Refund limitation under a sale deed turns on when vendor delivery becomes impossible, not on the deed date itself.

A sale deed providing for delivery by the vendors was treated as creating a right to refund only when the vendors became incapable of performing that obligation, so limitation did not run from the deed date. The court also accepted that the plaintiff had not obtained possession directly or indirectly through the vendors, and rejected the defence based on delivery and Section 47 CPC. The proposed application of Order 21 Rule 2 CPC was held inapplicable, and the plaint amendment related back to the date of suit, keeping the refund claim within limitation.

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Issues: (i) whether the plaintiff obtained possession of the suit property, directly or indirectly through the vendors, so as to defeat the defence based on want of delivery and Section 47 of the Code of Civil Procedure, 1908; (ii) whether the claim for refund of the purchase money was barred by limitation under Article 116 of the Limitation Act, 1908.

Issue (i): whether the plaintiff obtained possession of the suit property, directly or indirectly through the vendors, so as to defeat the defence based on want of delivery and Section 47 of the Code of Civil Procedure, 1908.

Analysis: The finding of delivery was not satisfactorily recorded in the lower appellate Court and the documents bearing on the question were not duly considered. On the final reference, the Court accepted the finding that the plaintiff had not obtained possession either directly or indirectly through defendants 11 and 12. The suggested application of Order 21 Rule 2 of the Code of Civil Procedure, 1908 was rejected because the rule did not render such delivery void and did not govern the situation as contended.

Conclusion: The plaintiff did not obtain possession of the property, and the defence based on delivery under Section 47 failed.

Issue (ii): whether the claim for refund of the purchase money was barred by limitation under Article 116 of the Limitation Act, 1908.

Analysis: The sale deed contemplated delivery by the vendors, and the right to claim refund arose only when they became incapable of performing that undertaking. The Court held that limitation did not begin from the date of the sale deed itself, but from the date on which the vendors lost the power to give delivery. The amendment of the plaint related back to the institution of the suit, so the claim could not be treated as time-barred up to the date of amendment.

Conclusion: The refund claim was within limitation.

Final Conclusion: The appeal succeeded to the extent of the plaintiff's claim for refund, while the remaining relief against the other respondents did not survive.

Ratio Decidendi: Where a sale deed contemplates future delivery by the vendors, a claim for refund of the purchase money accrues only when performance becomes impossible, and a permissible amendment of the plaint relates back to the date of institution for limitation purposes.

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