MAHOMED ALI SHERIFF Vs. BUDHARAJU VENKATAPATHI RAJU

JUDGEMENT

(1.) Upon the construction of Ex. A which is a deed of sale in favour of the 1st Plaintiff (1st Appellant) by the father of Defendants 1 to 3 the Subordinate Judge came to the conclusion that, it did not contain any express warranty of title and that the warranty implied by Section 55, Clause 2 of Transfer of Property Act was negatived by special contract to the contrary embodied in Ex. A. Ex. A recites " it has been settled previously to dispose of by sale to you for Rs. 2,800 my right, title and interest in the marginally noted 30 acres 59 cents of land." Then it sets out the title of the vendor beginning with a deed of sale of 16th March, 1875,exe- cuted by D, Suryanarayanaraju s wife Venkataramanaiah alias Ramaniah in favour of Chinakondaraju and next the sale, dated 21st February, 1878, by Chinakondaraju to Jagannatha Raju who sold the property to the vendor under Ex. A by a deed, dated 30th August, 1878. It goes on to state that the vendee and the others had been in possession of the land under a cowle granted by the vendor and that " you, the vendee shall henceforward be enjoying the same hereditarily and with right of alienation by gift, sale or otherwise as you please. Removing the hindrances to this arising from my agnates or king or neighbour I shall see that the sale is given effect to in your favour without any obstruction. We understand that the phrase " free of obstruction arising from agnates or king or neighbour or others" is the usual covenant for title used in deeds of sale in Telugu districts. But it is pointed out that if that phrase imports a general covenant for title, we must hold that the omission of the word " others" was deliberate and meant to qualify that covenant. It is not possible to accept this contention unless the phrase was used as an absolute covenant for title it is difficult to understand what else could have been meant by providing against obstruction from vendor s agnates, the vendor being a male or from his neighbour. In our opinion the omission of the word " others " can make no difference in this connection. And this is made quite clear from the next clause " I shall see that the sale is given effect to in your favour without any obstruction."

(2.) The argument which found favour with the lower court was based on the fact that the previous deeds of sale of this land including the one by Suryanarayanaraju s widow are specifically recited and also on the statement in Ex. A that the " right, title and interest " of the vendor in the land was intended to be sold. As regards the last that must be construed with reference to the subject matter of the conveyance. What the vendor clearly wanted to convey was the fee simple of the land to which he claimed to be entitled and the phrase "right, title and interest" does not mean right title and interest if any and the phrase could not be taken to protect a vendor who it turns out had no saleable interest at all in the property. The recital of the previous transactions which formed the links in the chain of the vendor s title has not the effect in law of warning the vendee that the vendor had no title or that he had a title liable to be defeated because of some hidden defect so as to exempt the vendor from all liability. We think Ex. A contains an express covenant for title. Even supposing that it does not, still a contract on the part of the seller would be imported by virtue of Section 55, Clause (2) of the Transfer of Property Act to the effect that the interest which he professed to transfer to the buyer subsisted and that he had power to transfer the same. We have already indicated that upon the terms of the document the Subordinate Judge was wrong in holding that a contract to the contrary could be gathered from the terms of Ex. A within the meaning ot Section 55.

(3.) The law is well settled that the effect of a covenant for title is not to be got rid of except by the vendor indicating to the purchaser by use of clear and unambiguous expressions that he did not mean to guarantee that he had a good title to the property and was entitled to convey the same. It will be sufficient in this connection to refer to the case of Section v. Maph 68 E.R. 859 where at p. 862 Knight Bruce V.C. says " when the vendor sells property under stipulations which are against common right and place the purchaser in a position less advantageous than that in which he otherwise would be, it is incumbent on the vendor to express himself with reasonable clearness ; if he uses expressions reasonably capable of misconstruction, if he uses ambiguous words the purchaser may generally construe them in the manner most advantageous to himself " and to the case of Page v. Midland Railway Co. (1894) L.R. 1 Ch. 11 at p. 20 where it is stated "If a vendor does not intend that his covenant for title shall extend to defects disclosed to the purchaser whether on the face of the deed or aliunde the vendor must take care to word his covenant, so as in terms to cover such defects, or he must insert some clause in the deed clearly by explaining and controlling his covenant. This is in accordance with the ordinary rules of construction and with fair dealing.... There is no authority for not giving effect to the clear and express words of a vendor s covenant for title simply because a defect covered by them was disclosed by a recital in the conveyance." The same rule of law is laid down in Raghava Aiyangar v. Samachariar (1918) I.L.W. 8 and Digambar Das v. Srimathi Nishibala Debi (1910) 15 C.W.N. 655 at 659.