MUHAMMED Vs. GOVARDHANLAL

JUDGEMENT

(1.) The appellant sued to recover the sum of Rs. 3,750/- and interest from the first defendant, who may be referred to as the respondent, and from the estate of his deceased brother Poppattalal, represented in the suit by his widow and children, who are respondents 2 to 4. Poppattalal and the respondent sold a property to the appellant by Ext. P 2 in the year 1119, for a consideration of Rs. 3,750/-. At the time, there was in force, a contract for the sale of the property to Mohammed for Rs. 1,651/- of which they had received Rs. 1000/- in advance. Mohammed sued the respondents and others, including the appellant and Pw. 1 the assignee of the property from the appellant under Ext. P 1, in O. S. 105 of 1121 for specific performance of the contract. On the impleadment of Pw. 1 on the basis of Ext. P. 1, the appellant was removed from the array of parties. In second appeal, specific performance was allowed and the case was remanded for passing a final decree on settlement of the value of improvements, if any, payable to Pw. 1. Before the final decree was passed, the appellant commenced the suit from which this second appeal arises, on the 22nd January, 1957, for refund of the consideration paid under Ext. P 2. Pending this suit, Mohammed took delivery of possession of the property in execution of his decree, under Ext. P 12 delivery receipt dated the 6th December, 1958. It was found in the earlier suit and it was not questioned in this second appeal, that the appellant when he took Ext. P 2, had notice of the contract for sale to Mohammed. This suit was decreed by the Subordinate Judge, but was dismissed in appeal by the District Judge, chiefly on the ground, that the contract for sale did not create an interest in the property in favour of Mohammed, and that title to the property remained with the appellant, because no sale deed has yet been executed in favour of Mohammed as decreed, although as held, the property has been delivered to him in execution.

(2.) In second appeal it was contended for the appellant, that possession of the property having been delivered in execution of the decree obtained by Mohammed, there has been a breach of the covenant for title implied by S.56(2) of the Cochin Transfer of Property Act, which was in force at the time, and which may be referred to as S.55(2) of the Indian Transfer of Property Act, and that the covenant for title so implied is comprehensive to include a covenant for quiet enjoyment. The decided cases on the subject to which my attention has been drawn, are uniformly of the view, that the covenant implied by S.55(2) of the Indian Transfer of Property Act, includes a covenant for quiet enjoyment. The principle deducible from them appears to be that title which is covenanted for under the section includes, depending on the nature of the title conveyed, the right of the vendee to be in possession and enjoyment of the property and so a disturbance of such possession and enjoyment necessarily affects the title conveyed and constitutes a breach or infringement of the covenant implied by the section. I see no reason to differ from the view, that if the right to be in possession and enjoyment is part of the title conveyed, a disturbance of such possession and enjoyment may be deemed to affect the title. That a covenant for title under S.55(2) includes a covenant for quiet enjoyment was ruled by a Full Bench of the Nagpur High Court in Kashirao v. Zabu ( AIR 1932 Nag. 5 ). This was followed in later decisions of that court reported in Ambadas v. Wamanrao ( AIR 1934 Nag. 16 ) and Vishwanath v. Deokabai ( AIR 1948 Nag. 382 ) the latter of which was by a Division Bench. Two other cases taking the same view are Noor Mohomed v. Lilaram (AIR 1928 Sind 61) and Abdul Rahim v. Kadu (AIR 1930 Sind 12). Quite recently, the High Court of Jammu and Kashmir held in Gwasha Lal v. Kartar Singh (AIR 1961 J & K. 66), that the covenant implied in S.55(2) is not only that the vendor had a good title to convey, but also that the vendee should have peaceful and uninterrupted possession of the property. In this court, there is an observation to the contrary in Ramalinga Iyer v. Vasudevan Moosad ( 1957 KLT 588 ) which itself is based on an observation in Mullas Transfer of Property Act, 4th edition, at page 307. The point did not arise in that case and was not decided and the observation of the learned commentator is against the weight of decided cases.

(3.) As stated, the District Judge has found, that there has been a dispossession in execution and that possession has passed to Mohammed. This in itself spells a disturbance of quiet enjoyment of the property by Pw. 1, who is but a transferee of the appellant pending that suit and whom the appellant had undertaken to indemnify in the event of an adverse decision, by express contract in Ext. P 1. The respondent cannot be heard to contend, that because the appellant was struck off the array of parties in that suit when Pw. 1 was impleaded pursuant to Ext. P 1, the decree for specific performance is of no effect, or that the appellant cannot claim consequential reliefs. That decree binds the respondent and Pw. 1 was entitled to call upon the appellant to indemnify him. The appellant has no valid answer to such a claim. Having been a party to the execution proceedings, the respondent cannot also contend, that delivery of possession of the property from Pw. 1 was wrongful or illegal, because a sale deed has not yet been executed in favour of Mohammed pursuant to the decree. It was also argued, that whatever dispossession there had been, was not by title paramount, because the title remained with the appellant or with Pw. 1. In my judgment, once the covenant for quiet enjoyment is infringed, S.55(2) is attracted and the consequences must follow. The conveyance of title under Ext. P 2, was voidable at the option of Mohammed, and that opinion he has exercised.