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Hukumchand Boid v. Pirthichand Lal Chowdhury
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
On 14 May 1904 a patni Taluk known as Lot Mirzapur was put up for sale for arrears of rent under the Bengal Patni Taluks Regulation 1819 at the instance of the Zemindar Mussmnat Bhagwanbati Chowdurain. The defendant-respondent in the appeal, Pirthichand Lal Choudhury, is described as her successor-in-title and the present Zemindar. The defaulting patnidar was Chhatraput Singh. Hukumchand Boid (now represented on the appeal by his heirs, the plaintiffs-appellants) was the highest bidder and the tenure was knocked down to him.
The purchaser paid the entire purchase money and on 23 May 1904 received from the officer conducting the sale a certificate of payment under Section 15 of the Regulation. On 28 May 1904 he received the usual order for possession (amaldustak). Thereafter, a darpatnidar desiring to contest the Zemindar's right to make the sale sued for its reversal (the opinion records this as occurring on the "80th of June" following). Three similar suits were instituted in July and August.
Decrees reversing the sale were passed in each suit. In the first suit, No. 248 of 1904, a decree reversing the sale was passed in the Court of First Instance on 24 August 1905; an appeal to the High Court was dismissed (the opinion records a date which appears inconsistent but the plaint and subsequent references treat the appellate decree as dated 3 August 1906). Decrees in the other suits (Nos. 262, 273 and 277 of 1904) were passed on 28 August 1906.
By the present suit the purchaser sought to recover Rs. 57,996-3-6, described as the aggregate of (a) rent arrears due and paid by the Collector to the Zemindar out of the purchase money, (b) expenses of the sale appropriated by the Collector out of the purchase money, (c) patni rents paid to the Zemindar subsequent to the sale, and (d) interest on these sums and on the balance of purchase money left in the hands of the Collector.
In the Court of First Instance the suit was dismissed as barred by limitation; that decree was affirmed by the High Court on appeal. The present appeal challenges those decisions.
Legal Issues Presented
- Whether the purchaser's suit to recover the sums claimed is barred by limitation, and if so, the date from which the period of limitation under Article 97 of the Second Schedule to the Limitation Act begins to run (whether from the original decree of 24 August 1905 or from a later appellate decree).
- Whether the period of limitation should instead begin to run from the time when the purchaser lost possession (the alternative starting-point suggested in argument).
- Whether the claim in respect of patni rents paid to the Zemindar after the sale is governed by a different Article of the Limitation Act (specifically Article 62) and whether that claim is barred.
- How Section 14 of the Bengal Patni Taluks Regulation affects the purchaser's right to indemnity and whether a distinct issue must be framed and decided between purchaser and the person chargeable under that section; and relatedly whether the remedy under Section 14 excludes other remedies.
Arguments of the Parties
Plaintiffs-Appellants (the purchaser / heirs of Hukumchand Boid)
- The plaint alleged that the cause of action arose on 3 August 1906 (the date of the appellate decree in suit No. 248 of 1904) and subsequently on 28 August (the date of decrees in the three other suits), i.e., the purchaser treated the reversal on appeal as the operative date for limitation.
- By implication, the purchaser sought recovery of purchase-money-related sums, sale expenses, patni rents paid after the sale, and interest.
Defendant-Respondent (the Zemindar)
- The respondent contended that the period of limitation began to run from the date of the original decree in suit No. 248 of 1904 (24 August 1905), not the later appellate decree.
- It was also contended in argument for the respondent that the period of limitation might begin to run when possession was lost (an alternative starting point advanced during the appeal), and that claims for patni rents might be governed by Article 62 of the Limitation Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hanuman Kamut v. Hanuman Mandar (1891) L. R. 18 I. A. 158 | Authority cited in argument regarding the date from which limitation should run (resistance to obtaining possession treated as crucial date in that case). | Their Lordships examined the facts of that case and concluded that it bore no real resemblance to the present case and did not support postponing the time for limitation beyond the date of the first decree in suit No. 248 of 1904. |
| Nursing Shivbakas' case (1913) I. L. R. 37 Bom. 538; 15 Bom. L. R. 559 | Cited in argument (presumably on points about timing or possession). | The opinion records that this authority, though cited, "does not call for serious consideration" in the present case. |
| Radha Madhub Samonta v. Sasti Ram Sen (1899) I. L. R. Cal. 826, 829 | Referenced for language that seems to favour the view that the effect of Section 14 is not to exclude all other remedies. | Their Lordships note that the language of the Chief Justice in that case seems to favour that view, but that the provision of Section 14 had no application to the actual facts of that case; Banerjee J.'s judgment was more guarded. |
| Gorton v. Macintosh (1883) 51 W. R. 252 | Referenced in argument on the effect of the statutory provision analogous to Section 14. | Their Lordships state that remarks in Gorton v. Macintosh "cannot be regarded as in any sense conclusive" for the present question. |
Court's Reasoning and Analysis
The court proceeded on an assumed basis — adopted for the purposes of the present appeal and without affirming its correctness — that the purchaser's suit fell within Article 97 of the Second Schedule to the Limitation Act (a suit "for money paid upon an existing consideration which afterwards fails"). Article 97 prescribes a three-year period of limitation running from the date of the failure of the consideration.
The suit before the court was instituted on 14 September 1908. The plaint alleged that the cause of action arose on 3 August 1906 (the date of the appellate decree in suit No. 248 of 1904) and on 28 August (dates of decrees in the three other suits). The court observed, however, that by the decision in the first suit, No. 248 of 1904, the sale had been reversed in its entirety and for all purposes, irrespective of the later decrees. Thus the relevant question was whether the date from which limitation ran was the appellate decree or the original decree in the Court of First Instance (24 August 1905).
Relying on the principle under Indian law and procedure that an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal, Their Lordships concluded that the failure of consideration occurred at the date of the first Court's decree (24 August 1905). On that footing the three-year limitation under Article 97 had expired before the suit was instituted on 14 September 1908, and the claim was therefore time-barred.
The court considered and rejected the alternate argument that the period of limitation began when possession was lost. It observed that although in some circumstances loss of possession might be the appropriate starting point, that was not the case here: the nature of the possession acquired by the purchaser and the fact that the purchaser's title to the entirety of what he had bought was negated by the decree of 24 August 1905 pointed to that decree as the proper starting point. The court also relied on Section 14 of the Regulation, which directs that in the suit for reversal the purchaser is to be indemnified against all loss, as further support for treating the decree as decisive rather than an event of disturbed possession.
The court also addressed the separate point relating to the patni rents paid to the Zemindar after the sale (paid on 17 November 1904 and 17 May 1905). It observed that if these rents were governed by a different Article of the Limitation Act (specifically Article 62) that Article would likewise bar the claim; and the High Court had correctly held that no suit for that amount would lie.
Finally, the court examined the operation of Section 14 of the Regulation. Section 14 requires that when a decree for reversal of a sale is passed the Court "shall be careful to indemnify [the purchaser] against all loss at the charge of the Zemindar or person at whose suit the sale may have been made." The court interpreted this provision as imperative and requiring the framing of a distinct issue between purchaser and the person chargeable under the section to determine whether and what loss should be indemnified. The opinion found that in the series of suits the courts had not applied Section 14 in a manner that would be conclusive as to the purchaser's right to indemnity: although there was a finding in suit No. 248 of a benami character that would be conclusive against indemnity, no decision as to the right to indemnity was recorded in the decree (and, regrettably, it forms no part of the record). In the other decrees the claim appears to have been negatived but without a recorded finding that would justify that decision.
The court declined to decide more broadly whether the remedy under Section 14 excludes all other remedies, noting that the question is one of some nicety and, in the absence of decisive authorities and fuller information, should be the subject of careful consideration if it arises in future. The court emphasised that proper observance by trial courts of the duty cast by Section 14 would avoid recurring difficulty.
Holding and Implications
Holding: Their Lordships' conclusion was that the appeal should be dismissed with costs. The opinion states that they will "humbly advise His Majesty accordingly."
Direct effect on the parties: The purchaser's suit was held to be barred by limitation (the court treated the date of the original decree, 24 August 1905, as the date of failure of consideration under Article 97, and the suit instituted on 14 September 1908 was therefore time-barred). The court also accepted the High Court's conclusion that no suit would lie in respect of the patni rents paid on the dates given.
Implications and precedential effect: The court expressly declined to determine definitively whether Section 14's remedy is exclusive of other remedies and noted that its decision in the present appeal rested on the particular procedural course of the litigation. The opinion states that this dismissal "must not be regarded as indicating an opinion that the suit is competent," and thus the court did not lay down a broad new precedent on the exclusivity of the Section 14 remedy. The court emphasised that trial courts should observe the duty imposed by Section 14 to frame and decide a distinct issue as to indemnity so as to produce conclusive determinations on that point.
1. On the 14th May, 1904, a patni Taluk known as Lot Mirzapur was put up for sale for arrears of rent under the Bengal Patni Taluks Regulation 1819 at the instance of the Zemindar, Mussmnat Bhagwanbati Chowdurain. The defendant-respondent, Pirthichand Lal Choudhury, as her successor-in-title, is the present Zemindar. The defaulting patnidar was Chhatraput Singh. Hukumchand Boid, now represented on this appeal by his heirs the plaintiffs-appellants, was the highest bidder, and the tenure was knocked down to him.
. The purchaser paid in the entire amount of the purchase money, and on the 23rd of May, 1904, ho received from the officer conducting the sale a certificate of payment under Section 15 of the Regulation.
3. On the 28th May, 1904, the purchaser received the usual amaldustak or order for possession but on the 80th of June following, a darpatnidar, being desirous of contesting the right of the Zemindar to make the sale, sued her for its reversal. Three similar suits for the same purpose were instituted by other darpatnidars in July and August. A decree for reversal of the sale was passed in each of these suits. That in the first, suit No. 248 of 1914, was passed in the Court of First Instance on the 24th of August, 1905. An appeal to the High Court was dismissed on the 3rd of August, 1900. The decrees in the other suits, Nos. 262, 273 and 277 of 1904., were passed on the 28th of August, 1906.
4. By the present suit the purchaser seeks to recover from the Zemindar the sum. of Rs. 57,996-3-6, the aggregate of several sums of money being (a) the amount of rent arrears due and paid by the Collector to the Zemindar out of the purchase money, (b) the expenses of the sale appropriated by the Collector out of the purchase money, (c) the patni rents paid to the Zemindar subsequent to the sale, and (d) interest on these several sums and on the balance of purchase money loft in the hands of the Collector,
5. In the Court of First Instance this suit was dismissed as barred by limitation, and this decree was affirmed by the High Court on appeal. From this decision the present appeal has been preferred.
6. The principal point discussed has boon the plea of limitation, and in the argument as well as throughout the earlier stages of the suit it has been assumed that this question is governed by Article 97 in the second schedule to the Limitation Act. That Article prescribes the period of limitation for a suit there described as one "for money paid upon an existing consideration which afterwards fails."
7. If regard be had to the peculiar character of a sale under the Regulation it is manifest that the facts but imperfectly fit the phrase; they perhaps more nearly approach the formula of "money had and received by the defendant for the plaintiff's use," if read as a description and apart from the technical qualifications imported in English law and procedure.
8. Hat however that may be, their Lordships feel that in view of the course the suit has consistently taken and also of the attitude on both sides here that they ought to deal with the case on the assumption made for the purpose of this present appeal alone, but without affirming its correctness, that the present suit is competent and that it comes within the terms of Article 97.
9. It is from this assumed basis that they will approach the case. The period of limitation prescribed by Article 97 is three years, and the time from which the period begins to run is the date of the failure of consideration.
10. The suit was instituted on the 14th September, 1908, and it is alloyed in the plaint that the cause of action arose
"on 3rd August, 11)06, the date of the appellate decree in connection with suit No. 248 of 1904, and subsequently on 28th August, the date of decree in the three suits Nos. 262, 278, and 277 of 1904."These are the decrees already mentioned, and the case here made is that it was the reversal of the sale that was the cause of action,
11. But by the decision in the first suit, No. 248 of 1904, the sale was reversed in its entirety and for all purposes irrespective of the decrees in the three later suits, so that if the reversal of the sale is the cause of action the only question is whether time began to run as the plaint alleges from the 3rd of August, 1906, the date of the appellate decree, or, as the defendant-respondent contends, from the 24th of August, 1905, the date of the original decree in suit No. 248 of 1904. Both Courts have held that the failure of consideration was at the date of the first Court's decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.
12. To escape from this position and its consequence 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.
13. 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 be sought in a disturbance of possession or in any event 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. If further support of this view be required it may be found in the express provision of Section 14 of the Regulation which directs that in the suit for reversal itself the purchaser is to be indemnified against all loss.
14. Moreover, the argument suffers from the infirmity that necessarily attaches to a belated plea advanced for the first time when the stage for investigating the necessary facts had passed. It is enough then to say that the facts disclosed afford no ground for preferring any other event that the decree of the 24th August, 1905, as marking the time from which the period of limitation ought to run.
15. Their Lordships in arriving at this conclusion have not overlooked the authorities cited in argument.
16. When the facts in Hanuman Kamut v. Hanuman Mandar (1891) L. R, 18 I. A. 158 are examined they lend no support to this contention. ' It is true that there the resistance to obtaining possession was regarded as the crucial date, but that was in circumstances bearing no real resemblance to the present, and nothing was decided which would sanction the view that the time for limitation could be postponed to a period later than the first decree in suit 248 of 1904.
17. The decision in Nursing Shivbakas' case (1913) I. L. R. 37 Bom. 538; 15 Bom. L. R. 559 though cited in argument does not call for serious consideration.
18. But then it has been contended that at any rate the claim, be far as it relates to the patni rents paid to the Zemindar subsequent to the sale, is not barred by limitation.
19. These rents were paid on the 17th November, 1904, and the 17th May, 1905, and if, as is suggested, they are governed by a different Article it can only be the 62nd, which would be an equal bar to the suit.
20. Further than this, their Lordships think it was rightly decided by the High Court that no suit for this amount would lie.
21. These conclusions are sufficient for the determination of this appeal, but there is another branch of the case that calls for notice, not so much for the purpose of this appeal as for its general bearing on litigation under Section 14 of the Regulation.
22. That section authorizes a suit against the Zemindar for the reversal of a sale under the Regulation, and then provides that
"the purchaser shall be made a party in such suits and upon decree passing for reversal of the sale the Court shall be careful to indemnify him against all loss at the charge of the Zemindar or person at whose suit the sale may have been made."
23. There is no ambiguity in this provision: it is imperative and imposes on the Court without qualification the duty it indicates.
24. To discharge this duty a distinct issue should be framed as between the purchaser and the person chargeable under the section whether, in case the sale is reversed, the purchaser has suffered any and what loss against which he ought to be indemnified by that person. On that issue there ought to be a finding and a decision, and then any contest on this head would be finally closed subject to such right of appeal as there might" be.
25. Though, in the judgment pronounced in suit No. 248 of 1901, there is a finding as to Hukumchand's benami character which would be conclusive against any right to, indemnity, no decision as to this right is recorded, nor has it been possible to ascertain whether any such decision is embodied in the decree, for by an unexplained and regrettable omission it forms no part of the record. In the three other decrees the claim is apparently negatived, but there is no finding recorded in the judgment that could justify this decision.
26. And so the Courts in that series of suits failed to apply the provision of section 14 in a manner that would be conclusive as to the purchaser's right to be indemnified. How far the remedy provided by Section 14 in a purchaser's favour excludes all other remedies, apart from any determination of an issue, is a question of some nicety. There is much to be said in favour of its exclusive character on the score of policy and convenience. No actual decision, however, one way or the other, has been brought to their Lordships' notice, for though the language of the Chief Justice in Radha Madhub Samonta v. Sasti Ram Sen (1899) I. L. R. Cal. 826,829 seems to favour the view that the effect of the section is not to exclude all other remedies, to the actual facts of that case the provision of the section could have had no application. This is brought out in the more guarded judgment of Banerjee J. Obviously, too, the remarks in Gorton v. Macintosh (1883) 51 W. R. 252 cannot be regarded as in any sense conclusive. It was conceded in argument that this suit appeared to be one of first impression, but in the absence of more complete information as to the cursus curix in India their Lordships will not say more than that the question will demand careful consideration should it hereafter arise. But they again desire to emphasize the point that if the Courts observe the duty cast on them by Section 14 this difficulty never can arise. And they would only add this, that their decision of this appeal on other grounds is due to the particular course this litigation had taken, and must not be regarded as indicating an opinion that the suit is competent.
27. The result, then, is that in their Lordships' opinion this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.
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