Bibi Zainab vs Bibi Azizunnissa

Courtney-Terrell, C.J.—This is an appeal from the judgment of the Subordinate Judge modifying the decision of the Munsif. The defendant is the appellant. The facts are very simple. The defendant party sold to the plaintiff by a kabala, dated 3rd February 1923 a parcel of land with a warranty that if the purchaser were dispossessed from the whole or any part of the property, or if the purchaser''s title was clouded, or if for the defect of the vendor''s title the vendee was dispossessed then the vendor would be liable for the purchase money. Now, the purchaser together with another person had purchased another piece of land from another vendor. The real owner of both pieces of land was a person whose name is Waliul Hasan, and he brought a suit against the purchaser who is the plaintiff in the present suit, against the purchaser of the second piece of property, and against both the vendors alleging that they had no title to the property which they had purported to sell. The vendor, in this case the present defendant, appeared in the suit and admitted that he had no title to convey the property.

The suit was compromised. The compromise was to this effect: to the real owner the two defendants gave up one of the pieces of the property which was not the subject of the kabala in dispute, and the lady, the present plaintiff, was allowed to retain the property which was the subject of her purchase from the defendant. The lady now sues the defendant for breach of warranty and claims to recover the purchase money. The learned Munsif before whom the case was tried treated the matter as a suit for damages, for breach of a contract and he directed the defendant to pay damages, and the measure of damages as fixed by him was the value of the second piece of land which the defendant and her friends had had to surrender to the real owner as the price of retaining the property which was the subject of the kabala in dispute. His judgment was to the effect that she had retained the property which was the subject of the present sale and all that she had lost was the other piece of land the value of which he fixed at Rs. 450 and according to his view of the measure of damage that was the amount to be paid by the defendant.

When the matter came before the learned Subordinate Judge on appeal he took a different view of the facts and came to the conclusion that a sum of money had been paid to the plaintiff in the suit which was compromised, that the sum of money was in fact Rs. 834 which happened to be the purchase price paid by the plaintiff to the defendant in the matter of the land which is the subject of the present controversy.

Now, it is perfectly clear that the finding of fact by the learned Subordinate Judge was not founded on any evidence at all. There is no evidence of payment of any sum of money by the plaintiff to the real owner of the property who had sued her. In any case however that finding is immaterial. The situation between the parties is simply this. The defendant sold to the plaintiff a piece of land which was not his to sell. The real owner sued the plaintiff and the defendant, and the defendant admitted in that suit that he had no title whatever to the land. Thereupon in negotiations which were no business whatever of the defendant, the plaintiff negotiated with the real owner and for a price which is not material to this suit arranged that she should retain possession of the land as her own. Now, that was a piece of negotiation between the plaintiff and the real owner of the land and in respect of those negotiations the defendant had, as I say, no business at all.

The defendant is in the position of a person who had sold property to another who, finding the real owner, has entered into private negotiations with the real owner for the sale by the real owner of the property. The sale by the defendant has totally failed for want of consideration. She has taken the purchase price and she has given nothing in exchange for the purchase price. In those circumstances she must return the whole of the purchase money which it is admitted is Rs. 834.

A very simple analogy for the situation may be found in the following hypothetical illustration of facts: A sells to B a diamond ring for the price of Rs. 100; B finds that the diamond ring has been stolen from C, and C sues both A and B with the result that A the vendor admits that the ring was stolen and that he had no title to it and B admits that his purchase was a purchase of a stolen ring and that he had no business to deal with it; thereupon C out of his generosity gives the diamond ring to the purchaser as a present. It does not lie in the mouth of the vendor to say that the purchaser had suffered no loss. The purchase had entirely failed and the means by which the purchaser ultimately came into possession of the stolen property is no business of the thief; the thief must refund the purchase price to the purchaser.

For these reasons while agreeing with the judgment of the Subordinate Judge, but disagreeing with the reasons that he has given, I would dismiss this appeal with costs. The decree of the Subordinate Judge will be modified and the plaintiff will recover Rs. 834 together with interest at 12 per cent per annum from the date of this suit till the date of the decree and at 6 per cent per annum thereafter until realization. The plaintiff is entitled to costs in all the Courts.

Kulwant Sahay, J.

I agree.