Decided on March 30,1944

P. Ranganatham Pillai And Anr. Respondents


Alfred Henry Lionel Leach, C.J. - (1.) ON the 16th January, 1940, the first respondent and his brother P. Narayanaswami Pillai sold certain house property to the appellant for the sum of Rs. 37,000. The consideration for the sale was the discharge of fourteen mortgages which had been created by the vendors, or one of them for loans aggregating Rs. 28,745 and the balance in cash. The vendors covenanted that the property sold was free from any charge, lien or other incumbrance except mortgages specified and that the property was not subject to any proceeding of Courts, decree, attachment, maintenance decree or otherwise. They agreed to keep the purchaser indemnified against any such claims and tc make good all loss, damage and expenses that the purchaser might suffer. P. Narayanaswami Pillai was adjudicated an insolvent on the 25th February, 1941. Before his adjudication a creditor had filed a suit to recover from him the sum of Rs. 4,043 -1 -0 and, on the 19th April, 1939, obtained an attachment before judgment. The creditor was granted a decree and in order to prevent the right, title and interest of P. Narayanaswami Pillai being sold in execution the vendee had to pay off the creditor. The amount involved was Rs. 5,375. As the elder brother did not reimburse the vendee and as the insolvent was not in a position to do so, the vendee instituted the suit which has given rise to this appeal.
(2.) THE action was tried by Bell, J. : AIR1943Mad752 who found for the plaintiff in the ram of Rs. 1,720 -9 -0, for which he gave him a decree. The plaintiff says that the learned Judge entirely misunderstood the legal position and that under the covenant and under Section 55(1)(g) of the Transfer of Property Act and Section 69 of the Contract Act he was entitled to a decree for the full amount claimed. We consider that this contention is well founded. In arriving at the figure of Rs. 1,720 -9 -0, the learned Judge estimated that this was the value of the younger brother's share in the equity of redemption and that this was what the plaintiff would have to pay if he had taken steps to raise the attachment. This is refer speculation. The learned Judge's arithmetic in arriving at the figure of Rs. 1,720 -9 -0 is not even accepted, but it is not necessary to go into figures because the vendors are liable under their covenant and under the sections mentioned to reimburse the plaintiff for any amount due under a lawful attachment provided that he had paid it. The plaintiff could not in law be required to enter into negotiations with the attaching creditor for a reduction of the amount, nor could he be compelled to wait until the property was put up for sale, even though he might have purchased it himself for a lesser sum. The vendors had covenanted that the property was free from attachment and they undertook to pay whatever the vendee was required in law to pay to remove an attachment should one be found to exist. There was a lawful attachment in respect of the sum of Rs. 5,375 and this the plaintiff paid in order to free his title.
(3.) THE decree passed by the trial Court must be amended to provide for the payment of the sum of Rs. 5,375 with interest at the court rate from the date of suit to this date and thereafter on the decretal amount until payment or realisation. The appellant is entitled to his costs here and below on this amount. They will be paid by the first respondent who has opposed the appeal. The plaintiff will, of course, be entitled to prove as against the second brother in the insolvency proceedings. The costs of the Official Assignee will come out of the estate.;

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