Bageswar Tewari vs Bikramajit Singh and Others

Dalal, J.—Mr. Janki Prasad has placed all the rulings before me. They are Mul Kunwar v. Chattar Singh[1908] 30 All. 402, Janak Singh v. Walidad Khan [1915] 13 ALJ 669, and Hanwant Rai v. Chandi Prasad AIR l929 All. 293. 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 Rs. 50 to the defendants for the consideration of the defendants'' relinquishing certain rights. The deed of relinquishment subsequently failed because the defendant''s 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 ease of a sale u/s 52(2), T.P. Act for the refund of purchase money. If there is no such covenant Article 62 or Article 97, Lim. Act, will apply. 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.