Jugaldas vs Ambashankar And Anr. on 1 March, 1888

Bombay High Court
Jugaldas vs Ambashankar And Anr. on 1 March, 1888
Equivalent citations: (1888) ILR 12 Bom 501
Author: C Sargent
Bench: C Sargent, N Haridas


Charles Sargent, C.J.

1. We have already decided that no case of estoppel arises on the evidence against the defendant; but the important question still remains, whether the defendant was debarred by the Limitation Act from pleading that the plaintiffs’ purchase of 12th September, 1878, was null and void for want of consideration and on the ground of fraud. As defendant was admittedly the tenant of the Ratansang Gokaji family, of whom the plaintiffs’ vendors were members, he had no independent right to impeach the sale by his own landlords, and could only do so with their consent, assuming it to be still open to the latter to impeach it, It is not disputed that he has such consent; and the question, therefore, for consideration is, whether the plaintiffs’ vendors could now impeach their own sale-deed.

2. It has been found by the Assistant Judge that as early as 1879 the vendors complained before the Mamlatdar that they had been cheated and had not received consideration, and it may, therefore, be assumed that they were then acquainted with all the facts entitling them to set aside the sale. By the end of 1882, at the latest, their right to file a suit for that purpose would, therefore, have been barred. The circumstance that they were in possession through their tenants could not affect the application of the Act. They would be equally bound to take proceedings to set aside the sale-deed within the time limited by the Act. Their right to impeach the sale by suit was, therefore, barred, and under these circumstances we do not think their tenant can be allowed to plead the invalidity of the sale in defence to an action to recover possession from him.

3. We must, therefore, reverse the decree of the Court below, and send back the case for a decision on the merits, having regard to the issues in the Court below other than No. 1. Costs to abide the result.

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