even in cases where the purchaser is unable to get possession and has to litigate against third parties in order to get it, the contract is broken not always, and in all cases necessarily on the date of the sale deed, but at the earliest date when a Court decides that the vendor has no title. It is not uncommon for vendors out of possession to sell their lands and if the parties knowing that immediate possession cannot be given and may have to be obtained by a suit against a third party agreed to these terms, there is no reason to think that the contract is immediately broken if possession is not immediately given. In such a case the contract can reasonably be said to be broken only when it is found as a result of the suit against the stranger known to be in possession that the vendor has no title."
(6) With due respect, I find myself in entire agreement with the above observations of Pandalai, J. Next my attention was invited to Sigmoni Pandithan v. Munibadra Nainar, 49 Mad LJ 668: (AIR 1926 Mad 255). There, all that was laid down was that to a case of this type, the proper article applicable was Art. 116 of the Limitation Act. The question as to when time would begin to run does not appear to have been raised and decided in that case. In Hanuman Kamat v. Hanuman Mandur, ILR 19 Cal 123, the Privy Council was concerned with a suit for recovery of purchase-money on the ground of breach of covenant for title. The vendee in that case had purchased a certain property from a member of a joint family governed by the Mithila School of Hindu law. The property conveyed being a share in a joint property the vendee sued unsuccessfully to recover possession. The Privy Council considered that the consideration for the sale failed at all events when the purchaser being opposed found himself unable to obtain possession. It observed at p. 126.
"But their Lordships are inclined to think that the sale was not necessarily void, but was only voidable if objection were taken to it by the other members of the joint family. If so, the consideration did not fail at once, but only from the time when the appellant endeavored to obtain possession of the property, and being opposed, found himself unable to obtain possession. There was then, at all events, a failure of consideration. And he would have had a right to sue at that time, to recover back his purchase-money upon a failure of consideration."
One other decision which was brought to my notice by the learned counsel for the appellant and which may be considered is Juscurn Boid v. Pirthichand Lal, ILR 46 Cal 670: (AIR 1918 PC 151). There, there was a rent sale of a patnitaluk of a defaulting patnidar to pay arrears of rent under the Bengal Patni Taluk Regulation (VIII of 1819). The sale was subsequently set aside. The vendee on the failure of consideration brought a suit for recovery of the price paid. From the start upto the Judicial Committee, the suit was assumed to the governed by Art. 97 of the Limitation Act. The question that was decided was: What was the date of the failure of consideration. The Privy Council agreeing with the decision of the Courts below that the consideration failed when it was first decided by the Court that the rent sale should be set aside. In dealing with the argument contra, the Privy Council said.
"To escape from the position and its consequences a new starting point was suggested in the course of the argument here; it was contended that the period of limitation began to run when possession was lost. There may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which the limitation period should run, but that is not the case here. The quality of the possession acquired by the present purchaser excludes the idea that the starting point is to sought in a disturbance of possession or in any even other than the challenge to the sale and the negation of the purchaser's title to the entirety of what he bought involved in the decree of the 24th August 1905". On that reasoning the argument that the starting point should be the date of disturbance of possession was not accepted in the circumstances of that case.
(7) Sri K. S. Champakesa Aiyangar was not able to bring to my notice any direct decision in which the vendee had taken symbolical delivery of possession and in which the vendor and the vendee contemplated that steps should be taken in order to reduce the symbolical possession into physical possession and in which the starting point for a suit of this nature was held to be the point for a suit of this nature was held to be the date of sale rather than the date of the first decision of the Court negativing the title of the vendor. But his argument was that whatever might be the effect of symbolical possession on questions like adverse possession in respect of property and owned jointly or in common, inasmuch as there could be no such thing as disturbance of symbolical possession, such possession could not be the basis to found a breach of warranty of title or possession for the purpose of the third column of Art. 116 of the Limitation Act.
I cannot wholly accept this argument. It is no doubt true that where a vendee has only taken symbolical possession there can be no question of disturbance of physical possession which can be taken as the basis for the starting point of limitation in a suit governed by Art. 116. But can it be said that there is a breach of covenant of title or possession under a sale deed from the date of its execution, when the parties thereto sold was only a fractional share, could not deliver physical possession thereof and that the vendee should, therefore, take proper steps in order to recover physical possession of what was conveyed to him? It seems to me that where it is not obvious that the sale deed is for some reason ex facie void ab initio, it has to be taken that the breach has occurred only when the vendee finds himself unable to recover possession on the strength of the sale deed. If there is nothing more than that a sale deed was executed and no possession of the property conveyed was delivered, it would be a case governed by category (a) in the judgment of Seshagiri Aiyar J. As I said, when the parties to the sale made no mistake but knew full well and in fact contemplated that the vendee could take possession only on steps being taken therefor, the breach can be said to have occurred in my opinion, only when the steps failed.
(8) In the above view, I have no hesitation in holding that the starting point of limitation in this case was 21st July 1951, when it was first decided by the Court that the plaintiff could not recover possession on the strength of the sale deeds in his favour. On that basis, the suit was in time.
(9) The second appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court restored. The Plaintiff will have his costs throughout. Leave granted.
(10) Appeal allowed.