KALI CHARAN Vs. DURGA KUNWAR

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff claims damages for breach of covenants for title contained in a sale deed, dated the 12th of October, 1889. The court below has given the plaintiff a decree for Rs. 2,900, being considerably less than the amount claimed. At the time of the alleged sale the property mentioned in the plaint, together with other property was in the hands of the Court of Wards, and the sale deed was executed by the Court of Wards. It has not been contended, and in our opinion could not be contended, that the persons entitled to the property sold were not liable upon foot of the covenants given by the Court of Wards, assuming that there was a breach. The sale deed contained the ordinary covenants for title, including a covenant that the vendors took upon themselves "the responsibility that the property should be. free from all debts, claims and liabilities".

(2.) In the present suit we are concerned with a village called Mirpur Harriapur, which was one of the items of property comprised in the deed already mentioned. The title to this village briefly is as follows: One Jaswant Singh and others were the owners of it. Jaswant Singh mortgaged it to Brij Kishore, who brought a suit for sale and obtained a decree. Brij Kishore then died his widow Durga Dei continued the proceedings, had the property sold, and purchased it herself. On the 9th of December 1879, Durga Dei sold it to Durga Kunwar. Durga Kunwar was the widow of Lakhan Singh, who had a brother, Har Singh, and it is admitted that the two brothers were joint. Some time after the sale by the Court of Wards claims were made to the property, the subject matter of the sale. The claimants alleged that they were the reversioners to the estate of Brij Kishore; that Durga Dei as his widow, in the absence of legal necessity, had no power or authority to sell property to Durga Kunwar, and that upon Durga Dei s death, which took place on the 8th of June, 1905, they became entitled to the property.

(3.) It is an admitted fact that a considerable amount of litigation took place with respect to the claim so made, with the result that in respect of one of the villages sold by Durga Dei, the claim of one Kishan Chand, one of the claimants, was decreed. We mention this to show that there was a serious claim made against the vendees under the sale deed of the Court of Wards. In due course a claim was made against Kali Charan, the purchaser from the Court of Wards, in respect of the village Mirpur Harriapur. The plaintiff at once sent notice to Durga Kunwar, setting forth clearly and distinctly the nature of the claim that had been made, called attention to the success of Kishan Chand in the other litigation, and required Durga Kunwar to give such information as would enable Kali Charan to defend the suit which he anticipated would be brought against him. No attention of any kind was paid to this notice. Subsequently Kali Charan compromised with the claimants and paid to Kishan Chand a sum of Rs. 4,750. He gave notice of this compromise to Durga Kunwar, but again no notice was taken and then the present suit was instituted.