Ramaswami, J. - (1.) In the suit which is the subject-matter of this appeal the plaintiffs alleged that Plaint 'A' Schedule properties belonged to the second defendant and his son, the third defendant. The second defendant sold the village for Rs. 28,000 to one Swaminatha Sarma by a sale-deed Ex. A, dated December 12, 19l2 which he executed for himself and as guardian of the third defendant who was then a minor. The second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minor Son's half share should later on be set aside. Accordingly the second defendant executed the Indemnity Bond-Ex. B in favour of Swaminatha Sarma. The sons of Swaminatha Sarma sold Plaint 'A' Schedule village to the father of the plaintiffs for a sum of Rs. 53,000. On the same date they assigned the Indemnity Bond-Ex. B to the father of the plaintiffs under an Assignment Deed- Ex. D. The third defendant after attaining majority filed O. S. No 640 of 1923 in the Chief Court of Pudukottai for setting aside the sale-deed-Ex. A in respect of his share and for partitions of joint family properties. The plaintiffs were impleaded as defendants 108 and 109 in that suit. The suit was decreed in favour of the third defendant and the sale of his share was set aside on condition of his paying a sum of Rs. 7,000 to defendants 108 and 109, and a preliminary decree for partition was also granted. In further proceedings, the village was divided by metes and bounds and a final decree-Ex. F was passed on October 6, 1936.
(2.) Meanwhile, a creditor of the third defendant obtained a money decree and in execution thereof attached and brought to sale the third defendant's half-share in the 'A' Schedule village. In the auction-sale Subbaiah Chettiar, the plaintiff's brother-in law purchased the property for a sum of Rs. 736 subject to the liability for payment of Rs. 7,000 under the decree in O. S. No. 640 of 1923. Thereafter, the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the 'A' Schedule village and are entitled to recovery the same from the second defendant personally and out of the 'B' Schedule properties. The plaintiffs have claimed damages to the extent of half of the consideration for the sale-deed-Ex. C. minus Rs. 7,000 withdrawn by them. The plaintiffs claimed a further sum of Rs. 500 as Court expenses making a total of Rs. 20,000. The suit was contested on the ground that the Court sale in favour of Subbaiah Chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half-share of the 'A' Schedule village and consequently the plaintiffs did not sustain any loss. The trial Court held that Subbaiah Chettiar-P. W. 1 was benamidar of the plaintiffs who continued to remain in possession of the whole village. The trial Court was, however, of the opinion that though the plaintiffs had, in fact, purchased the third defendant's half-share in the Court sale, they were not bound to do so and they could claim damages on the assumption that third parties had purchased the same. The trial Court accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on 'B' Schedule properties. The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs. 736 paid for the Court sale and the sum of Rs. 500 spent for the defence of O. S. No. 640 of 1923. The High Court accordingly modified the decree of the trial Court and limited the quantum of damages to a sum of Rs. 1,236 and interest at 6 per cent p.a., from the date of the suit.
(3.) The question presented for determination in this appeal is-what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the Indemnity Bond-Ex. B. dated December 19, 1912.;