1. One Kanhaiyalal son of Ramprasad of Gadarwada obtained a preliminary decree for foreclosure on 10th September 1910, against Gaurishankar in Suit No. 66 of 1908 brought on foot of a mortgage. The said defendant failed to redeem the mortgaged property, namely fields of absolute occupancy tenure bearing Nos. 415 and 416, area 16.29, rent Rs. 40 and 3 houses including a plot situate in Gadarwada, and the preliminary decree was consequently made final on 6th December 1911 (Ex. P-10). The-decree was later on executed and possession of the fields foreclosed was taken on 12th April 1912, and that of the house property in June and December 1912, as per receipts Exs. P-7, P. 8 and P. 9. The actual possession, however, remained with the judgment-debtor, and Kanhaiyalal looked upon him as being wrongfully in possession, as recited in the receipt dated 27th November 1916 (Ex. P-1), which he executed in favour of the present plaintiff. This receipt evidenced a contract for a sale of the self-same property to plaintiff, for a consideration of Rs. 1,001 by Kanhaiyalal, who was being wrongfully kept out of possession by the person whom he had foreclosed, Kanhaiyalal had received Rs. 51 from the plaintiff by way of earnest money, and it was agreed that the balance of Rs. 950 was to be paid at the time of the registration of sale-deed. By the terms of Ex. P-1 and its counter-part Ex. D-8 the vendee was authorized to secure possession of the fields and the houses privately, or, by suit as he thought fit.
2. Plaintiff called upon Kanhaiyalal to perform his part of the contract of sale by executing a sale-deed in his favour but for some reason or the other, the document of sale was not secured, and consequently, the sale in his favour was not completed. Exhibits D-7, 9 and 10 are the notices which passed between the vendor and the vendee in connexion with the breach of contract of sale. These are dated 16th December 1916, 14th December 1916, and 22nd December 1916, respectively. It appears that the matter remained in suspense after that for some time. In the meantime of 22nd January 1917, Kanhaiyalal executed a conveyance (Ex. D-1) of the property in favour of Gaurishankar and the two minor sons of Laxminarayan Dube his nephew. As one of the purchasers was a judgment-debtor and already held actual possession, there was no formal delivery of possession to the vendees. The possession which the judgment-debtor held in spite of its symbolical delivery by Court to the decree-holder in April, June, and December 1912, thus became lawful (possession of the vendees entitled to hold it, in their own right, with effect from 22nd January 1917, subject to such rights, as there may be in favour of plaintiff by virtue of his contract of purchase dated 27th November 1916, (Ex. P-1). On 27th November 1919, the plaintiff instituted Suit No. 668 of 1919, for specific performance of the contract of sale dated 27th November 1916, against Kanhaiyalal his vendor. Exhibit D-6 is the plaint in that suit. Exhibit D-5 is the judgment dated 23rd August 1920, and Ex. P-13 is the decree passed in that case. In pursuance of this decree, a sale-deed was executed by Kanhaiylal, on 12th February 1921, (Ex P-2), and the same was registered on 21st February 1921. The consideration of Rs. 950 which had to be paid before the Sub-Registrar was deposited in the civil Court on 18th November 1920, as per receipt Ex. P-3 and the same is said to have never been withdrawn by Kanhaiyalal as he had already received the full consideration of Ex. D-1 from the appellants in 1917.
3. As the property covered by the sale-deed Ex. P-2 was in the possession of the present appellants, the plaintiff-respondent, on 23rd November 1922, instituted the present suit against them, be recovery of possession thereof with mesne profits. The first Court decreed the claim and the lower appellate Court confirmed that decree. Hence this second appeal.
4. It has been concurrently held by both the Courts below that the appellants' purchase, dated 22nd January 1917, (Ex. D-1), was with full notice of the plaintiff's contract of sale dated 27th November 1916. The appellants' contention that the plaintiff being admittedly aware, at the date of his Suit No. 66 of 1919, of his vendor Kanhaiyalal having sold the property to the appellants already, and of their having been in adverse or wrongful possession of the same from before the date of his contract as recited in Ex. P. 1, was bound to implead them also in that suit, as subsequent purchasers with notice of the contract and to obtain a decree for specific performance and possession as against them, and that he having omitted to sue for that relief then, is precluded from bringing the present suit for possession under O. 2, R. 2 of the CPC, was overruled. It was held that, it was not necessary to ask for possession or to join the appellants in the former suit, and that the present suit was tenable. It was further held that the suit for possession of the absolute occupancy fields was in time, as the right to possession came into existence when the sale-deed was executed on 12th February 1921.
5. The appellants contest every one of these findings in second appeal. But so far as the finding on the question of notice to them of the plaintiff's contract of sale is concerned, I think, it is not permissible to them to go behind it in second appeal. The only other points, which as questions of law can be gone into, are the following:
1. Whether the present suit for possession of the property comprising absolute occupancy fields and house property is barred by time as regards any portion?
2 Whether the present suit, for mere possession and mesne profits without a prayer for the relief of specific performance, is maintainable, in view of the admitted failure of plaintiff, to join the present appellants as co-defendants, and to obtain a decree for specific performance and possession, even as against them, in the former suit?
6. In spite of the delivery of symbolical possession of the property through Court to Kanhaiyalal in” 1912, the judgment-debtor Gaurishankar had been wrongfully, keeping him out of actual possession and enjoyment of the same, for over four years at the date of the purchase as per Ex. D-1, dated 22nd January 1927. The possession of Gaurishankar was, admittedly, wrongful, as recited in Ex. P-1 dated 27th November 1916. That such withholding of possession gives rise to a fresh cause of action for a suit for possession is clear from Dhansingh v. Ganpat(1), where it is laid down that
“the possession of the judgment-debtor after such (symbolical) delivery can only be regarded as a fresh act of trespass giving rise to a new cause of action.”
7. Kanhaiyalal's cause of action had thus accrued, and limitation had begun to run against him from 12th April, 7th June and 6th December 1912, when formal possession was taken, as per receipts, Exs. P-7, P-8 and P-9, under Article 142, Lim. Act: cf. Partap Chand v. Saiyida Bibi(2) and Kashinath Sitaram v. Shridhar Mahadeo(3). The starting point of limitation was the date of delivery of symbolical possession of the property comprised in the final decree for foreclosure as stated above. This period of limitation was to expire, so far as the fields were concerned, on 12th April 1924, and as to the house property, on 7th June and 6th December 1924. While he was thus wrongfully kept out of possession, but when his own right to sue was in time, he assigned by a private sale the benefit of the decree to plaintiff by an agreement dated 27th November 1916, and in pursuance of that agreement executed the sale-deed (Ex. P-2) in his favour on 12th February 1921. Under Article 136, Sch. 1, Lim. Act of 1908, the plaintiff in his capacity of a private purchaser had 12 years' limitation to sue for possession of immovable property sold to him by his vendor when out of possession’ at the date of sale, the starting point of limitation being the date when the vendor was first entitled to possession: cf. Ganpat Rao Bhonsle v. Ganpat Rao Gopal Rao Ghatatey(4).
8. I am not, therefore, prepared to hold that the mere circumstance that the plaintiff took five years to complete his title as against Kanhaiyalal could give him a fresh starting point of limitation, as he could sue only in the right of his vendor under Article 136. So, irrespective of the question that the suit for possession was not brought by Kanhaiyalal, but by plaintiff, as his assignee, the starting point of limitation remained a constant factor, namely, the dates of the symbolical deliveries as per receipts for possession (Exs. P-7, P-8 and P-9) The present suit for possession was, so far as the house property was concerned, surely within time, as, on 23rd November 1922, the limitation of 12 years had not run out. No question of limitation, therefore, arises so far as the house property is concerned for the purposes of this second appeal unless it may under Article 113, which I will consider later on.
9. But it is contended by the appellants that as regards the absolute occupancy fields the position is quite different. The present claim for possession in regard to them was barred by limitation on 23rd November 1922, as it ought to have been instituted at the latest on 1st May 1921, in view of the provisions of Section 104(2) of the C.P Tenancy Act, read in conjunction with the special limitation prescribed by Article 1, Sch. 2 of the said Act. In answer to this contention the plaintiff's learned pleader urged that as the appellants” purchase, dated 22nd January 1917, was with notice of his client's prior contract of sale dated 27th November 1916, no plea of limitation can be available to them, in view of Section 10 of the Lim, Act, and that, however wrongful the previous possession of Gaurishankar may have been, it became converted into possession, derived from Kanhaiyalal, the lawful owner thereof, on the date of the sale dated 22nd January 1917, and was stamped with the character of possession lawfully taken from plaintiff's vendor and as such the same was held by the appellants as trustees for him, or, at any rate, subject to such equities as may have been created in his favour by reason, of the purchase being with notice of his prior contract.
10. The question as put by the learned pleader for the respondent turns upon the constructions and applicability of Section 10 of the Lim. Act, to the facts of this case. In this connexion the period of possession between April 1912 and the date of the suit may be divided into parts:
(1) The period from April 1912 to 27th November 1916, (Ex. P-1);
(2) the period from 27th November-1916, to 22nd January 1917, (Ex. D-1);
(3) the period from 22nd January 1917, to 27th November 1919, the date of Suit No. 68 of 1919;
(4) the period from 27th November 1919 to 12th February 1921 (Ex. P-2) and
(5) the period from 12th February 1921 to 23rd November 1922.
11. I will now deal with these periods.
12. As regards the first period there can be no doubt as to the wrongful or adverse nature of Gaurishankar's possession. Kanhaiyalal has frankly admitted it to be so in Ex. P-1 and the whole tenor of the document clearly shows that he did act want to undertake to procure delivery of possession to plaintiff but distinctly directed the latter to secure it as best as lie could privately or by suit if necessary. As to the second period, there is nothing to show that the adverse character of possession was expressly changed. The question, however still remains for consideration whether by reason of Gaurishankar and his minor grandnephews taking the sale deed (Ex. D-1) on 22nd January 1917, from Kanhaiyalal with notice of plaintiff's contract (Ex. P-1) they must be deemed to have converted their own adverse possession into a sort of possession held by them, as it were, in conjunction with Kanhaiyalal i.e, as a trustee of plaintiff for working out the latter's right under his prior contract of sale? When a person has possession of another man's property, the legal character in which he holds it is determined by his animus. In purchasing the property from Kanhaiyal by payment of consideration they could not be considered to have expressly contracted to change the character of their possession. At any rate Gaurishankar could not be said to have consented to hold possession for or on behalf of plaintiff. As, on the contrary, he and the minors got Kanhaiyalal to covenant that they shall thereafter hold the property in their own right, they have shown their animus with sufficient definiteness. Under the terms of their sale deed (Ex. D-1) they cannot, therefore, be considered to have taken possession in any capacity other than that of legal owners, much less could they be regarded as having taken possession under any express trust for the benefit of plaintiff merely because they had notice of his prior contract of purchase as per (Ex. P-1.) Let us next see whether law or equity superimposes a constructive trust.
13. In order to create a trust with refer-once to immovable property the Indian Trusts Act (2 of 1882), which is applicable to this case, requires a registered instrument signed by the author of the trust or the trustee and there must be a clear indication of an intention to create a trust. There is nothing in the wording of Ex. D-1 to show that either Kanhaiyalal the vendor or the appellants vendees intended to create any trust. Section 10 of the Lim. Act, lays down that no suit against a person in whom property has become vested in trust for any specific purpose, for the purpose of following in his hand such property shall be barred by any length of time. The words used are “in trust for any specific purpose.” The expression “trust for any specific purpose” is merely a more expanded mode of expressing the same idea as that conveyed by the term “express trust” by the English law and it means the same thing as the express trust of the English law both the phrases being synonymous in meaning: cf. Mathuradas v. Vandrawandas(5). The Trusts Act restricts the scope of the term trustee more closely than in England and considers constructive and resulting trusts as not trusts but as obligations, in the nature of trusts: see Chap. 9. It, therefore, follows that Section 10 of the Lim. Act excludes from its operation such trusts as the law would imply merely from the existence of particular facts or fiduciary relations: of. Kherodemoney Dossee v. Doorgamoney Dossee(6), Secretary of State v. Radkika Prasad Bapuli(7), Ma Thein May v. U Po Kin(8) and Kishan Dei v. Ram Chand(9) It is for this reason held that if a person has been in possession not being a trustee but still being in under such circumstances that a Court, on principles of equity, would hold him a trustee, he is not an express trustee and if the possession of such a constructive trustee has continued for more than 12 years, he may set up the statutes against the party who but for lapse of time would be rightful owner: cf. Barkat v. Daulat(10).
14. The position of a constructive trustee in the usual sense of the word, that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of Equity was widely different (from that of an express trustee) and it had long been settled that time ran in his favour from the moment of his so taking possession. This rule is illustrated by the well known judgment of Sir William Grant, M.R, in Beakford v. Wade(11): “It is certainly true,” said that learned Judge “:
“that no time bars a direct trust, as between cestui que trust and trustee; but if it is meant to be asserted, that a Court of Equity allows a man to make out a case of constructive trust at any distance of time, after the facts and circumstances happened, out of which it arises, I am not aware, that there is any ground for a doctrine, so fatal to the security of property as that would be; so far from it, that not only in circumstances, where the length of time would render it extremely difficult to ascertain the true state of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear, that relief would originally have been given upon the ground of constructive trust, it is refused to the party, who after long acquiesce noes comes into a Court of Equity to seek that relief: see Taylor v. Davies(12).”
15. The underlying principle of Section 27(b) of the Specific Relief Act and its illustrations, is that from the time of the contract for the sale of the land the vendor as to the land becomes trustee for the vendee and the vendee as to the purchase money a trustee for the vendor who has a lien upon the land therefor. Everyone coming in by subsequent and representative title and every subsequent purchaser from either with notice, becomes subject to the same equity as the party would be to whom he succeeds or from whom he purchased. It is for this reason provided that where a bona fide contract is made or the sale of the property and another person afterwards buys the property with notice of the contract, the title of the party claiming under the contract prevails against the subsequent purchaser, although his purchase may have been registered and although he has obtained possession under his purchase: of. Harnandun Singh v. Jawad Ali(13) The case of such subsequent purchaser falls under Section 91 of the Trusts Act. As such it is a trust created by operation of law or by conduct of parties and cannot be called an express trust. Being resulting or constructive trust it is outside the purview of Section 10 of the Lim. Act. I therefore, overrule the contention of the respondent that when the appellants took a sale from Kanhaiyalal on 22nd January 1917, they became trustees for a specific purpose within the meaning of Section 10 of the Lim. Act. They, no doubt, be-came trustees but the nature of the trust instead of being express, was constructive, and, consequently, the Statute of Limitation ran in their favour from the moment of their taking possession as purchasers. They could, therefore, plead limitation to the same extent to which their vendor could have pleaded it in answer to a suit by plaintiff to enforce specific performance of the contract of sale. This will clearly show that the possession of Gaurishankar prior to 22nd January 1917, and that of himself and his grandnephews since that date, was clearly adverse to Kanhaiyalal, and, therefore, necessarily also the plaintiff. The hostile nature of that possession might have been arrested in 1920 by obtaining against them a decree in Suit No. 68 of 1919 had the appellants been impleaded as parties thereto, and a decree obtained against them along with Kanhaiyalal.
16. The proper decree in a suit for specific performance of a contract to sell land when the same has been sold to a third party subsequent to the contract with the plaintiff is to direct the subsequent purchaser to execute a conveyance to the plaintiff: cf. Subiha Pillai v. Velappa Naicken(14) and Krishnaji Babaji v. Sangappa Murigappa(15). It, therefore, follows that in view of Section 27(b) of the Specific Relief Act, Section 91 of the Trusts Act, it was open to the plaintiff to so frame his suit with reference to O. 2, R. 1 of the CPC, as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. As the appellants were in possession under a subsequent purchase taken from the plaintiff's vendor Kanhaiyalal, and, if as found by the Courts below, their purchase was with notice of the plaintiff's prior contract of sale, he had really one cause of action to sue to enforce specific performance of the contract of sale and possession against the party to the contract, viz., Kanhaiyalal, and the subsequent transferees from him, viz., the appellants. Though the former Suit No. 68 of 1919 was not liable to be defeated merely on the ground of non-joinder of the present appellants as parties thereto, as O. 1, R. 9 of the Code is clear on the point, it is clear that the mere obtaining of a decree in that suit and the execution of sale-deed (Ex. P-2) by the judgment-debtor Kanhaiyalal in pursuance of that decree behind the back of the appellants did not put an end to all controversy relating to or existing between all parties interested in the property comprised in that sale. It was still left open to the appellants to contest the plaintiff's right to obtain specific performance of the contract of sale and possession of the property as a consequence of such performance being decreed against them. It gave them opportunity to raise a further plea of limitation as regards the present claim, and to even urge that the suit as brought for possession of the property without suing for specific performance or after such a suit for specific performance had become barred by limitation, was not maintainable as against them.
17. It is clearly laid down by their Lordships of the Privy Council in Subbaraya Pillai v. Venkata Perumal(16) that a vendee whose suit for specific performance is barred by Article 113 cannot recover possession of the property sold because a suit for possession, i.e, to enforce his right under the contract with reference to property is essentially one for specific performance of a contract to which Article 113 applies. The right to possession springs out of the sale contract and the relief by giving possession is comprised in the relief by specific performance and it cannot be governed by any article except Article 113. The right to possession being dependent on the sale contract, if the suit is barred for specific performance it cannot be maintained for possession of the property sold under the contract: Muhiuddin Ahmad Khan v. Majlis Rai(17) Hargovindas Lakshmi Das v. Baji Bhai Jijibhai(18) and Venkanna v. Venkatakrishnayya(19).
18. The limitation for a suit for specific performance began under Article 113 when the vendor refused to the plaintiff's knowledge to perform the contract. Such knowledge could be imputed to plaintiff when he demanded performance by his notice dated 14th December 1916, (Ex. D-9) and the vendor refused it by his notice dated 16th December 1916, (Ex. D-7) which reached plaintiff on 22nd December 1916 (Ex. D-10). The limitation having thus begun to run against him since 22nd December 1916, (Ex. D-10), the three years' period expired on 22nd December 1919. With the loss of limitation for enforcing specific performance against the present appellants, the plaintiff lost his right to recover possession, also as already stated in para. 16 above. The mere obtaining of decree subsequently on 23rd August 1920 (Ex. P-13) against Kanhaiyalal could not give plaintiff any additional right to obtain a decree for specific performance against the appellants after he had once lost his limitation, much less could the execution of the sale-deed, dated 21st February 1921, by Kanhaiyalal give him any new right to demand possession from persons not bound by the decree. They were transferees under a registered deed executed long prior to the institution of Suit No. 68 of 1919. As such neither the decision (Ex. D-6) nor the decree (Ex. P-13) could operate as res judicata as between plaintiff and the present appellants. Plaintiff thus ceased to have any subsisting cause of action to enforce against the present appellants since 1919 and their suit for possession for house property and fields was bound to fail in view of the Privy Council decision quoted above. In this view of the case it is unnecessary to go into the further question whether the suit would be barred under the provisions of Section 104(2) read with Article 1, Sch. 2 of the C.P Tenancy Act of 1920. If any decision were necessary on this point, I would be prepared to hold that when the plaintiff compelled Kanhaiyalal by means of the decree Ex. P-13 to give him a completed sale-deed (Ex. P-2) on 12th February 1921, he had still left to him more than three months to sue for possession, if he could maintain under law a suit for mere possession without a prayer for specific performance of the contract of sale. The one year's grace period counted from 1st May 1920, the date of the commencement of the new Tenancy Act of 1820, granted by S. 104(2) had not then expired. In unnecessarily postponing the institution of the present suit even after that date, to 23rd November 1922, the plaintiff has done further damage to his own case, by allowing it to become barred by limitation even with reference to the requirements of the local tenancy law. It will thus be seen that the possession of the defendants-appellants which was adverse from its commencement continued to be so, throughout all the five periods mentioned in para. 10 of this judgment, and the suit as laid was liable to be dismissed altogether as barred by the statute of limitation, and also because a suit for possession without a prayer for specific performance which was barred by time could not lie.
19. No doubt plaintiff had offered to amend, and actually amended, the plaint by adding a prayer for the relief of specific performance. This amendment being dated 5th October 1923, when a suit for specific performance was clearly barred by limitation was of no avail. As a result of these conclusions, I allow the appeal and dismiss the suit for possession and mesne profits with costs throughout to be borne by the plaintiff.
P.N/R.K
20. Appeal allowed.