RANGANATHAN Vs. CHELLAMMAL

JUDGEMENT

(1.) A. s. no. 795 of 1977.'this is an appeal by the defendants in o. s. no. 13 of 1976 on the file of the sub court, cuddalore, against whom the suit instituted by chellammal, the respondent, for recovery of rs. 15,000 by way of damages and for a charge over the plaint b schedule properties and for mesne profits realised from the b schedule properties to be determined under order 20, rule 20, civil procedure code, was decreed for a sum of rs. 10,700 with a charge over the plaint b schedule properties for the amount decreed. in other respects, the suit was dismissed. the respondent was awarded proportionate costs from the defendants.

(2.) THE properties more fully described in schedule a annexed to THE plaint belonged originally to veeraswami iyer. on 13th december, 1920, veeraswami iyer executed exhibit b-1, a settlement deed, giving a life estate to lakshmi ammal and narayanaswami iyer and THE vested remainder to THE sons of narayanaswami iyer, and in THE absence of sons, to THE daughters of narayanaswami iyer. though each of THEm was entitled only to a life estate, lakshmi ammal and narayanaswami iyer sold THE a schedule property to eswarakrishna iyer by executing exhibit a-1 dated 11th december, 1929, as if THEy were absolutely entitled to THE property and without disclosing THE fact that THEy were entitled only to a life estate. however, by THE same document, viz. , a-1, THEy had given THE b schedule property as security to indemnify THE vendee in respect of any loss he may sustain in case of any breach in THE warranty of title to THE A Schedule property. Under Exhibit A-2, dated 17th June, 1935, Veeraswami Iyer, THE settlor, had purchased THE A schedule property from Eswarakrishna Iyer, for a consideration of Rs. 400 only, though Eswarakrishna Iyer himself had purchased THE property for Rs. 1,000. Though THEre is no evidence to show as to what happened between 1929 and 1935, THE fact that Eswarakrishna Iyer sold THE plaint A schedule property for Rs. 400 only, would show that he was anxious to get rid of THE property on his coming to know of THE defect in THE title of his vendors. It is also highly probable that Veeraswami Iyer himself purchased THE property in order to avert any litigation by Eswarakrishna Iyer. Veeraswami Iyer, who was THE author of exhibit A-1, knew that what he settled on Lakshmi Ammal and Narayanaswami Iyer was only a life estate and what Eswarakrishna Iyer purchased was only THE right of THE vendors under Exhibit A-1, viz. , THE life estate of each of vendors. However, he executed Exhibit A-3 dated 18th October, 1937, purporting to settle THE A schedule property on his son Ramamoorthi Iyer absolutely as if THEre was no defect in his title under Exhibit A-2. Ramamoorthi Iyer, son of Veeraswami iyer, who should have been fully aware of THE defect in title of his faTHEr as well as of himself, sold THE A schedule property to THE plaintiff under Exhibit A-4, dated 28th November, 1951 for a consideration of Rs. 4,000 as if he and his minor son were entitled to an absolute estate in THE property. The plaintiff in her turn sold THE A schedule property to one Mannangatti Ammal under a deed dated 19th August, 1964.

(3.) SECTION 55 (2) of the Transfer of Property Act, which lays down that 'the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same' also makes it abundantly clear that, 'the benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof, from time to time, vested.' Therefore, the benefit of the covenant for title runs with the land and is enforceable by the subsequent purchasers of the land, and if the buyer resells to several purchasers, each of his purchasers is entitled to sue on the covenant in respect of his part. In Guruswami Gounder v. Santhappa1, Veeraswami J. , (as he then was) has observed that, 'section 55 (2) of the Transfer of Property Act clearly provides that the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. The section goes further to provide that the benefit of such a contract is annexed to and shall go with the interest of the transferee as such and is enforceable by every person in whom that interest of part or it is vested. When the lower appellate Court observed that there was no privity of contract between the first defendant and the appellant as purchaser from the 12th defendant, it apparently overlooked this statutory provision. In one sense one may say that strictly speaking there is no privity of contract between the seller and the transferee from a buyer of immovable property but there is clearly by reason of section 55 (2) of the Act, privity of estate between such persons which will enable the transferee from a purchaser to sue for damages in breach of a deemed covenant of title.'