Bageshwar Tewari vs Bikramjit Singh and Others

Dalal, J.—Mr. Janaki Prasad has placed all the rulings before me. They are Mul Kunwar v. Chattar Singh 30 A. 402 : 5 A.L.J. 480, Janak Singh v. Walidad Khan 30 Ind. Cas. 410 : 13 A.L.J. 669 and Hanwant Rai Vs. Chandi Prasad and Others . The question is which Article will apply, Article 116 or Article 62, when a suit is brought for the recovery of money on failure of consideration. In the present case the plaintiff paid Re. 50, to the defendants for the consideration of the defendants relinquishing certain rights. The deed for relinquishment subsequently failed because the defendants'' sons brought a suit for declaration that the deed was invalid and succeeded. According to the rulings the provisions of Article 116 will apply where there is a breach of covenant to indemnify the party suffering against loss caused to him by a defect in the title of the executant of the document. The covenant need not be express. It may be implied as in the case of a sale u/s 52(2) of the Transfer of Property Act for the refund of purchase money. If there is no such covenant Article 62 or 97 of the Limitation Act will apply. There is neither an express nor an implied covenant here. There is no law that on the failure of the defendants'' title to relinquish the rights of the family the consideration for the relinquishment would be refunded. The trial Court was, therefore, correct in applying Article 62 or 97, and this application is dismissed with costs.