KALYANI AMMAL Vs. EZHUMALAI NATTAR

JUDGEMENT

(1.) The plaintiff, the decision in whose favour in the Court of first instance has been reversed on appeal raises an interesting question of law and I shall first set out the facts not in dispute. The suit is one for recovery of damages on breach of covenant of title and quiet enjoyment in relation to a purchase of certain immovable property by the plaintiff from one Thayanayaki Ammal. The property had originally belonged to a certain Kuppa Nattar, the maternal grandfather of the contesting respondent, the third defendant in the case. This Kuppa Nattar had two daughters, the said Thayanayaki Ammal and Chinnakolandai, mother of the third defendant. On 6th May, 1927, he settled the property of his aforesaid daughters for their life, the present third defendant to take the property absolutely after their lifetime. In 1930 Kuppa Nattar alleging dissatisfaction with his daughters' treatment of himself and his wife, purported to revoke the settlement deed but later conveyed the property in favour of his daughter Thayanayaki for a consideration of Rs. 400. Thayanayaki in her turn sold the property to the plaintiff under the registered sale deed dated 2nd March, 1947 for a consideration of Rs. 2,500. Exhibit A-1 is the registration copy of the deed. On Chinnakolandai's death the present third defendant instituted the suit O.S. No. 93 of 1951 on the file of the District Munsif's Court, Chidambaram, impugning the validity of the revocation deed and the subsequent transfers and claiming possession of the property. The present plaintiff was the first defendant in that suit. It was decided therein that the revocation was invalid and did not affect the third defendant's vested rights under the settlement deed. But it was held that the 3rd defendant could claim possession of the suit property only after the lifetime of Thayanayaki, the plaintiff's vendor. The present plaintiff had then contended that certain improvement had been effected by her and this was evaluated at Rs. 800. Thayanayaki Ammal died on 4th May, 1957 and thereupon the present third defendant as the remainderman filed the suit O.S. No. 158 of 1957 on the file of the Court of the District Munsif, Chidambaram,, for possession of the suit property impleading the present plaintiff as the sole defendant in the suit. This suit ended in a decree by consent on 19th June, 1958. It was provided by the decree that the third defendant should before taking possession of the property personally, and charged on the suit property pay the present plaintiff a sum of Rs. 1,350 inclusive of the sum of Rs. 800 found as the value of improvements in O.S. No. 93 of 1951. Till payment of this amount the plaintiff could enjoy the suit properties but should vacate and deliver vacant possession on receipt of the said sum of Rs. 1,350. There is no dispute that the 3rd defendant deposited the amount of Rs. 1,350 in Court as provided for in the compromise and that he took possession of the suit property from the plaintiff on 12th December, 1958. Within ten days of losing possession of the suit property on 22nd December, 1958, the plaintiff filed the suit out of which the present second appeal arises claiming damages for breach of covenant of title and quiet enjoyment against the defendants in the suit as heirs and legal representatives of Thayanayaki Ammal. Besides the third defendant two other persons were impleaded, defendants 1 and 2 as person in possession of the property of Thayanayaki Ammal. Several defences were raised against the claim, inter alia, res judicata, estoppel and limitation and there was also a counter-claim. The property was subject to a mortgage dated nth September, 1947 in favour of Thayanayaki Ammal herself for a sum of Rs. 1,000. The third defendant counter claimed for the amounts due under this mortgage with interest till 12th December, 1958, paying the necessary Court-fee. The trial Court dismissed the suit as regards defendants 1 and 2 as they were not heirs of Thayanayaki Ammal and were not in possession of any of her assets. The third defendant claimed himself to be heir to the deceased. At the trial, it came out that the third defendant had a sister Valambal who also would be an heir. She was subsequently impleaded as a respondent (4th defendant) in the appellate Court and she has remained ex parte. The trial Court assessed the market value of the property which the plaintiff purchased and lost at Rs. 4,000 on the date the plaintiff lost possession. As the plaintiff had received a sum of Rs. 1,350 as and for the value of improvements to the property, the trial Court passed a decree for damages in favour of the plaintiff for a sum of Rs. 2,650 against the estate of Thayanayaki Ammal in the hands of the third defendant. The trial Court rejected the counter-claim holding that no counter-claim was tenable on the facts of the case pointing out that the personal remedy on the mortgage had become barred. On appeal by the third defendant, the learned Subordinate Judge has construed the earlier compromise decree in O.S. No. 158 of 1957 between the plaintiff and the third defendant, Exhibit A-2, as in full settlement of all claims of the plaintiff. In the circumstances, while finding against the pleas of res judicata estoppel by judgment and limitation reasserted by the third defendant, plaintiff was held estopped by conduct from claiming any damages, the plaintiff having taken Rs. 1,350 under the settlement in O.S. No. 158 of 1957.

(2.) On the contentions of Counsel before me, three questions arise for consideration in the appeal (1) the question whether the earlier settlement in O.S. No. 158 of 1957 precluded the plaintiff from agitating her claim in damages for breach of covenant of title and quiet enjoyment, (2) the contention that as the plaintiff lost her right to possession only by the death of her covenantor, the covenant of quite enjoyment also came to an end; and (3) the question as to the quantum of damages which the plaintiff is entitled to, the property having been subject to an encumbrance at the time of the dispossession in favour of the covenantor herself. I may at once state that there is no substance in the first contention. The suit O.S. No. 1580 of 1957 was a suit by the present third defendant as the remainderman and not as representing the estate of the deceased. True, it is recited in the memorandum of compromise that over and above the sum of Rs. 800 provided for as the value of the improvements in O.S. No. 93 of 1951, the plaintiff therein, the present third defendant, was to pay the present plaintiff, the defendant therein, a further sum of Rs. 330 in respect of the claim over the suit property then put forward by her. The lower appellate Court has placed considerable reliance for its construction of the compromise on a term-therein that excepting the right to the sum of Rs. 1,350 the present plaintiff shall not have any other over the suit property. There is absolutely nothing in the compromise even impliedly suggesting that the claim for damages for breach of covenants under the sale deed was also subject of the settlement. Certainly the claim for damages for breach of covenant and quiet enjoyment is not a claim over the property the subject of that suit.

(3.) On the death of the vendor, her title over the property had become extinguished and equally all rights and interests of the vendee over the property. The term in question, in the compromise is only a specific re-affirmation of this position, the only possible claim relating to improvements having been settled. In fact, it is this term negativing all interests and rights over the property that gives the present plaintiff her cause of action to their damages. It is a coincidence that the remainderman is also a legal representative of the life tenant who had attempted to convey absolute interest in the property. The present suit is laid against the third defendant not as a remainderman who has taken possession of the suit property but as heir of Thayanayaki Ammal who has inherited her other properties. The learned. Subordinate Judge himself remarks that the plaintiff had not specifically given up her rights to claim damages in respect of her eventual dispossession. It must be noted that the cause of action for the present suit is the dispossession and the dispossession was on 12th December, 1958. Now if notwithstanding the compromise decree, the third defendant had not deposited the sum of Rs. 1,350 and not taken possession, the present plaintiff would have had no cause of action on the basis of the covenant of quiet enjoyment. It is the loss of the properties and all rights therein that has given her the cause of action to maintain the suit against the heir of her vendor. No doubt it would have been open to the third defendant in his suit for possession to have settled this claim also, in the particular circumstances, as he happened to be an heir of the deceased. But that has not been the subject of the compromise. Admittedly, the claim for damages was not mooted in those proceedings. Nor any case of representation to base an estoppel thereon has been made out. There is no evidence of any representation by the present plaintiff that on payment of Rs. 1,350 she would make no claim against the estate of Thayanayaki Ammal for damages.