KALKA SINGH Vs. NAMDAR KHAN

JUDGEMENT

(1.) This is an application for the revision of a decree and order of the Judge of the Small Cause Court of Jaunpur, dismissing the suit of the plaintiff applicant for compensation for dispossession of the property purchased from the defendant. The circumstances are briefly that the defendant had purchased some immovable property from a Hindu widow, who was in need of money for the purposes of pilgrimage, and that the defendant thereafter sold the property to the plaintiff. It has been found by the Court below and indeed admitted by the plaintiff that at "the time of his purchase from the defendant, his knowledge of the defendant's title to the property was just as extensive as that of the defendant himself, that is to say, he knew that the property had been purchased from a Hindu widow who had a limited interest, and that the widow could not legally transfer the property except for legal necessity, but it appears that both, parties to the contract for sale were doubtful of one point, viz., whether the sale by the widow to the defendant was for legal necessity. The sale-deed by which the defendant transferred the property to the plaintiff purports to transfer absolute ownership in the property. The plaintiff was in possession of the property from 1924 when he purchased it from the defendant until 1930 when he was dispossessed by a reversioner. The trial Court has however dismissed the plaintiff's suit for compensation on the ground that he had notice that his seller's interest was a limited one. The present application is made on the ground that, whether the plaintiff had notice or not, he has a statutory right under Clause (2), Section 55, T.P. Act, the essential part of which is to the following effect: 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 lie has power to transfer the same.

(2.) In the sale-deed the seller undoubtedly professes to transfer to the buyer the absolute ownership of the property and, according to the argument for the applicant, he must be made to compensate the buyer now that his title has failed. A somewhat similar question is considered in the case of Muhammad Ibrahim, v. Nakched Ram (1909) 6 I.C. 890 where it was found by a Bench of this Court that the document of transfer in clear and unambiguous terms transferred to the plaintiff the full rights of ownership...free from all encumbrances, and that while certain references in the document might have been sufficient to put the purchaser on his guard, these would only operate to save the vendor from a charge of fraud, they were quite insufficient to relieve the vendor from the obligation imposed upon him by Section 55(2), T.P. Act.

(3.) In that case, it may be remarked, the lower appellate Court had held that the plaintiff either knew or ought to have known exactly what he was buying and that as he had knowingly bought a defective title the suit ought to be dismissed. But this decision was reversed by the High Court in appeal for the reasons I have quoted above. In a more recent decision on a similar point, a Bench of this Court in the case of Nawal Kishore V/s. Sarju Ram Sahu following the decision in the case of Mohammad Ibrahim V/s. Nakched Ram (1909) 6 I.C. 890 and also a decision of the Calcutta High Court, held that unless the vendor's liability as imposed by Section 55(2), T.P. Act, was excluded by express covenant, his liability would be deemed to subsist notwithstanding the fact that the vendee may have some idea as to the defect in the title of the vendor. In the Calcutta case it was stated that the vendee was entitled to rely on the assurance of title on the part of the vendor although he himself may have had some doubt as to it. We are of opinion that the view taken in Calcutta and in this Court quoted above is the correct view. The liability of the vendor clearly exists.