BAPU SHIVAJI NAIK Vs. KASHIRAM HANMANTRAO GHAG

JUDGEMENT

(1.) [After setting out the facts of the case, his Lordship proceeded :] The position is that the plaintiff having been awarded possession by this Court of the one anna share which he purchased from the defendants as representatives of the branch of Shivajee, and having discovered that the actual chare owned by these defendants out of the one anna is only three pies although he succeeded in establishing his title to sis pies out of that, now seeks to recover either the remaining one half, i.e,, six pies of this takehim, or damages in default. The first Court has held that actual possession cannot be given, as it is with other persons who have successfully asserted it against the defendants and the plaintiff, and there is no appeal on that point. We are, therefore, only concerned whether the present suit for damages will lie, and, if by to what amount of damages is the plaintiff entitled. The learned Counsel for the appellant has argued that no such suit as that brought by the plaintiff will lie, secondly, that the suit is barred by limitation, and, thirdly, that the damages have been incorrectly calculated by the lower appellate Court, So far as damages are concerned, it is argued under the documents on which the plaintiff bases his title he is not entitled to damages; there is no privity of contract between the plaintiff and the defendants who are the original vendors the contract was between the plaintiff and Ketkars who were the first purchasers. Under the sale deed passed by the Ketkars to the plaintiff no right to damages is transferred, nor could any such transfer be made under the Transfer of Pro-perty Act. Secondly, the plaintiff had purported to buy property of which his vendors were not in possession to his knowledge. He had absolved his vendors from any liability for anything done by strangers like the defendants. The breach to his knowledge had already occurred, for no possession had been given by the defendants to the Ketkars. The Ketkars were not in possession themselves, and could not transfer any possession to the plaintiff. The only right that existed in the Ketkars at the time of the transfer to plaintiff eleven years after the original sale deed, during which time from their own documents they received no profits of the property, was a right to sue, which could not be transferred under the Transfer of Property Act. It is further contended that he cannot take the assistance of 8. 55, Clause (2), of the Transfer of Property Act, being a person who had bought after the breach with the knowledge of its having taken place, and hence he gets no rights against the original vendor. The Ketkars themselves did not sue the defendants, and they did not. and could not have, assigned such a right to the plaintiff. Next it is contended that if the plaintiff has a right to sue, whatever article of the Indian Limitation Act is applicable, that right is barred. The covenant was broken as long ago Article 1904, and the present suit is brought in 1925. The plaintiff cannot place himself in a better position than his vendors, the Ketkars, would be. The view of the first Court that it is a continuing cause of action has not been approved of by the lower appellate Court. It is contended that the cause of action is the failure to give possession to Ketkar in 1904, and as Art. 97 of the Indian Limitation Act will apply, the suit is long ago time barred, and any subsequent proceedings taken by the plaintiff are of no avail. And lastly on the question of the amount of damages, it is argued that the plaintiff can only claim the damages which he has actually sustained, and as he only paid Rs. 950 to Ketkar, the measure of damages by reason of his failure to obtain possession of one half of the property purporting to be conveyed cannot exceed half of Rs. 950 as found by the first Court. On behalf of the respondent it is contended that the arguments of the appellants are baaed on a misappreciation of the real basis of the present suit. This is not a suit for possession based on the fact that the defendants failed to give possession to plaintiff's vendors, the Ketkars, It may be that Ketkar could have sued the defendants for damages for failure to give possession, but so far as plaintiff is concerned, his right to possession has been finally determined by the High Court litigation, which ended in Second Appeal No. 839 of 1918. The basis of the present suit is that the defendants purported to transfer a one-anna share in the family property consisting of a khoti takshim to Ketkar, who transferred it to the plaintiff. The plaintiff's right to possession of this one anna share from the defendants has been finally declared by this Court in the judgment in Second Appeal No. 839 of 1918. That judgment is dated March 8, 1920. But when the plaintiff was put in possession or went to take possession, it was discovered that the defendants had not as a matter of fact the one anna share which they purported to convey. The one anna share was owned jointly by the four branches of Dolat, Shivaji, Daji, and Vithoji, each possessing three pies so that all that the defendants had the power to transfer was their three pies. Hence there is a failure of the title which they purported to convey, and the plaintiff is entitled to damages by reason of this defect in their title, and as it so happens that in this present case by reasons which need not be given in detail here, but owing to the adverse possession enjoyed against one of the sharers, the defendants had a title to six pies, i. e., one half, in respect of the other half of the one anna share which they actually had mortgaged and sold as belonging to them they have no title, and therefore they are liable to their vendees in damages by reason of their failure from their contract. The present, it is argued, is not a case in which the vendor warrants possession to be handed over to the vendee and in which damages are to be claimed for failure to hand over possession, but a case in which after possession is handed over it is discovered that the vendor has not got the title which he professes himself to have. Now, so far as regards the right of the plaintiff to the possession of one anna share from the defendants is concerned, I am of opinion that he is concluded by the judgment in Second Appeal No. 839 of 1918. It is not necessary to go into the details of that judgment, but the decree was that the plaintiff is entitled to recover possession of the one anna takshim described as being in the possession of the defendants who were the same $s in the present case, the takshim being decided to be the ancestral one anna and not the takshim which had been purchased from Baloji. Under Section 55, Clause (2), of the Transfer of Property l989 Act 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 he has power to transfer the same, and the benefit of the contract mentioned in this rule shall be annexed, to and shall go with the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. Now, so far as the present case is concerned, Ketkars may be struck out altogether, The Ketkars have never had any possession, nor, for reasons best known to themselves, have they ever taken any steps to enforce their claim as against the present defendants. But, so far as regards the plaintiff, I cannot, in spite of the arguments of the learned Counsel for the appellants, see any reason why he should not be entitled to take advantage of Section 55, ol. (2), of the Transfer of Property Act on account of the breach of warranty by the defendants. It must be supposed that when defendants purported first to mortgage and then to sell the one anna share in the khoti takehim of the village, they contracted with the buyer that that one anna takshim belonged to them exclusively, and that they had power to transfer it, and although the Ketkars themselves may not have endeavoured to enforce the contract, I can see no reason why the subsequent transferee from the Ketkars should not take measures to enforce this contract. The learned pleader for the respondent has referred to the case in Arunachala V/s. Ramasami (1914) I.L.R. 38 Mad. 1171 and Subbaroya v. Rajagopala (1914) I.L.R. 38 Mad. 887. In one of these cases Art. 116 of the Indian Limitation Act was applied, and in another Art. 97. That is a matter which does not make very much difference in the present case, as will be shown hereafter when I come to the question of limitation. The case Subbaroya v. Bajagopala is a case in point for several reasons. In that case A, who had a title to immovable property voidable at the option of C, sold it to B, and put B in possession thereafter. C then brought a suit against A and B, got a decree, and obtained possession thereof in execution. Thereupon the plaintiffs brought that suit to recover the amount which they had paid to the original vendor on the ground that the consideration for the sale failed, and they were deprived of the possession of the property. It was held that such a suit would lie, and that the cause of action arose not on the date of the sale, but on the date of dispossession, It was contended that as there was no express covenant for title and as the plaintiffs took with 1929 full knowledge of the infirmities of title, the principle of caveat emptor applied, and there was no cause of action. Some portion of that argument has been raised in the present appeal as I have already said, i. e., that the plaintiff who was himself a member of the same family as the defendants was aware that the defendants were not the full owners of the one anna share, and was at any rate aware that no possession had been given or could be given to Ketkars and consequently to himself, the reason presumably being that the other branches were in possession of the remaining nine pies. But it was held in that case that in India there is a statutory guarantee for good title unless the same is excluded by the contract of parties, and that the question of the knowledge of the purchaser does not affect the right to be indemnified under the Indian Statute law. This case has been referred to and followed both in Ganapa Putta V/s. Hammad Saiba (1925) I.L.R 49 Bom. 596 s.c. 27 Bom. L.R. 637 and Multanmal v. Budhumal (1920) I.L.R. 45 Bom. 955, s.c. 23 Bom. L.R. 325 in both of which cases Art. 116 of the Indian Limitation Act was applied, Whatever may be the position of Ketkars, the plaintiff has been declared entitled to the possession of the one anna in suit, and having been unable to get possession of that by reason of the infirmity of the title of the original vendor, will be entitled to recover not in this case the purchase money, but damages in lieu of possession under the covenant under Section 55, Clause (2), of the Transfer of Property Act and the ruling in Subbaroya V/s. Raja-gopala. As to the question of limitation it has been contended by the learned Counsel for the appellants that limitation began to run when the covenant was first broken, i.e., when possession was not handed over to the Ketkars, as it should have been immediately on the execution of the sale deed by xko defendants to them in 1904. The present case, however, is not a suit for possession. The suit in which the plaintiff sought possession was the suit of 1917, which ended in this Court in 1920, and in a ease like the present the cause of action will, under the ruling I have already quoted, Subbaroya V/s. Rajagopala, arise when f the imperfection of the defendants title is first declared. It was only subsequent to the plaintiff getting a decree in his favour in this Court and going to take possession that the other co-charers came forward and resisted, and there were miscellaneous proceedings which ended in Exhibit 43, which is an order in the miscellaneous proceedings declaring that the other shares were entitled to three pies each out of the one anna given into the opponent's possession, the opponent being the plaintiff in the present case, The date of that order is September 25, 1922. Whether Art. 97 applies or whether Art. 116 applies is of very minor importance as the suit was brought within three years of the date of that order. The date of the suit is January 6, 1925. Both the learned Counsel for the appellants and the learned pleader for the respondent agree that the case is governed by Art. 97 of the Indian Limitation Act, which applies to a suit for money paid upon an existing consideration which afterwards fails, the period running from the date of the failure, and in this ease the date of the failure must be taken to be when the plaintiff was dispossessed of the one anna share except so far as regards the three pies share which remained with the original vendors, the present defendants. The suit being brought very shortly after this, it is not necessary to consider whether Art. 110 would apply, which gives a longer period. The suit is, therefore, not barred by limitation.

(2.) The sole remaining point is the question of damages. The learned Counsel for the appellants does not press the question of costs. As regards the question of damages, I should like to hear further arguments before I give a final decision in the case, and these may be heard to-morrow.

(3.) After hearing further arguments, the following judgment was delivered on January 25, 1929. <JGN>Baker</JGN> , J.