Arunachella Aiyar and Others vs T. Ramaswami Iyer and Others

The learned District Judge has reversed the decision of the District Munsiff who granted a decree for money against the 1st defendant

personally. The District Judge held that the suit of the plaintiff (the vendee) so far as it prayed for recovery of compensation from the 1st defendant

(the vendor) for the breach of the covenants for title and possession was barred by limitation, the ''period being three years under Article 62 or 97

of the Limitation Act. The learned District Judge relied on Kovuri Basivi Beddi v. Tallapragada Nagamma ILR (1910) M. 39 in support of his

decision.

It is contended before us that as the sale-deed in this case was executed in 1904 long after the Transfer of Property Act came into force, the

proper article to be applied in respect of a suit claiming compensation for breach of an express or implied covenant of title and quiet enjoyment is

Article 116 which allows a period of six years. We think that this contention must be upheld. It has been decided in a series of cases beginning

from 1889 (See the two cases reported in Kasturi Naicken v. Venkatasubba Mudali (1889) I M.L.J. 162 and Narayana Reddi v. Padarama

Reddi (1891) 1 M.L.J. 479 that in all registered conveyances executed after the Transfer of Property Act come into force, a covenant for title is

implied by Section 55 Clause 2 of that Act, that the registered conveyance should be read as if it expressly embodied that covenant and that the

breach of that covenant is the breach of a contract in writing registered within the meaning of Article 116.

We need refer only to a few of the later cases namely those in Chidambaram Pillai v. Swethasami Thevar (1904) 15 M.L.J. 396 The Zamindar

of Vizianagaram v. Behara Surya Narayana Pantalu ILR (1901) M. 587 Nageswara Row) v. Sambasiva Row (1911) M.W.N. 361 Kirshnan

Nambiar v. Kannen ILR (1897) M. 8 and Unichaman v. Ahmed Kuthi Kyai ILR (1897) M. 242. It must however be admitted that the case in

Kovvuri Basivi Reddi v. Tallapragada Nagamma ILR (1910) M. 39 seems to throw some doubt on the decision in Krishnan Nambiar v. Kantian

ILR (1897) M. 8 which follows the current of the earlier decisions. The reasoning in Kovvur Basivi Reddi v. Tallapragada Nagamma ILR (1910)

M. 39 is not quite clear and one of the two learned Judges who took part in it was also a party to the later decision which expressly followed the

current pf the earlier decisions (see the subsequent case reported in Nageswara Row v. Sambasiva Row (1911) M.W.N. 361 distinguishing the

case in Kovvuri Basivi Raddi v. Tallapragada Nagamma ILR (1910) M. 39 as "" not in point."") In Kovvuri Basivi Reddi v. Tallapragada Nagamma

ILR (1910) M. 39 the correctness of the decision in Krishnan Nambiar v. Kannan ILR (1897) M. 8 was doubted on the strength of the Privy

Council ruling in Hanumankamat v. Hanuman Mandur (1891) ILR 19 C. 123 (P.C.) wherein their Lordships held that in the case of a conveyance

executed in 1879 (before the Transfer of Property Act came into force) a suit for compensation for failure of consideration (that is, for the

recovery of the purchase money paid to the vendor) through the failure of the vendee to obtain possession of the land sold fell under Article 97(3

years rule) that the date of the cause of action was the date of the obstruction by the vendor''s co-parceners. Their Lordships had no occasion to

consider the effect of Section 55, Clause (2) of the Transfer of Property Act on a registered conveyance executed after the date of that Act. That

case is therefore not an authority for the proposition that to a suit brought on the covenant added by the statute law to all registered conveyances

executed after the Transfer of Property Act came into force Article 116 did not apply but only Article 62 or 97. In Unichamari v. Ahmed

Kuthihkayi ILR (1807) M. 242 a similar argument was addressed to a Bench of this Court namely that Article 97 applied to such a suit because

the Bombay High Court held that view in Sawaba Khandapa v. Apaji Jotirow ILR (1887) B. 475. But as a Division Bench of this Court point out

in Unichaman v. Ahmed Kuthihkayi ILR (1807) M. 242 the Transfer of Property Act was not in force in Bombay when that decision in Sawaba

Khandapa v. Abaji Jotirow ILR (1887) B. 475 was given. This distinction seems not to have been in the minds of the learned Judges who decided

ILR 35 M. 39. We might add that Benson J, who took part in ILR 35 M. 39 was also a party to the prior case in ILR 21 M. 242. Next it was

contended that Bakewell J. doubted the correctness of ILR 21 M. 8 in his judgment in Ramanatha Aiyar v. Ozahoor Pathiriseri Raman Nambudri

(1913) M.W.N. 1029. In the first place the observation is obiter. In the second place (with the greatest respect) we find difficulty in following the

observation of the learned Judge that the Transfer of Property Act ""may be construed as having annexed the statutory agreement"" (that is the

contract embodying the covenant for title and other covenants) to the contractof sale and not to the deed of conveyance itself. As said in Dart''s

Vendors and Purchasers Vol. I. p. 567, these covenants are by the English Conveyancing Act 1881, Section 7 "" implied in every conveyance"" and

we do not see why they should be held under the Transfer of Property Act to be attached only to the contract of sale and not to the conveyance.

The other learned Judge Miller J. was prepared to follow ILR 21 M. 8. The Respondent''s Vakil''s argument that a covenant for title cannot be

implied where the buyer knows the defect of title is opposed to the recent decision by Seshagiri Aiyar J. in Bubbaraya Redaiar v. Rajagopala

Reddiar (1914) M.W.N. 376 with which decision we agree.

The learned District Judge has decided the case only on the preliminary ground of limitation raised in the 9th ground of the appeal memorandum

presented to the District Judge. We are unable to agree with him in that finding and if Article 116 applies, as we hold it to apply it is not denied that

the suit is not barred. The question whether plaintiff can be given a decree for recovery of the money due under the original hypothecation bond

has also not been decided (see Order 41, Rule 33 of the CPC and the wide powers of the Appellate Court).

We therefore reverse the District Judge''s decision and remand the case for the disposal of the appeal preferred to the District Court on the

other points arising in the case.

Costs will abide the result.