(1.) This is an appeal by the two defendants in the suit. The appeal although filed jointly, has been argued separately on behalf of the two appellants. The reasons will be apparent from the facts of the case which are as follows. The Raja of Basti owned the property in suit. It was eventually purchased by certain gentlemen known as the Pandes of Narharia in the district of Basti. An eight annas share in the village of Bhatendwa was sold by the said Pandes to Babu Nawal Kishore, appellant 1, for a sum of Rs. 6,000. The entire sum was left with the vendee for payment to certain mortgagees who were in possession. This was on 10 March 1914. Defendant 1 sold the property to the plaintiff on 31 August 1915 for a sum of Rupees 15,000. Out of this consideration money a sum of Rs. 9,000 was paid in cash to appellant 1 and Rs. 6,000 was left with the vendee for payment to the mortgagees who were duly paid. After this the sons of the Pandes of Narharia brought a suit against Sarju Ram Sahu, the plaintiff respondent in this case and Mr. Nawal Kishore, appellant 1, to recover the entire eight annas share on the ground that the family of the then plaintiffs and the vendors was a joint one and the vendors had no right to transfer the family property. The suit succeeded to the extent of seven annas eight pies share out of the entire eight annas share sold. Sarju Ram Sahu filed an appeal to the High Court but the appeal we, dismissed. Thereupon Sarju Ram filed an application to this Court for leave to appeal to the Privy Council. This was rejected and then he applied to their Lordships of the Judicial Committee for special leave to appeal. This application was also dismissed. Thereupon the plaintiff filed the suit out of which this appeal has arisen. In the plaint as originally filed the plaintiff stated that the defendants were members of a joint Hindu family and for some reasons best known to him defendant 2, the father of defendant had obtained the sale deed from the Pandes of Narharia in favour of his son, defendant 1. Later on the plaint was amended and it stood as if both the defendants had made the purchase, the sale deed being executed in favour of only one of the defendants. After this amendment of the plaint, the defendants filed their written statements. Defendant 1, Mr. Nawal Kishore, said that he was only a benamidar and he was not liable on account of any claim for damages and was not liable to refund any part of the purchase money. Defendant 2, the father, said that he was not an executant of the sale deed and therefore he was not liable. It was admitted by both the defendants that the father and son were members of a joint Hindu family. As regards the damages, the plaintiff stated in the plaint that the costs of the application for leave to appeal made in this Court and the costs of the application to His Majesty in Council for special leave to appeal had been incurred at the instance of Babu Jugal Kishore who had agreed to meet all the expenses if the applications proved unsuccessful.
(2.) The learned Subordinate Judge framed ?several issues and he held that the defendants being members of a joint Hindu family were both liable and that the plaintiff was entitled to recover a proportionate part of the purchase money paid by him and the costs incurred by him in his litigation with the sons of the Pandes of Narharia. He disallowed the amounts spent by the plaintiff in his applications for leave to appeal in India and in England. The defendants have filed this appeal and the plaintiff has filed a cross-objection in respect of the portion of the damages disallowed by the Court below. The appeal on behalf of appellant 2, Babu Jugal Kishore, has been argued by Mr. Upadhia and the appeal of Mr. Nawal Kishore, appellant 1, has been ?argued by himself. The argument on behalf of appellant 2 was that the sale deed did not contain any covnnant to indemnify the plaintiff and that in any case, all the important facts relating to the property had been mentioned in the sale deed and therefore the plaintiff having ?purchased with his eyes open was not entitled to recover any damages.
(3.) The sale deed has been read out to us. We do not find in it any statement of the fact that the Pandes of Narharia had sons who were members of a joint Hindu family with them. This was an important fact which Sarju Ram might have been told for his benefit. But the matter does not really stand on such a narrow ground. It is true that the sale deed in question does not contain any statement to the effect that the vendor was assuring the vendee that his title subsists. But by application of Section 55, Sub-section (2), there is an implied contract on the part of the vendor that his title subsists.