C. Avudainayagam Pillai vs S.S. Bharathi (died) and Others

Anantanarayanan, J.—The essential facts of this second appeal will be sufficient to show that the Plaintiff (Appellant) is entitled to succeed,

with regard to the quantum of damages awarded to the Plaintiff by the trial Court, and erroneously disallowed by the learned Subordinate Judge of

Tuticorin in paragraph 12 of his judgment under a misapprehension with regard to the law The facts are that the first Defendant--the lesser--

granted the Plaintiff (Appellant) a lease of the property for five years from 1st July 1950 to 30th June 1955. When the Plaintiff attempted to take

possession of the property and to enjoy it, he was obstructed and prevented by Defendants two to four who were prior tenants of the lessor (first

Defendant) and who chose to prevent the new lessee from obtaining possession.

The result was that the first Defendant and the Plaintiff had jointly to institute a suit for declaration and injunction (Original Suit No. 88 of 1950).

This suit was decreed on a compromise between the parties on 30th October 1953. The Plaintiff finally succeeded in obtaining possession on 1st

March 1954 and, thereafter, he was in quiet enjoyment and possession of the property for the duration of the rest of the lease (till 30th June 1955).

There was an interim period from about 1951 till 15th March 1954, when a Receiver functioned and was in possession of the property. The

Plaintiff (Appellant) has not been awarded any relief by the Courts below with regard to this period when the property was in the possession of the

Receiver. But the trial Court awarded Rs. 900 on the evidence of the proportionate loss sustained by the Plaintiff during the period when he was

kept out of occupation, excluding the period of Receivership between 1st July 1950 and 1st March 1954. It is this claim which was disallowed by

the learned Subordinate Judge in the first appeal.

The only reason given by the learned Subordinate Judge for disallowing this claim is that the covenant between the parties u/s 108(c) of the

Transfer of Property Act is a qualified one, and that unless the lessor had instigated Defendants 2 to 4 to obstruct the Plaintiff, the Plaintiff could

not recover any damages against the lessor. This view of the law is not correct, and the matter has been clearly enunciated, if I may say so with

respect, by Varadachariar J., in Nandi Reddi v. Lakshmi Reddi (1955) 69 M.L.J. 461, 462. The learned Judge observed:

The language of Section 108(c) of the Transfer of Property Act seems to be clear enough to show that the Indian Legislature has not adopted the

English Law as to implied covenants...It has been held that this Section 108(c) corresponds to what is known as the absolute covenant in the

English Law and not to the qualified covenant which will be available only in the event of dispossession by the grantor or those claiming under him,

but not available in respect of dispossession by a person claiming by title paramount.

In this view and since the covenant for quiet enjoyment is absolute and not qualified under the Transfer of Property Act, the Plaintiff was clearly

entitled to recover in damages. As there is no serious dispute with regard to the quantum awarded, I allow the second appeal and restore the

decree of the trial Court in this respect. The Plaintiff will have costs to the extent of his success throughout.