THAMMINENI PAPARAO AND ORS. Vs. DHAVALA POLINAIDU AND ANR.
LAWS(MAD)-1944-12-5
HIGH COURT OF MADRAS
Decided on December 04,1944

Thammineni Paparao And Ors. Appellant
VERSUS
Dhavala Polinaidu And Anr. Respondents

JUDGEMENT

Chandrasekhara Ayyar, J. - (1.) THE plaintiffs' father, one Latchayya, purchased certain properties from defendants 1 and 2 under the sate deed Ex. A on 29th October, 1933, for a sum of Rs. 4,500. The properties consist of jeroiti lands and inam lands. The step -mother of the defendants had obtained a maintenance charge decree against the jeroiti lands in O.S. No. 480 of 1930. In execution of this charge decree, the jeroiti lands were sought to be brought to sale and it is said that the plaintiffs had to deposit a sum of Rs. 96 -6 -0 into Court to avoid the sale. It is further alleged that on a later occasion they had to pay Rs. 170 towards the charge decree and that finally the properties were brought to sale in Court auction and were purchased by a third party on the 7th December, 1942, for a sum of Rs. 238 subject to the payment of the annual maintenance of Rs. 60 to the decree -holder. The purchaser obtained delivery through Court and ejected the plaintiffs. All these are stated in the affidavit in support of the application to admit the sale certificate and the delivery receipt as additional evidence in this second appeal. In the counter -affidavit opposing the applications the chief point made is that the purchaser Jagannadha Acharlu is a benamidar for the plaintiff and that the lands despite the Court, auction sale continue to be in their possession.
(2.) RELYING therefore on the defect in title as regards the jeroiti lands comprised in the sale deed and specified in the B schedule to the plaint, the plaintiffs brought this suit claiming to recover by way of damages for breach of contract of covenant of title a sum of Rs. 2,658 -8 -0 said to be the price of the properties, and a further sum of Rs. 200 said to be the loss suffered by them on account of breach of covenant of title, as well as the sum of Rs. 96 -6 -0 which they paid on 20th December, 1939, to avert the sale in execution of the charge decree in O.S. No. 480 of 1930. The defendants resisted the suit on three grounds. Firstly, there was no representation made to Latchayya that the properties were not subject to any charge or charges, secondly, that Latchayya knew of the creation of the charge, as it was he that was conducting the suit, O.S. No. 480 of 1930, on behalf of these defendants, and thirdly, that the sale was for a lower price than the market price because it was made subject to the charge. The District Munsiff overruled these objections and gave the plaintiffs a decree. But on appeal the District Judge has come to the conclusion that Latchayya was aware of the charge decree when he purchased the properties under Exhibit A and that after the purchase he was himself paying for some years the maintenance amount to the step -mother. He has also found that the price of Rs. 4,500 was less than the market value of the lands on the date of the sale and the low price was agreed to on account of the charge on the B schedule properties. Latchayya's daughter is married to the second defendant and, according to the District Judge, after quarrels arose between them Latchayya defaulted to pay the amounts due to the step -mother under the charge decree purposely and with the object of harassing the second defendant with a litigation of this kind. His final conclusion is stated in paragraph 8 of the judgment in appeal in these words: So taking all these circumstances into consideration I hold that the buyer as well as the seller were aware of the defect and that for reasons of their own and concerning which we have no evidence they have agreed not to disclose in the sale deed the maintenance charge. On this finding the plaintiffs' suit was dismissed. It has been held in several decisions that the fact that the buyer knew of a defect in title of the seller prior to the purchase does not prevent him from suing for damages for breach of covenant of title. Therefore mere knowledge on the part of Latchayya when he purchased under Ex. A that there was an outstanding charge decree against the B schedule properties is no bar to the present suit. But it is urged that the District Judge has found that the sale was subject to this charge and that this alters the situation in favour of Latchayya, the purchaser. The contention urged against this finding is that under Section 92 of the Evidence Act it was not open to the District Judge to take into account any such oral evidence, as to hold so would be to contradict a term of the contract of sale. Even if there was no express covenant for title, the implied covenant under Sub -clause (2) of Section 55 will have to be taken into account and read as part and parcel of the sale deed between the parties in the absence of any contract to the contrary.
(3.) IN Ex. A we have an express covenant for title in these terms: Having assured you that these lands belong to us only and that they are in our enjoyment and that we never effected any alienations, etc., previously we have sold the same to you. In the face of this express covenant, it is difficult to see how evidence can be adduced to show that the purchase was subject to any encumbrance or encumbrances. The decision of Devadoss, J., in Gondu Ramasubbu Iyer v. Muthia Kone was relied on by Mr. Parthasarathi in support of the view that a declaration as to title or the absence of an encumbrance is not one of the terms of the contract for sale and evidence can be adduced to show that the buyer was aware of the defect in title even when there is a definite recital in the sale deed that there is no encumbrance. The decision no doubt supports the view, but with great respect I am unable to agree with it. An express covenant for title or for freedom from encumbrances such as we find in this case cannot be regarded as a mere recital which can be contradicted by oral evidence. Such covenants are terms of the contract itself, and any oral evidence to contradict them falls within the mischief of Section 92 of the Evidence Act. Even the statutory covenant for title which is implied in every contract for sale of immovable property must, according to Muhammad Siddique v. Muhammad Nuh : I.L.R. (1930) All. 604, be deemed to be embodied in the deed of sale. So I cannot accept the finding of the learned District Judge that the sale was subject to this maintenance charge as a valid one operating as against the express covenant found in the sale deed.;


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