Dhadha Sahib vs Mahomed Sultan Sahib

The plaintiff brought certain specific land from the first defendant, a Mahomedan. The first defendant had bought this land from a co-parcener in

a Hindu family. The other co-parceners instituted a suit for partition and it was during the pendency of that suit that the first defendant sold the land

to the plaintiff. By the decree in the suit for partition the land with which we are concerned was not allotted to the vendor of the first defendant but

some other land was given to him instead. According to the dictum of the learned Judges of this Court in Nanjayya v. Shanmuga ILR (1918) Mad.

684 under such circumstances so far as any question lay between the first defendant and the co-parcener from whom he bought the land, the first

defendant would be entitled to whatever was substituted by any decree for partition for the land which he had bought from the co-parcener. This

principle seems to have been acquiesced in two other decisions of this Court, one of which is reported in Sabapathi Pillai v. Thandavaraya Odayar

37 M.L.J. 620 and we are prepared for the purposes of this argument to assume that that proposition of law is correct. Even then it is difficult to

see how it avails the plaintiff in this suit. The plaintiff has not bought the land from a Hindu co-parcener who according to Hindu law would have a

right to demand partition of the family property and to get the share due to him. The plaintiff has bought certain specific land from the first

defendant who is a Mahomedan and between them there can be no question of working out any such equity as is mentioned in, Manjayya v.

Shunmuga I.L.R, (1913) Mad. 684. When analysed, the position is simply this. A sells a particular parcel of land to B. It is found that A has no

title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought. When stated in these words,

the position of the plaintiff would be quite untenable and it is difficult to see ''why the character of the superior title by which the title of the vendor

in the land which he purported to sell is defeated, should make any difference to the vendee''s rights. As the vendor''s title to the land in dispute has

been superseded by a superior title, the only remedy open to the vendee is damages for breach of warranty of title. It is brought to our notice that

in Sabapathi Pillai v. Thandavaraya Odayar ILR (1919) Mad. 309 the plaintiff was a purchaser at Court auction in execution of a money decree

against a Hindu co-parcener, and it was apparently not argued before the learned Judges that a vendee of a purchaser from a Hindu co-parcener

could not claim against his vendor any such equity, as was mentioned in Manjayya v. Shunmuga I.L.R, (1913) Mad. 684. The case was argued on

the basis that in the case of a purchaser at Court auction there is no warranty of title. We do not see much significance in the fact that the question

now raised before us was not raised before the learned Judges who decided Sabapathi Pillai v. Thandavaraya Odayar ILR (1919) Mad. 309. We

are of opinion that if we were to hold that the plaintiff is entitled to whatever land the first defendant might have got in substitution for what he had

purchased from his vendor we would be giving him property which he never bargained for. We therefore set aside the decree of the District Judge

and give the plaintiff in its stead a decree for damages which he had asked for in the plaint as an alternative remedy. He claimed Rs. 300 as

damages and we think he is entitled to it. The learned District Judge is evidently wrong in saying that in assessing damages the plaintiff is not entitled

to ask that they should be assessed at the present enhanced value of the land. Surely he is entitled to full compensation so that he might be restored

pecuniarily to the same position as if he had recovered the land which the first defendant sold to him. We also direct that six per cent, interest on

this sum to be allowed to the plaintiff from the date of the plaint.

The appeal is allowed to this extent. Each party will bear his own costs throughout.