SAYU MOHAMMED ABDULLA Vs. NEELAKANTAN KRISHNAN

JUDGEMENT

(1.) This appeal is by the plaintiffs and it arises out of a suit instituted by them as vendees of immovable property against the vendor for damages for fraudulent misrepresentation as to title to the property sold and also for enforcement of a covenant of indemnity contained in the sale deed.

(2.) The property in question which is scheduled as item 1 to the plaint is a garden land 78 cents in extent in Edava Pakuthy in Chirayinkil Taluk Along with other properties it was the subject-matter of a partition suit O. S. 705 of 1105 on the file of the Attingal Munsiff's Court, among the members of an Ezhava tarwad, who are represented in this suit as defendants 1 to 34. Defendants 29 to 34 who were the plaintiffs in that suit, claimed the property to be common tarwad property and as such available for partition while the 1st defendant set up the exclusive title of his sakha comprising the defendants 1 to 3. According to the 1st defendant it was an acquisition of Kurumpa Nachi whom he put forward as the sister of the grand-mother of his mother and had devolved in due course of succession on his sakha alone. Pending that suit O. S. 705, the first defendant, his mother Chirutha Kali and uncle Raman Sankaran sold the property under Ext. B sale deed dated 4-5-1105 to Navoor Pathummal, deceased and she was accordingly made the 32nd defendant in that suit. The issue as to title which so arose in O. S. 705 was disposed of by the trial court in favour of the common tarwad. Vide Ext. I judgment dated 29-7-1110. The District Judge in appeal held to the contrary and in favour of the 1st defendant's sakha but in second appeal, S. A. 176 of 1114 the High Court restored the decision of the Munsiff. Vide Ext. II, judgment dated 8-4-1119. By the final decree in the partition suit, 6-3/8 cents alone of item 1 was allotted towards the share of the vendors under Ext. B and directions were given for the rest of the item from Navoor Pathummal. The plaint averred that Ext. B sale was taken in the name of Navoor Pathummal for and on behalf of the Muslim Marumakkathayam tarwad of the plaintiffs 1 and 2 and defendants 35 to 48 to which she belonged and that she was persuaded to purchase the property under Ext. B by false and fraudulent misrepresentation as to title made by the vendors. The plaint went on to say that as a result of the ultimate decision in the partition suit, item 1 except to the extent of 6-3/8 cents was in danger of being lost to the plaintiff's tarwad and that the defendants 1 to 34 were therefore bound to answer for all the plaintiffs' loss of the balance of item 1 as estimated on the basis of the total sale price of Rs. 3,900 and the value of improvements of Rs. 1.500 and also charged on such balance. The cause of action for the suit was claimed to arise on 8-4-1109 the date of Ext. II judgment and on 20-9-1122 the date of the plaintiff's knowledge about the initiation by the defendants 29 to 34 of delivery proceedings in execution of the final decree in the partition suit. It may be added that delivery of the balance of item 1 actually took place in or about August 1954 during the pendency of this suit but no amendment of the plaint was sought for on that account. Item 2 was scheduled to the plaint, as having been acquired by the 1st defendant with the help of the sale consideration under Ext. B and liable, in consequence, to answer the plaint claim. The suit was laid on 10-6-1950 corresponding to 27-10-1125.

(3.) The suit was resisted by the defendants 1 and 29 to 34 by separate written statements. The 1st defendant mainly contended that Ext. B sale deed was executed in the bona fide belief of the vendors as to their title and there was really no fraudulent misrepresentation by them in the matter as alleged. He denied that the warranty of title and the covenant for indemnity as contained in Ext. B furnished any or sufficient cause of action for the plaintiffs' claim for damages, as sued for. He further pleaded that the suit having been filed more than six years after the date of Ext. I judgment of the Munsiff in O. S. 705 declaring absence of title in the vendors, was barred by limitation. He also disclaimed the liability of item 2 to any extent. Defendants 29 to 34 besides reiterating the contentions raised by the 1st defendant repudiated the liability of the balance of item 1 in their hands for the damages claimed or at all. They further denied that the plaintiffs had effected any improvements in the property.