GOPALAN NAIR Vs. ABRAHAM MATHEWS

JUDGEMENT

(1.) In this Second Appeal by the defendant the main substantial questions of law raised are (i) whether, after the execution of the sale deed, the agreement for sale entered into between the parties has got any relevancy with respect to the consideration involved in the sale and (ii) whether, long after such sale, the vendee could raise a question as to absence of title of the vendor to claim damages.

(2.) The appellant / defendant and the respondent / plaintiff entered into Ext. A1 agreement for sale of 10 to 12 cents of property. The sale price agreed was Rs.15,000/- per cent. It is an admitted case that this agreement of sale matured into sale by two documents whereby the appellant conveyed title of 6 cents each to the respondent. In both the documents, it is an admitted case that the sale consideration revealed was only Rs.40,000/- each for the plots of six cents. Later, as revealed by the case set up in the plaint there was notice by the revenue authorities served on the respondent / plaintiff that the said 12 cents included purambokku property as well. From this the respondent / plaintiff understood that the appellant / defendant did not have the full title over the property conveyed. This resulted in a suit for damages. It was dismissed by the Trial Court. The plaintiff carried the matter in appeal. The Appellate Court partly allowed the appeal finding that the appellant / defendant did not have title over 0.648 cents of land conveyed in favour of the respondent / plaintiff. Accordingly, an amount of Rs.9720/- was awarded as damages, taking the sale price as reflected in Ext. A1 agreement. This decree is under challenge in the second appeal raising the substantial questions of law as mentioned above.

(3.) In the absence of conclusive evidence as to the sale price paid and received, even if there was deficiency of title, so far as the vendor is concerned, the damages cannot be awarded reckoning the sale price mentioned in the agreement. Damages shall be payable only going by the sale price. It is admitted that the sale deed revealed sale price of Rs.40,000/- for six cents. But at the same time, the contention of the appellant / defendant that the vendee cannot raise a dispute regarding the absence of title of the vendor after the sale is concluded, cannot any more be countenanced. Going by S.55(2) of the Transfer of Property Act, a statutory covenant has to be read into every sale deed that the vendor did have the title to the property. Therefore, it cannot be presumed that the vendee had noticed the absence of the title so far as the vendor is concerned. It has been held by this Court in the decision reported in Gouri Amma v. Kesavan, 1985 KHC 190 : AIR 1986 Ker. 30 : 1985 KLN SN 32 : 1986 (1) Civ. LJ 116 : 1986 (2) Cur. CC 978 : 1985 KLT 862 , as follows: