Patkar, J.:—

This was a suit brought by the plaintiffs to recover the amount of Rs. 9,296-12-0 as damages for breach of a covenant contained in a sale-deed, Exhibit 20, passed by the father of the defendant in favour of the father of the plaintiffs.

The circumstances giving rise to the present case are as follows:— One Ganeshlal obtained a money decree in Suit No. 155 of 1904 against one Shankarlal Shivlal, and in execution of that decree house No. 90 belonging to the judgment-debtor Shankarlal was sold on December 14, 1905, and purchased in the name of the defendant's father Hanuman Ramdayal, the purchase-money having been contributed in equal shares by Gangabisan Jiwanram, the father of the plaintiffs, and Hanuman, the father of the defendant. On August 18, 1913, an agreement, Exhibit 19, was entered into between the plaintiffs' father and the defendant's father by which they agreed that the properties should be auctioned and whoever offered the highest bid should be the purchaser. In pursuance of this agreement the property was sold to the plaintiffs' father for Rs. 16,350 on March 1, 1914, and on that day half the amount, namely Rs. 8,175 was paid to the defendant's father who conveyed his half share by the document, Exhibit 20. On July 20, 1915, Vallabhdas, the son of the original judgment-debtor, Shankarlal, brought Suit No. 212 of 1915 for a declaration that his half share in the property did not pass under the execution sale against his father and obtained a declaration and a decree for possession on April 7, 1916. Against that decree First Appeal No. 148 of 1916 was filed by both the plaintiffs' father and the defendant's father, and this Court directed on March 1, 1918, that a general suit for partition should be brought, and the execution of the decree in Suit No. 212 of 1915 was stayed for three months to enable the appellants to bring a suit. The decision of the High Court is reported in Hanmandas Ramdayal v. Valabhdas. In pursuance of the direction given by the High Court Gangabisan and Hanuman brought Suit No. 188 of 1918 for a general partition, and on July 29, 1921, they were held to be entitled to a moiety of the house No. 90 in dispute. Against that decision both of them appealed to the High Court and the decree of the lower Court was confirmed on February 18, 1924. Vallabhdas filed a darkhast to obtain execution of the decree and by agreement Vallabhdas was given half share in the house in December 1924. On March 10, 1926, the present suit was brought by the plaintiffs to recover Rs. 7,500 being the price of ¼th share of the house which the plaintiffs alleged they lost, placing the valuation of the house at Rs. 30,000 with interest and costs. The principal ground of defence in the lower Court was that the claim was barred by limitation, and it was urged that the Article applicable to the Article 62 of the Indian Limitation Act. The plaintiffs relied on Article 97 of the Indian Limitation Act.

The learned Judge, however, held that the suit was governed by Article 83 read with Article 116 of the Indian Limitation Act, and that the cause of action arose when the plaintiffs were dispossessed in December 1924 and the claim was within time. On the question of damages the Court held that the value of the property when the plaintiffs were dispossessed was Rs. 20,000 and awarded the plaintiffs Rs. 5,000 with interest.

On appeal, it is urged on behalf of the appellant that the suit is barred by Article 62 of the Indian Limitation Act, and even if Article 97 applied, the cause of action accrued to the plaintiffs on April 7, 1916, when the Court in Suit No. 212 of 1915 held that the Court purchasers acquired only the right, title and interest of Shankarlal and not the interest of his son Vallabhdas. Secondly, it is urged that Article 96 of the Indian Limitation Act would apply, and the mistake was discovered by the plaintiffs when the suit was decided on April 7, 1916. On the merits it is urged that the plaintiffs have not shown that they have suffered any damage, and that as the plaintiffs got a little more than a half of the house, the amount of damages awarded to the plaintiffs was excessive.

The first question arising in this appeal is whether the plaintiffs' suit is within time. The plaintiffs sue for damages on the covenant contained in the sale-deed, Exhibit 20, read with the agreement, Exhibit 19. The suit is not for recovery of the purchase-money paid by the plaintiffs' father to the defendant's father. It is urged on behalf of the appellant that the suit is barred by limitation under Article 62 of the Indian Limitation Act, and reliance is placed on the decision in the case of Ardesir v. Vajesing. In that case an agreement of sale was void ab initio and therefore the consideration failed from the date of the sale-deed, and the consideration paid to the vendor would be money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs' use. Their Lordships of the Privy Council in Hanuman Kamat v. Hanuman Mandur held that if there was never any consideration, then the price paid by the purchaser was money had and received to his account, and that where a contract was not void but was voidable, 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. To such a suit Article 97 of the Indian Limitation Act would apply. It would, therefore, follow that if the sale was void ab initio, and if the suit was brought for recovery of the purchase-money, Article 62 would apply, but where the sale-deed was voidable at the instance of a third person, the Article applicable would be Article 97 of the Indian Limitation Act. In both the cases referred to above possession was not handed over by the vendor to the vendee. When, however, possession is handed over by the vendor to the vendee, different considerations would apply. In Subbaroya v. Rajagopala, where a vendor who had a title to certain immoveable property voidable at the option of another person, sold it to the vendee and put the vendee in possession thereof, and the stranger who was entitled to the property brought a suit both against the vendor and against the vendee and got a decree and obtained possession thereof in execution, it was held that the vendee'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, and that the Article applicable was Article 97 of the Indian Limitation Act. The judgment dealt with three classes of cases, and as regards the third class, namely, where though the title is known to be imperfect and the contract is in part carried out by giving possession of the properties, it was held that the cause of action arose only on the disturbance of possession, and the decision of this Court in Narsing Shivbakas v. Pachu Rambakas was followed.

In Sankara Variar v. Ummer, where a purchaser under a Avoidable sale-deed from a qualified owner was dispossessed in execution of a decree obtained by a person entitled to avoid the sale, it was held that a suit by the purchaser for the return of the price was governed by Article 97 of the Indian Limitation Act, and that limitation began not from the date of the decree but from the date of actual dispossession. In that case the decision of the Privy Council in Juscurn Boid v. Pirthichand Lal Choudhury has been distinguished on the ground that the possession which the purchaser obtained was not actual possession, and reference was made to the remarks of the Privy Council at page 679 which are as follows:—

“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.”

In Narsing Shivbakas v. Pachu Rambakas it was held that the possession given under the purchase is an existing consideration so long as it lasts, and that in a suit by the vendee to recover the purchase-money from the defendant, Article 97 applied and that limitation would run from the date of dispossession of the purchaser. Though their Lordships of the Privy Council in Juscurn Boid v. Pirthichand Lal Choudhury observed that the decision of Beaman, J. in Narsing Shivbakas' case did not call for serious consideration, it is doubtful if they desired to say that it was erroneous in law. Their Lordships have not expressed their disapproval of the decision in the case of Narsing Shivbakas v. Pachu Rambakas. A similar view was taken by the Allahabad High Court in Ram chandar Singh v. Tohfah Bharti.

It would appear, therefore, from the decided cases that where a sale is void ab initio, and possession is not given to the purchaser, a suit to recover the purchase-money would be governed by Article 62 of the Indian Limitation Act. Where, however, the title is imperfect and possession is not handed over and it is subsequently discovered that the contract of sale became void, Article 97 would apply to a suit to recover the purchase-money on an existing consideration which afterwards failed, from the time when the purchaser endeavoured to obtain possession of the property and being opposed found himself unable to obtain possession, but where possession has been handed over by the vendor to the vendee the cause of action would not arise till the vendee is dispossessed. The present suit, if it had been brought to recover the purchase-money, would have been governed by Article 97 of the Indian Limitation Act and the cause of action to recover the purchase-money would have accrued on the day when the plaintiffs were dispossessed, i.e, in December 1924, and the suit brought in 1926 would have been within time. The present suit, however, is not for the recovery of the purchase-money paid to the defendant's father by the plaintiff's father. It is a suit to recover damages for breach of the agreement contained in the sale-deed, and the question arises as to the Article of the Indian Limitation Act applicable to such a suit. The learned First Class Subordinate Judge held that the proper Article applicable to the suit would be Article 83 read with Article 116 of the Indian Limitation Act.

On behalf of the appellant reliance was placed on the decision in the case of Martand v. Dhondo, where it was held that the suit was governed by Article 96 of the Indian Limitation Act, since both parties were under a mutual mistake and the plaintiffs' right to recover from the defendant their share of the loss which was caused by that mistake arose in equity, but that it was barred by limitation, for time began to run from the date of the decree of the trial Court and not from the date of the High Court's decree. It appears to me that the view of the lower Court that Article 96 does not apply to the facts of the present case is correct. It has been held by the learned Judge that the purchaser should be deemed to have knowledge of the fact that he purchased only the right, title and interest of Shankarlal, and that the present suit is not based on any mutual mistake of the parties. I think, therefore, that Article 96 of the Indian Limitation Act does not apply to the present case.

The case, however, of Martand v. Dhondo, is discussed in the case of Multanmal v. Budhumal, where it was held that “it might be said……in a case where two parties now in opposition have previously combined in order to resist the attempts of a third party to get possession of property, the subject-matter of the transaction between them, either that there was an agreement between the opposing parties that it should not be considered that there was no failure of consideration until the final decree in the suit was passed, or that one party induced the other not to take proceedings by filing a suit for money paid on an existing consideration which afterwards failed, until the question as to who was entitled to the property was finally decided.” According to this view the plaintiff's father and the defendant's father combined to resist the attempt of Vallabhdas to get possession of the property and the question was finally decided on February 18, 1924, and the present suit was brought within 3 years from that date. In Multanmal's case Article 116 of the Indian Limitation Act was held applicable to a suit brought to recover damages on the implied covenant under section 55(2) of the Transfer of Property Act, and it was observed by Fawcett, J. at page 334 as follows:—

“I agree, however, that a distinction should be made between cases where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property, and other cases, such as the present one where the sale is only voidable on the objection of third parties and possession is taken under the sale.”

Article 116 of the Indian Limitation Act would, in my opinion, apply to the present case which is brought for damages on the covenant contained in the deed. The covenant in the agreement, Exhibit 19, runs as follows:—

“In regard to the said property if any person whatsoever files a suit in the Court or shows any right or interest or takes any other steps, and if any expenses have to be incurred in connection with the same, the responsibility for the said expenses should remain on me and on you in half and half shares, and if in that matter any loss occurs, every kind of responsibility in regard to that loss in every possible way should remain on me and on you.”

The agreement contained in the sale-deed, Exhibit 20, is as follows:—

“If anybody filed a suit in respect of the property of this sale-deed the responsibility in regard to my half share sold above to you will lie on me, my heirs and my estate.”

Reading the two documents, Exhibits 19 and 20 together, it appears that the vendor agreed to indemnify the vendee in case any loss was caused to the vendee in any suit brought in respect of the property of the sale-deed. It is quite clear that the mere filing of a suit would not give a cause of action to the present plaintiffs to recover damages on this agreement. Even if a third person succeeded in that suit, until the plaintiffs were dispossessed, they would have no cause of action to bring a suit for damages for breach of this agreement.

It is urged on behalf of the appellant that the cause of action arose on April 7, 1916, when the Suit No. 212 of 1915 brought by Vallabhdas was decided. But it appears from the decision of the High Court that the auction-purchasers were given an opportunity to file a general suit for partition, and in pursuance of that direction the auction-purchasers brought a suit for general partition against Vallabhdas, and by enforcing the doctrine of marshalling the family property in favour of a purchaser from a member of a joint family according to the decision in Udaram Sitaram v. Ranu Panduji, the whole house could have been allotted to the share of Shankarlal, and in that event the plaintiffs would not have been put to any loss on account of the suit brought by Vallabhdas. The cause of action, in my opinion, to recover damages on account of the covenant in the sale deed could only arise when the plaintiffs were dispossessed, i.e in December 1924. In my opinion, the agreement in the sale-deed was a covenant to indemnify the present plaintiffs and Article 83 of the Indian Limitation Act would apply. As the document was registered, the Article applicable to the present suit would be Article 83 read with Article 116 of the Indian Limitation Act. Article 116 read with Article 83 was applied by the Madras High Court in the case of Srinivasa Raghava Dikshadar v. Rengasami Aiyangar, where it was observed as follows (p. 453):—

“It is, however, further argued that the provisions above cited amount to a covenant for title and that the breach must be considered to have occurred as and from the date of the deed … which in this case was more than six years before the institution of the suit. This is no doubt so in the absence of a special contract … but we think that in this case there was a special contract to indemnify the party as and when the deprivation took place. Under article 116 of the Limitation Act read with article 83 of the Act the plaintiff in the present case had six years from the date when he was actually damnified and the suit was within time.”

The covenant in the present case can be distinguished from the covenant in the case of Tulsiram v. Murlidhar, which was a covenant for quiet enjoyment. In that case possession was not handed over by the vendor to the vendee, and it was held that no suit could be based on the covenant for quiet enjoyment inasmuch as the purchaser never got possession and the sale-deed was not governed by the Transfer of Property Act. The covenant in the agreement of sale in this case was an agreement to indemnify the plaintiffs' father in the event of a suit being filed in respect of the property, and the defendant's father agreed to indemnify the plaintiffs' father against any loss that might be caused in such a suit brought by a third person.

I think, therefore, that the present suit is within time as having been brought within six years from the date when the plaintiffs were dispossessed.

The next question arises as to the amount of damages to be paid to the plaintiffs. It is urged on behalf of the appellant that the plaintiffs got more than half the portion by private arrangement with Vallabhdas, and therefore the amount of Rs. 5,000 awarded by the lower Court was excessive. The agreement between the plaintiffs and Vallabhdas has not been produced in the case, and we are not in possession of the facts culminating in the agreement between the plaintiffs and Vallabhdas. Besides the plaintiffs say that they are now in possession of the house to the extent of 18 feet whereas the whole house is 37 or 37½ feet in width. It is not, therefore, clear from the evidence that the plaintiffs got more than half the share in the house and that the partition was not an equitable one. It is urged on behalf of the respondents in support of the cross-objections that the value of the house at the time when the plaintiffs were dispossessed was at least 28,000 rupees and the lower Court ought to have awarded seven thousand rupees for the one-fourth share of the house. The witnesses, Exhibits 23 and 26, examined on behalf of the plaintiffs, do not support the contention on behalf of the respondents. We think, therefore, that the valuation put by the lower Court on one-fourth of the house at the time when the plaintiffs were dispossessed is correct.

We think, therefore, that the view taken by the lower Court is right and this appeal must be dismissed with costs, and the cross-objections must be dismissed with costs.

Appeal dismissed.

B.G.R