MT NANHI Vs. MTKETKI

JUDGEMENT

(1.) This is an appeal by the defendant and arises out of a suit brought by the plaintiff respondent for damages for breach of a covenant, alleged to be express and, in the alternative, said to be in a sale-deed date 22 March, 1912, execute by the defendant appellant in favour of the plaintiff-respondent for a sum of Rs. 2,000 conveying certain house property. The Court of first instance dismissed the suit. The lower appellate Court has decreed the plaintiffs claim to a smaller amount than that claimed by the plaintiff.

(2.) The deed recites that the vendor has place the vendee in possession of the entire vended property and that part of the property was the subject of a deed of gift in favour of one Jwala Prasad, but that the vendor subsequently cancelled it by executing a deed of annulment. The implication of these recitals is that the vendor is the absolute owner of the property in spite of the infructuous deed of gift referred to. One of the clauses of the sale-deed provided that if, God forbid, the whole of the property transferred, or any portion thereof, goes out of the possession of the vendee on account of any transfer or incumbrance, etc., by her, or by her ancestors, or by any person who claims to be the owner of the property, on the basis of any law, custom or Shastra, the vendee shall have a right to recover his consideration money along with damages and costs from the property transferred or from other movaable or immovable property of hers.

(3.) The vendee was resisted in taking possession of the property to which the dead of gift and the deed of annulment, already referred to, related. The vendee and the vendor both instituted, proceedings for recovery of the property covered by them; but they were unsuccessful. Thereupon, the plaintiff-respondent brought the present suit for recovery of a proportionate amount of the consideration paid under the sale-deed.