Subbaraya Reddiar v. Rajagopala Reddiar

JUDGMENT

1. The facts of this case are not in dispute. One Subbaraya Reddiar was the original owner of the properties now conveyed to the plaintiff. At his death his widow; Kanthammal, took possession of the properties of her husband; Gnanammal, the mother of Subbaraya Reddiar, executed in 1892 a deed of release of her claims in favour of Kanthammal. On 23rd August 1900, Kanthammal executed a release of her rights in favour of the father of defendants 1 and 2 and defendant 3. They are said to be the reversioners to the estate of Subbaraya Reddiar. In this release deed, executed by Kanthammal, Reference is made to the release obtained by her from her mother-in-law. The father of defendants 1 and 2 and defendant 3 by his guardian executed on the same day a sale deed to the plaintiffs. Plaintiffs were put in possession. Kanthammal died in 1904. In 1910 Gnanammal brought a suit to recover possession of the properties from the plaintiffs on the ground that her release of 1892 only related to her right to maintenance and that her right to succeed to her son's estate which accrued to her after the death of Kanthammal was not affected by the release. To that suit the plaintiffs and defendants were all parties. Gnanammal succeeded in her suit and she obtained possession of the property from the plaintiffs in 1911. This suit was brought within a year of the dispossession. The plaintiffs' present suit is to recover the amount paid by them to the father of defendants 1 and 2 and the mother of defendant 3, on the ground that the consideration for the sale failed when Gnanammal deprived the plaintiffs of possession of the properties. If Article 62 or Article 97, Limitation Act, applied the suit will be in time.

2. Mr. Srinivasa Gopalachariar contended that no such suit would lie and if the suit were entertainable, the cause of action having arisen on the date of the sale, viz. on 23rd August 1900, the suit was barred by limitation.

3. Upon the first question as to whether the suit will lie, I have come to the conclusion that there is no bar to the suit. The contention for the counter petitioner is that as there is no express covenant for title and as the plaintiffs took with full knowledge of the infirmities of title, the principle of caveat emptor applies and there is no cause of action. In India there is a statutory guarantee for good title unless the same is excluded by the contract of parties: vide, Section 55, Clause 2 of the Transfer of Property Act. The question of the knowledge of the purchaser does not affect the rights to be indemnified under the Indian Statute Law. Even in England, if on the face of the conveyance a prima facie title is secured, knowledge of facts which may lead to the discovery of flaws will not affect the claim to compensation: see Page v. Midland Railway Company(1). In the present case, the conveyance was prima facie unimpeachable, and I do not think the construction to which the release of Gnanammal lent itself in the eye of the law can be said to be knowledge of the defect of title.

4. On the second question as to when the cause of action for damages arose, a very large number of cases were quoted before me. 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. In the first class of cases, the starting point of limitation will be the date of the sale. That is Bakewell, J.'s, view, in K.A Ramanatha Aiyar v. Ozhaloor Pathiriserri Raman-Nambudripad(2); and I do not think that Miller, J., dissents from that view. That is not the present case. In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified. The cause of action will therefore arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat v. Hanuman Mandur(3) and in Bassu Kamar v. Dhum Singh(4) are authorities for this position. In the third class of cases also it is said that the cause of action will arise only on the disturbance of possession. No question of concurrence of third parties either to avoid or perfect the title arises in this case.

5. The most recent authority for this proposition is Narsing Shivbakars Marwadi v. Pachu Rambakas Marwadi(5). Miller, J., in the case reported as K.A Ramanatha Aiyar v. Ozhaloor Pathiriserri Raman Nambudripad, gives a qualified assent to the proposition laid down in that case. I do not find Bakewell, J., expressing his dissent from the view taken in that case. I agree with the view taken by Miller, J., that it is impossible to see “how the sale can be said to have been without consideration and consequently void ab initio where possession has been given under the contract of sale.”

6. The case before me, properly speaking, comes under the second class. If the widow, Gnanammal, did not recover possession the plaintiff would never have been disturbed. The sale was not void ab initio. It was only voidable if Gnanammal chose to avoid it; even if this view is not correct, I am prepared to hold that this case comes under the third class of cases where under an in valid contract possession had been given; until that possession is interfered with, the purchaser is not bound to ask for the return of his purchase money on the possible ground that at some future time his sale may be impeached. I therefore hold that the cause of action for this suit arose only when under the decree obtained by Gnanammal the possession of the plaintiff was disturbed. The decisions of Ardesir v. Vajesingh(6), Amrita Lal Bagchi v. Jogendra Lal Chowdhury*(8), all relate to cases where no possession passed to the vendee and consequently the consideration failed at the date of the sale. They have no bearing on the present case. On the other hand the judgments reported as Sriramulu…(Plaintiff) v. Chinna Venkatasami…(Defendant) .*(11) are cases where possession passed to the vendee and there was subsequent deprivation of possession. The Subordinate Judge is therefore wrong in holding that the plaintiff was not entitled to bring the suit to recover the purchase money that the cause of action arose on the date of the sale, and that the suit is barred by limitation. I reverse the decree of the Subordinate Judge and direct him to restore the case to his file and dispose of it according to law, costs to abide the result.

S.N/R.K

7. Decree reversed.