D KONDAL RAO NAIDU Vs. DHANAKOTI AMMAL

JUDGEMENT

(1.) Prior to the year 1931 the defendant was the owner of a piece of land in Madras which was known as the Koyyatope garden. It was about 4 3/4 cawnies in extent that is to say, about 114 grounds. Plaintiff 2, who throughout in matters referable to this suit has acted on behalf of himself and on behalf of plaintiff 1, knew of this land, and I am Satisfied was well conversant with every detail of it. In the year 1931 some 14 3/4 grounds or thereabouts were sold by the defendant of which 6 grounds were purchased by plaintiff 2 alone by a sale deed of 29 October 1931. In the early part of 1932 the defendant was anxious to raise money upon the balance of the Koyyatope garden either by selling it or by raising money upon mortgage in respect of it and plaintiff 2 was offering to the defendant his assistance to try to further the defendant's objects in regard to this land. He was asked in cross-examination whether he was helping the defendant to sell the land, he stoutly denied it but admitted that a letter dated 15 April 1932, Ex. 2, was his letter and from that it is quite clear that he was doing what I have already indicated in my view he was, and this letter shows that he was well conversant with all matters concerning this property. It would also appear from this letter that it was in contemplation that it would be divided into sites as land was more easily saleable in that way than by larger areas. Sometime at about the period of this letter, Ex. 2, a notice, Ex. A, came into existence which was printed and the defendant's name appears at the foot of it, and para. 1 draws the attention of the public to the balance of the Koyyatope garden which was to be sold and it says that there was remaining to be dealt with 99 grounds. It was suggested that plaintiff 2 either assisted in the drafting or himself drafted this document for the defendant's use. He on the other hand says that he relied upon its contents when he was contemplating himself buying this land later in the year. Whether he did draft it himself I do not know, but I am perfectly satisfied that he placed no reliance in any way upon its contents when he himself was considering purchasing the land. It would seem that his efforts on behalf of the defendant to find either a purchaser or a mortgagee were unsuccessful. But on 25 July 1932, the defendant in fact mortgaged this property for a sum of Rs. 9,000, no doubt being in immediate need of money at that time, and it does not appear that plaintiff 2 brought about this mortgage or that he had the remuneration he hoped to earn which is indicated in his letter, Ex. 2. However, in November 1932 the defendant and plaintiff 2 on behalf of himself and his co-plaintiff were negotiating for the sale of the remaining land all the Koyyatope garden; and as a result of these negotiations the sale deed, Ex. P dated 11 November 1932, was executed by the parties. There was an antecedent document, Ex. B of 10 November 1932 which dealt with this piece of property and oral evidence has been tendered in regard to the price of the land sold and how that price was computed. In the sale deed the price expressed to be paid for this land is Rs. 17,500 and any oral evidence tending to contradict that, in my opinion, is entirely inadmissible. In like manner also is the document Ex. B, Fry L.S. referred to Leggott V/s. Barrett (1880)15 Ch. D. 306 in Palmer V/s. Johnson (1884) 13 Q.B.D. 351 at page 359 and says: When a preliminary contr(sic) is afterwards reduced into a deed and there is any difference between them, the mere written contract is entirely governed by the deed.

(2.) Therefore, so far as the price is concerned, one is confined to the wording of the deed, Ex. F. As I have said, I am quite satisfied that plaintiff 2 was fully conversant with all information concerning the property, the subject of the sale deed. He had bought a few grounds from the whole of the garden, he had visited it on numerous occasions and when he was negotiating and eventually agreed to buy the property, he knew perfectly well exactly what he was buying. The claim by the plaintiffs here is that the defendant agreed to sell to them 99 grounds of land, that she has in fact conveyed only 85 grounds 85 square feet and they have obtained 14 grounds less than they bargained to buy and that they should be compensated for this loss by way of damages for the breach of the covenant contained in the sale deed. There is also a claim in the plaint for some Rs. 350 by way of further damages, but there has been no evidence tendered upon that and indeed no reference has been made to that part of the claim. Plaintiff 2's story is this, that prior to this sale he was informed by the defendant that of the land to be sold, 9 grounds had already been allocated towards the making of a roadway through the property and therefore the actual land which he was buying for effective use, that is to say, in this case to divide into plots to re-sell, was 90 grounds and he based his price at so much aground upon those 90 grounds. He says the price was Rs. 200, namely, Rs. 18,000 in all, That is not the price mentioned in Ex. B nor is it the price mentioned in the sale deed, Ex. F.

(3.) It was never suggested that before this sale this land was laid out or mapped out in plots and the plaintiffs have called a Mr. Doraiswami Pillai, P.W. 2, who is a surveyor employed by the Madras and Southern Maharatta Railway Company, who was called in to survey the land by plaintiff 2 after the purchase and he said in the course of his evidence that he mads a plan, Ex. G, in which the plots are marked out and numbered in order to help the plaintiff to sell the land by plots, in other words, he surveyed it, marked out on the plan the division of the land in plots and also indicated a roadway through this property. He said he found in the area, the subject of Ex, F, a total amount of 85 grounds 85 square feet and that area is exclusive of the piece of land lying between plots 1 and 2 on the northern side which is land dedicated to a temple and which piece of temple land amounts to 3 grounds. Until this land was surveyed, no one could tell how much area would be required for the roadway and the area occupied by the roadway upon the property sold according to Mr. Duraiswami Pillai is something short of 8 grounds. On the easterly border of this land there are three plots which were not included in this sale deed and marked on the plan as sold. Between the larger of these plots and the two smaller ones the continuation of the roadway I have mentioned runs and the three plota together occupy an area of about 15 grounds and the roadway an area of about 1 1/2 grounds. It is rather indicative when one adds this 1 1/2 grounds to the 7 grounds and some odd number of square feet one arrives roughly at the figure of 9 grounds which, plaintiff 2 said, he was told by the defendant had been reserved for the road.