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1978 DIGILAW 967 (ALL)

Mittan Singh v. Satyawati Devi

1978-09-29

GOPI NATH

body1978
JUDGMENT : GOPI NATH, J. 1. This is a Defendants' revision against an order of the District Judge, Mirzapur dated 3-9-1974 affirming the order of the trial court on issue number 4 which related to a question of limitation. 2. The Plaintiffs, by a sale-deed dated 26-7-1961, sold Bhumidhari plots, detailed at the foot of the plaint, for a sum of Rs. 12,750/-in favour of the Defendants. The sale deed was registered on 28th July, 1961. Out of the sale consideration, Rs. 8000/-were paid to the Plaintiffs at the time of sale and the balance amount of Rs. 4,750/-was undertaken to be paid by 18-6-1962. It was stipulated in the deed that in case the Defendants failed to pay that amount by the stipulated time, they would pay interest at the rate of one per cent per month on the same. The Defendant did not pay the balance amount, hence the Plaintiffs filed the suit on 3-7-1968 for the recovery of a sum of Rs. 4,750/-with interest at the rate of one per cent per month. They also prayed that the amount due may be made a statutory charge on the property u/s 55(4)(b) of the Transfer of Property Act. The reliefs claimed were as follows: (a) That a decree of Rs. 8,695/-being the principal amount due together with interest, be passed against the Defendants. (b) That a decree be passed for the above amount by enforcement of a charge on the property detailed at the foot of the plaint u/s 55(4)(b) of the Transfer of Property Act. (c) That costs of the Plaintiffs be awarded. (d) That any other relief which the court deems fit may be granted in favour of the Plaintiffs. 3. There is no dispute that title to the property passed to the transferees immediately after the execution of the sale-deed as the sale was a completed one and was made under a registered instrument. The Defendants contested the suit on a variety of grounds including a plea of limitation. According to them, the relief for personal decree was governed by Article 53 of the New Limitation Act corresponding to Article 111 of the old Limitation Act. The Defendants contested the suit on a variety of grounds including a plea of limitation. According to them, the relief for personal decree was governed by Article 53 of the New Limitation Act corresponding to Article 111 of the old Limitation Act. The suit, accordingly, was to be governed by the three years' rule of limitation as the principal relief was for a personal decree and the relief for the enforcement of the charge besides being an ancillary one could not be granted in view of the terms of the deed. No larger period of limitation was accordingly applicable to the suit and the whole suit was out of time. 4. Both the courts below rejected the plea of limitation. The trial court held that the suit was governed by Article 116 of the old Limitation Act as the cause of action for the same arose before the amendment of that Act by Act number 36 of 1963, and Section 30 of the new Act provided that any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 whichever expires earlier. The new Limitation Act by Article 52 provides for a period of three years for a suit by a vendor of immovable property for personal payment of unpaid purchase money; limitation is to commence from the time fixed for completing the sale, or (where the title is accepted after the time fixed for completion) the date of the acceptance. This Article corresponds to Article 111 of the old Limitation Act. Thus the Defendants' contention was that the suit was barred by the three years' rule of limitation, whether the new Limitation Act was applied or the old one. The Plaintiffs claimed that the suit was governed by Article 116 of the old Limitation Act by force of Section 30 of the new Act. That Article provides as follows: Description of suit.-For compensation for the breach of a contract in writing registered. Period of limitation.-Six years. Time from which period begins to run.-When the period of limitation would begin to run against a suit brought on a similar contract not registered. 5. That Article provides as follows: Description of suit.-For compensation for the breach of a contract in writing registered. Period of limitation.-Six years. Time from which period begins to run.-When the period of limitation would begin to run against a suit brought on a similar contract not registered. 5. Limitation for the suit was, accordingly, six years, and it commenced on the breach of the agreement. This contention was accepted by the trial court, and the six years' rule under Article 116 was applied to the suit. The Defendants went up in revision which was dismissed. The learned District Judge held that the suit was governed by Article 116 of the old Limitation Act, and the right to sue accrued when the Defendants committed a breach in the payment of the amount due from them under the agreement dated 26-7-1961. This occurred on June 18, 1962, and the suit having been filed on 3-7-1968, the reopening day of the civil courts, it was within time. There is no dispute that the six years' rule as provided under Article 116 of the old Act was applicable, then the suit, on the date it was filed, was within time. The only controversy is whether the suit was governed by Article 116 of the old Limitation Act or by Article 111 thereof which corresponded to Article 53 of the new Act. 6. The question for determination thus is whether Article 116 of the old Limitation Act governed the suit. 7. Learned Counsel for the applicants urged that the suit being one for recovery of unpaid purchase money by a vendor of Immovable property, Article 111 of the old Act was applicable to it. It was further contended that the suit could not be held to be one for compensation for breach of a contract, hence Article 116 was inapplicable to it. Article 111 reads: Description of suit.-By a vendor of immovable property for personal payment of unpaid purchase money. Period of limitation.-Three years. Time from which period begins to run.-The time fixed for completing the sale, or (where the title is accepted after the time fixed for completion) the date of the acceptance. Article 111 reads: Description of suit.-By a vendor of immovable property for personal payment of unpaid purchase money. Period of limitation.-Three years. Time from which period begins to run.-The time fixed for completing the sale, or (where the title is accepted after the time fixed for completion) the date of the acceptance. It could not apply in the instant case as the sale was a completed one and title of the vendees was accepted to the vendor on the execution of the sale deed and no time was fixed for the completion of the sale or the acceptance of the title. We are thus required to consider whether to a case for the recovery of unpaid purchase money which had not been paid within the time stipulated, Article 116 of the old Act could apply. In Ram Raghubir Lal v. United Refineries (Burma) Limited AIR 1931 Ran 139, it was held that to a suit for the recovery of unpaid purchase money under the terms of a deed which was registered, Article 116 of the Act was the article to apply. The word 'compensation' occurring in Article 116, it was held, had a wide connotation and could include a claim for a breach committed in the payment of an amount within the time stipulated under the agreement. It was observed that to all such cases in which the writing had been registered, the Article to govern the suit was Article 116 notwithstanding that the claim could have been brought under any other article of the Limitation Act. This view was based on the observations of the Privy Council in Tricomdas Coonerji Bhoja v. Sri Gopinath Ji Thakur AIR 1916 PC 182 where the Judicial Committee held that Article 116 applied to a case for the recovery of royalty agreed to be paid under a registered qabuliyat. It was observed that though Article 110 of the Limitation Act applied to suits for arrears of rent but suits for money for the breach of a contract were governed by Article 115 where the same was not in writing registered and by Article 116 where the same was in writing registered. It was held that the expression 'Compensation' had a wide scope and could include a claim where a breach was committed of a stipulation contained in the agreement. In Mt. Lakhpat Kuer Vs. It was held that the expression 'Compensation' had a wide scope and could include a claim where a breach was committed of a stipulation contained in the agreement. In Mt. Lakhpat Kuer Vs. Durga Prasad, AIR 1929 Patna 388, it was held that Article 116 applied to a suit for refund of purchase money where it was claimed under a writing which was registered. Reliance was again placed on the Privy Council case of Tricomdas Coonerji Bhoja v. Sri Gopinath Ji Thakur (supra). It was further held that the word 'compensation' in Article 116 had a wide sweep. In AIR 1933 143 (Privy Council) it was held that where the liability of the vendee arises in virtue of the conveyance, i.e. upon a contract in writing registered within the meaning of Article 116 the six years' period allowed by that Article applies. In AIR 1940 204 (Privy Council), the enforcement of a personal covenant to pay, contained in a registered mortgage-deed was held to be governed by Article 116. In Lala Shanti Swarup Vs. Munshi Singh and Others, AIR 1967 SC 1315 , it was held that if a conveyance contains a covenant by a purchaser to pay off an encumbrance on the property sold, the failure of the purchaser to do so may give rise to two different causes of action. In the first place, the failure of the purchaser to discharge the encumbrance within such time as is provided expressly or by implication entitled the vendor to bring an action to have himself put in a position to meet the liability which the purchaser has failed to discharge, and in such a case limitation will run under Article 116 of the Limitation Act if the sale-deed is registered, and under Article 115 if the same is unregistered. 8. The word 'compensation' in Article 116 has a broad meaning and will include a claim for unpaid purchase money where the same is based on a writing registered. Learned Counsel for the applicants invited my attention to Dip Narain Singh v. Nageshwar Prasad 1930 ALJ 45 and contended that there was a distinction between a mere contract and a transfer of property, and Article 116 was intended to govern the cases of mere contracts only and not of transfer of properties. Learned Counsel for the applicants invited my attention to Dip Narain Singh v. Nageshwar Prasad 1930 ALJ 45 and contended that there was a distinction between a mere contract and a transfer of property, and Article 116 was intended to govern the cases of mere contracts only and not of transfer of properties. The decisions in Babu Nisar Ahmad Khan v. Babu Raja Mohan Mauncha (Supra), Lala Shanti Swarup v. Munshi Singh (supra), AIR 1933 143 (Privy Council) and Ram Raghubir Lal v. United Refineries (Burma) Limited AIR 1931 Ran 139 have clearly laid down that a suit for the recovery of unpaid purchase money under an agreement in writing registered is governed by Article 116 of the Act, and the distinction between a contract and a transfer of property is not material for the attraction of that Article. Compensation for breach of contract in writing registered, in our opinion, includes a claim for the breach of an obligation undertaken in writing which is registered. The courts below, accordingly, rightly held that the suit was governed by Article 116 and was not barred by time. 9. The revision, accordingly, fails and is dismissed with costs.