Starting point of limitation for filing suit.

Ganapatia Pillai, J.- This Letters Patent Appeal is directed against the decree and Judgment of Mack, J., which set aside the order of remand of the District Judge of South Kanara and restored the Judgment of the learned Subordinate Judge of that place. The suit out of which this appeal arises was laid by the present appellant for recovery of unpaid purchase money due under the sale Exhibit A-2 of the year 1916. This sale deed dealt with property belonging to the appellant’s family and the total price due under the deed was Rs. 28,000. Out of this, a sum of Rs. 3,000 was retained by the vendee, one D’Souza, to meet the liability due under the indemnity bond Exhibit B-1. This indemnity bond was given by Ananthayya Konde., one of the vendors, in regard to a litigation which releated to another property in O.S. No. 226 of 1912. The anticipated loss related to the possibility of three minor children of Ananthayya Konde abovementioned instituting suits with reference to the properties involved in O.S. No. 226 of 1912, and admittedly the youngest of these minors attained majority in 1918. D’Souza the purchaser under Exhibit A-2, sold the property to Ananteswarar Temple, the respondent in this appeal, some time in 1934. The suit was dismissed by the learned Subordinate Judge on the finding that under Article 132 of the Limitation Act the suit should have been brought within 12 years from the date of the sale deed Exhibit A-2. There are also other findings of the learned Subordinate Judge which it is not necessary to deal with for the purpose of this appeal. The learned District Judge set aside this finding of the learned Subordinate Judge on the question of limitation by taking the view that according to the term in Exhibit A-2 the plaintiff had 12 years from the date when a release deed was procured from the persons who were entitled to the benefit of the indemnity under Exhibit B-1 and since the release deed had not been so procured till 1942, the suit was in time. Mack, J., disagreed with this view and held that the term “when the money becomes due” occurring in Article 132 of the Limitation Act should be construed with reference to the capacity of the charge-holder to collect the unpaid purchase money, in this case on the happening of the contingency mentioned in Exhibit A-2. The term in Exhibit A-2 is as follows:

“So the stun of Rs. 3,000 is retained with you (the vendee) till such time as a proper release exonerating the property from the liability under the bond is obtained in your favour. You should pay interest on the said amount of Rs. 3,000 at 3½ percent, per annum on the 14th June every year and you should pay us the principal amount thus kept in suspense in your hands as soon as the release mentioned above is procured in your favour”.

The interpretation of this clause accepted by the learned District Judge would lead to the absurd result that if for some reason or other the party interested in getting the release deed postpones or abandons such getting, the starting point of the period of limitation will be indefinitely postponed. We entirely agree with Mack, J., when he says that this term in Exhibit A-2 was intended only for the benefit of the vendee. The plaintiff in the suit the appellant before us, could hot take advantage of this clause by causing P.W. 1 to execute a release deed in 1942, nine years after the period of limitation had run out and then claim a new starting point of limitation from that date. The true principle is that the unpaid purchase money became due that is payable according to the true construction of Exhibit A-2 the moment the liability under Exhibit B-1 was extinguished either by efflux of time or otherwise or by voluntary act of parties like execution of the contemplated release deed. Once the liability was extinguished it was open to the vendor to claim the sum of Rs.3,000 left with the vendee. This event happened in 1921. The last of the minors had attained majority three years earlier, and

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