Indian Kanoon - Search engine for Indian Law

7. The argument of the appellant's learned vakil, if I understood him aright, was that the law of the land does not require a judicial rescission of a contract or the judicial rescission of a registered lease deed or conveyance in order to enable the party to a contract or the executant of a conveyance to sue for reliefs flowing from the rescission of the contract or setting aside of the conveyance, as the case may be, provided that he himself repudiates the contract or the conveyance, his own repudiation, if found to be for good cause, having equal effect with a decree of court rescinding the contract or setting aside the conveyance. In considering this question, we have to bear in mind that Courts of Equity in England were not bound by any law of limitation so far as the distinctive reliefs granted by such courts were concerned. Equity no douht tried to follow the law as much as possible and refused to grant equitable reliefs where the plaintiff was guilty of laches. Laches took the place of limitation but the ground covered by the two was not the same in many cases. For instance, the law of limitation never took note of the fact that a plaintiff was unable to bring his suit within the period prescribed owing to poverty, but the doctrine of laches allowed poverty to be a good excuse, Expressions, therefore, quoted from several of the cases decided by Courts of Equity in England in which the effect of the repudiation by a party was not clearly distinguished from a judicial rescission, have not much force, because, where there is no question of limitation governing the power of the court to grant a judicial rescission, repudiation for good cause by the party and judicial rescission for the same good cause by the court when the matter comes before it can be practically put and talked of as if standing on the same footing. Again, even where the law of limitation affects the power of the court to grant or declare a judicial rescission in favour of a plaintiff, the power of the court to find in favour of a defendant that a proper rescission has taken place by the repudiation of the defendant for good cause and the power of the court on such a ground to non-suit the plaintiff, seem to be much larger, as has been held in the Full Bench case of Lahshmi Doss v. Roop Lal (1906) I.L.R. 30 M. 169. The defendant, though his right to bring a suit for rescission of a contract or lease may be barred, might be permitted to defend his possession of properties by showing that the contract or lease so voidable at his instance has been repudiated by him. Section 28 of the Limitation Act is as follows: - "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." This shows that it is only where a person is under a necessity to institute a suit for possession of the property to which he lays a claim (and where the time for instituting such suit has lapsed), that his title to the property is extinguished. But if he is himself in possession and it is only his right to sue as plaintiff to set aside or declare invalid the deed or title set up by another man that is barred, he could defend his possession by pleading, as defendant, the voidability of the deed or title set up by the plaintiff who seeks possession. I am not sure that even the defendant, unless he has perfected his title by adverse possession, should not be deprived of his possession if there is a registered deed (corresponding to a deed under seal in English Law), which, prima facie, has transferred title to the plaintiff, though it was voidable at the instance of the defendant, if the defendant had not brought the suit within the prescribed period to have that deed set aside. But the case of Lakshmi Doss v. Roop Lal (1906) I.L.R. 30 M. 169, has decided otherwise, though the learned Judges did admit the difficult nature of the question, and I do not wish to unsettle the law as fixed by that decision. A defendant who has properly repudiated a contract or a deed, might well be allowed to sit tight over his possession and defend his right to such possession by setting up, by way of plea, such proper repudiation by him, though he might be barred if he seeks positive relief as plaintiff on the basis of such repudiation. (Even a defendant could not however retain possession, if he had only a right to obtain a title-deed from his vendor and had lost that right by limitation - see the judgment of the Full Bench in Kurri Veera Reddi v. Kurri Bapyreddi (1906) I.L.R. 29 M. 336. If, as the appellant's learned vakil, Mr. K. Srinivasa Aiyangar, contends, the vendor became a trustee for the purchaser as soon as the contract for sale was made, and also gave possession to the beneficiary-purchaser of the property held in trust, he could not recover possession from the purchaser who had neglected to obtain the registered conveyance). But so far as a plaintiff seeking relief is concerned, the decision in Lakshmi Doss v. Roop Lal.(1906) I.L.R. 30 M. 169 does not help him ; on the other hand, there are observations in that case to the effect that a plaintiff seeking relief cannot evade the statute of limitations like a defendant. The question is, therefore, now narrowed to this point. Is a litigant coming forward as plaintiff for a relief which he cannot get if a document executed by himself or his predecessor-in-title is in force on the date of suit, is such a litigant entitled to the relief of possession after the expiry of the time fixed by law for the setting aside of that document and simply on his allegation and proof that he has himself repudiated the document on proper grounds, assuming that the document is voidable at his instance? If he brings a suit for possession within the time limited by law for setting aside that document, that suit, of course, might be taken as brought for both the reliefs of possession, and rescission, and there will be then no difficulty. The difficulty will arise only where the time fixed by law for a suit to set aside the document has lapsed, but the limitation for possession of the immoveable property dealt with under the document has not elapsed, and also in cases where the suit was brought after the expiry of the period fixed by law for the recovery of the property, if calculated from the date when the plaintiff became entitled to repudiate the contract, but within such period, if calculated from the date when he actully repudiated the contract or deed. However, it must be admitted that there is no Indian Statute expressly laying down that a person who comes in as plaintiff claiming relief against the effect of a deed voidable at his instance should have it judicially rescinded before or at the time of his getting that relief. But if judicial decisions have laid down the common-law of the land as requiring such judicial rescission, and if there are implications to be found in the statute-law supporting the judicial decisions as to the rules of the common-law, we are bound to follow such decisions. The common-law being founded on common sense, many of its principles will be found laid down in English cases also. And if the principles so laid down by English decisions have been adopted by the Privy Council and by the Indian High Courts, they form part of the law, binding upon Indian Courts. Hence, though I do not wish usually to refer to the English law, as numerous English decisions were referred to in the course of the arguments in this case, I shall very briefly refer to what I consider to be the result of those decisions. Isolated passages in several of those judgments can, no dubt, by ingenious interpretation, be made to support the appellant's view. I do not mean, however, to enter upon an elaborate refutation of the arguments advanced by the appellant's learned vakil based on such passages. I shall merely refer to what Lord Halsbury in his Laws of England, Vol. XX Para (1745) says on this point:

12. Having considered the common law and the implications of the statute law, I shall refer to a few of the decisions passed in Indian cases. Naturally the leading decision of the Privy Council, in Janki Kunwar v. A jit Singh (1887) I.L.R. 15 58 (P.C.), has to be first considered. That case arose out of a suit brought by the plaintiff on the 18th February 1884 to obtain the cancellation of a deed of sale, dated the 29th July 1872, (on the ground that it had been obtained from the plaintiff and her late husband by fraud and undue influence), and to have the property conveyed by the sale restored to the plaintiff's possession with mesne profits and costs upon certain conditions to be imposed on the plaintiff. Though the suit was brought within 12 years of the plaintiffs having lost possession of the conveyed property the Privy Council held that the suit fell under Article 91 and was barred. Criticising the judgment of the lower court, their Lordships say as follows: - "Then the Judicial Commissioner deals with the the case in a different way. He says that the suit is essentially a suit for the possession of immoveable property, and as such falls within the 12 years' limitation. Now this is clearly wrong there. It was not a suit for the possession of immoveable property could not have been recovered until the deed of sale had been set aside and it was necessary to bring a suit to set aside the deed upon payment of what had been advanced, namely, the Rs. 1,25,000. Therefore there has been on the part of the lower courts a misapprehension of the law of limitation in this case. Their Lordships are clearly of opinion that the suit falls within Article 91 of the Act XV of 1877 and is therefore barred." The appellant's learned vakil sought to distinguish this case by arguing that the Privy Council dealt with the case of a document voidable for fraud and not for undue influence. The facts of the case, however, clearly show that it was a case of undue influence. The word "fraud" is, no doubt, used in some places, but that word when used by courts is not confined to its meaning as defined in Section 17 of the Contract Act. Courts have always refused to define fraud exhaustively, as it is as hydraheaded as the devices of human ingenuity. Every unfair means used to obtain unconscionable advantage over another is spoken of as "fraud." In Sundaram v. Sithammal (1892) I.L.R. 16 M. 311, the suit was brought in 1889 for possession of land conveyed away in 1883 by one of the plaintiffs. The conveyance was found to have been obtained by undue influence. The two learned Judges who formed the Bench upheld the plaintiffs' claim on the ground that Article 91 did not apply but Article 144. With the greatest respect I must dissent from the ruling in this case, as, in my opinion, it is clearly opposed to the decision of their Lordships of the Privy Council in Janki Kunwar v. Ajit Singh (1887) I.L.R. 15 C. 58 One of the learned judges distinguished the case in J anki Kunwar v Ajit Singh (1887) I.L.R. 15 C. 58 on the ground that the plaintiffs in this latter case asked for a decree for their property being restored up on their paying to the defendants so much of the consideration money as might be found to be justly due under the sale deed which was impugned and the plaintiffs did not ask for a decree for unconditional possession. I am (with the greatest respect) unable to appreciate the distinction. The other learned Judge sought to distinguish the case in Janki Kunwar v. Ajit Singh (1887) I.L.R. 15 C. 58, on the ground that the plaintiffs in that case came into court expressly asking that the deed should be set aside as obtained by fraud and undue influence, whereas in the case in Sundaram v. Seethammal (1892) I.L.R. 16 M. 311, the plaintiffs did not pray for any such relief. I am equally unable to see how the ingenuity of a party in the wording of the reliefs claimable by him can affect the question of limitation. Their Lordships of the Privy Council in Malkarjun v. Narahari (1900) I.L.R. 25 B. 337, dealt with some arguments employed by the Bomaby High Court in Bhagwant Govind v. Kondi (1888) I.L.R. 14 B. 279, similar to the arguments employed in Sundaram v. Seethammal (1892) I.L.R. 16 M. 311, and remarked that they found it "impossible to grasp the reasoning behind such observations." The case in Malkarjun v. Narahari (1900) I.L.R. 25 B. 337, arose out of a suit for redemption of the plaint property brought without setting aside a judicial sale under which the mortgaged properties had been sold away irregularly in satisfaction of a money decree against the plaintiffs' predecessor-in-title, the mortgagee having purchased the equity of redemption in such court sale. I shall here quote some of the observations of their Lordships in this case. "A sale valid until set aside can be legally and literall y set aside; and anybody who desires relief inconsistent with it may and should pray to set it aside." "If a sale is a reality at all, it is a reality defeasible only in the way pointed out by law. In the adoption case just cited from 13 Ind. App., this Board remarked that there was no principle on which simple declarations of invalidity should be barred by the lapse of twelve years after the adoption, while the very same issue, if only mixed up with a suit for the possession of the same property, is left open for twelve years after the death of the widow. Their Lordships make the same remark now. What is the justification for refusing to construe Article 12(a) according to its obvious meaning whenever a suitor goes on to pray for that relief which is the object, perhaps the only object, of setting aside the sale? Their Lordships hold that both the letter and the spirit of the Limitation Act require that this suit, when looked on as a suit to set aside the sale, should fall within the prohibition of the article."