HANWANT RAI Vs. CHANDI PRASAD

JUDGEMENT

(1.) This is an appeal by one who was arrayed as defendant 1 in the original suit. The suit arose under the following circumstances: The appellant Hanwant Rai sold, on 12 February 1912, a certain amount of property to Mulai and two others for the sum of Rs. 9,000. Kauleshar Rai, who has since died, brought a suit for preemption on 7 September 1912 and obtained a decree, on condition of payment of the entire consideration of the money of Rs. 9,000, on 25 January 1913. He deposited the money that he was required to do under the decree and obtained delivery of possession. The appeal to the High Court was dismissed. Kauleshar and his joint brothers who are plaintiffs 3 and 4 in this action, sold a half share in the property pre-empted to the plaintiffs 1 and 2 of the suit and three others, on 6 August 1916. The sons of Hanwant Rai challenged the sale made by their father, by suit No. 79 of 1919, and, eventually, got a decree for possession from the Court of first instance and also by the Court of appeal. The decree directed that on condition of payment of Rs. 2761/8, the plaintiffs, namely, the sons of Hanwant Rai, would be entitled to recover possession. They deposited the money and obtained delivery of possession on 12 March 1921.

(2.) Having thus been dispossessed of their property the present suit was instituted by the brothers and survivors of Kauleshar Rai and two of the five transferees. It has been found that defendant 1, one of each transferees, has a small interest in the property mortgaged and that the other transferees, never having paid anything towards the sale consideration, did not obtain any interest in the property. The present suit was directed for the recovery of several sums of money, viz., Rs. 6238/8, being the difference between the entire purchase money paid, viz., Rs. 9,000 and the sum. of Rs. 2761/8 paid by the sons as a condition precedent to their recovery of the property, for recovery of Rs. 1,400, being the costs incurred by the plaintiffs in defending the sons suit, Rs. 556/8 being the costs paid by the plaintiffs to the sons under the decrees obtained by them and Rs. 4336/14/6, interest on the sale consideration and other sums claimed. The suit has been decreed in its entirety except for the sum of Rs. 1,400 which represented the amount of costs incurred by the plaintiffs in defending the sons suit. The plaintiffs have not appealed? and as we have said, the present appeal is by Hanwant Rai alone. Two points have been urged before us, namely, (1) the pre- emptor's vendees are not entitled to the benefit of the indemnity clause in the sale-deed executed by Hanwant Rai in favour of Mulai and others, and (2), the suit was barred by limitation.

(3.) We shall take up the first point first. The original sale-deed, namely the one executed by Hanwant in favour of Mulai and others will be found printed at p. 23 of the record. By this sale-deed, Hanwant Rai expressly agreed to indemnify the vendees in case by any act of himself or by any claim of his children or the members of his family, any defect arose in the property. It is conceded that Kauleshar Rai, having succeeded in this suit for pre-emption we substituted for the original vendees, as the vendee. That this was the position of the pre-emptor is fully borne out by the Full Bench case of Gobind Dayal V/s. Inayat Ullah [1885] 7 All. 775, vide the remarks of Mahmud J., at p. 808. It is clear, therefore, that so far as Kauleshar's surviving brothers are concerned, there can be no doubt that the suit is maintainable on the indemnity clause contained in the sale-deed of 12th February 1912. So far as the vendees are concerned, there are two positions. Either, to them the benefit of the contract was transferred or it was not.