Jabbar Sahib vs V.R. Renu

Ramakrishnan, J.—This second appeal is filed by the plaintiff in O. S. No. 370 of 1958, on the file of the District Munsif of Vellore. He had

taken a lease of the plaint schedule properties from the defendant for a period of 5 years by a registered lease deed dated 25-8-1956 and had

paid in advance a sum of Rs. 750 as rent for the entire period. Subsequently, the minor son of the defendant, represented by his grand-father as

next friend, filed a suit O. S. No. 714 of 1956 impleading the present defendant as the first defendant, and the present plaintiff as the second

defendant. In that suit the minor son of the defendant alleged that his father was wasting the joint family properties, that the transactions effected by

him including the suit lease were effected for debts of an Avyavaharika nature, that therefore they would not be binding on the minor son, and that

consequently the Joint family properties including the properties in the present suit, the subject-matter of the lease, should be divided by-metes and

bounds and the plaintiff given possession of an one-half share.

In this suit the present defendant remained ex parte and the present plaintiff was forced to enter into a compromise with the minor and pay him Rs.

275 as a result of which he was allowed to remain in possession of the leased property for the rest of the lease period. Alleging that the lease deed

involved a covenant for quiet enjoyment, but that covenant had been broken, the plaintiff filed the present suit for recovery of Rs. 275, the amount

which he had to pay under the compromise aforesaid. The defendant urged that there was no threat to the plaintiff''s enjoyment of the suit property,

and that if the plaintiff had incurred any expense or paid any amount in connection with the prior suit, it was not warranted by the situation and that

therefore the defendant was not liable to pay any amount to the plaintiff.

The trial court accepted the contention of the defendant and dismissed the suit with costs. The learned Subordinate Judge of Vellore, to whom

the plaintiff appealed, took the following facts as the principal circumstances into consideration for confirming the decree of the trial court :

(1) The mother of the minor son of the defendant had issued a notice on 20-8-1956 warning people against any alienation of the family properties

by the defendant, and the present lease deed was taken by the plaintiff on 25-8-1956, in spite of the above notice;

(2) In the relief portion of the minor''s suit no relief was prayed for against the present plaintiff;

(3) It could not be said that the present plaintiff suffered any real apprehension about his peaceful enjoyment of the lease property; and

(4) Since there was no evidence as to the circumstances under which the plaintiff agreed to pay Rs. 275 to the minor in the prior suit, it was likely

that he did so because the defendant did not receive the full lease amount from the plaintiff.

It is urged by the learned counsel appearing for the appellant-plaintiff in this second appeal, that some of the factual statements made by the

appellate Judge above extracted are incorrect and secondly the legal inference drawn by him on the facts is also opposed to law. u/s 108(c) of the

Transfer of Property Act, the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs

the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. This provision also means

that the title, which has been conveyed by the lessor to the lessee, is a good title and that there is no infirmity in it. The words ''without interruption''

in Section 108(c) are not qualified in any way, and have been understood to mean what in England is known as a covenant for quiet enjoyment in

an unqualified form. The covenant protects the lessee only against lawful disturbance, but does not cover tortious entries, eviction or interruptions

by trespassers.

In the present case, there is no allegation that the lessee did not fulfil any of the terms of the lease. He had paid the rent in advance. It is also to be

pointed out that though the defendant pleaded in the written statement that a balance of Rs. 300 was due under the lease deed, he did not adduce

any satisfactory evidence, about this contention. The trial court observed that under the lease deed a sum of Rs. 450 was paid in cash and a sum of

Rs. 300 was paid at the time of the registration and that the defendant, as D.W. 1, did not at all speak to anything about the consideration which

passed under Ex. A-l. The trial court found that there was no evidence to show that the defendant received only Rs. 300 under the lease deed as

contended by him. Consequently, the plaintiff had done all that he had covenanted to do under the lease deed, and in such circumstances the

defendant must be deemed under the law as having given a covenant for quiet possession.

In the plaint in the prior suit of the minor son of the defendant, there was a specific allegation that the lease was not binding on the son because

the debt was incurred for an avyavaharika purpose, and the relief sought was that the plaintiff should be given possession of his half share

straightaway. Thereby the defendant''s possession of that half share would be taken away from him, if the plaintiff had succeeded on this suit. Both

the courts below were wrong in their assumption that there was no threat in the prior suit to plaintiff''s quiet enjoyment. There could not be a more

clearer threat, when the minor came forward and attacked the father''s alienation as not binding on him and prayed for recovery of possession of

the lease property forthwith. Therefore the correct legal inference is that there was in the prior suit, an interference with the covenant for quiet

enjoyment, and the plaintiff was forced to pay Rs. 275 so that he could retain possession of the property, uninterrupted for the rest of the lease

period. The lower appellate court has observed that there was a notice dated 20-8-1956, issued by the mother of the minor plaintiff warning

people against taking alienations of the family property from the father, and that the plaintiff when he took the lease on 25-8-1956 must be deemed

to have been aware of this notice. No doubt, a copy of this notice is now filed by the plaintiff, but there is no proof that the plaintiff received this

notice before the lease deed was executed. Actually, the lease was to run for five years from 17-8-1956, a date prior to the notice. Apart from

this, ""the fact that a buyer knew of a defect in the title of the seller before his purchase would not prevent him from suing for damages for breach of

covenant for title, and oral evidence to show that the purchaser knew of the defect in title could not be adduced u/s 92 of the Evidence Act as it

would amount to contradiction of a term of the contract of sale namely the covenant of title or for freedom from encumbrances."" (Vide

observations of Chandrasekhara Ayyar, J. in Thammineni Paparao and Others Vs. Dhavala Polinaidu and Another, .

The learned counsel for the respondent before me, laid a great deal of stress on the fact that before the compromise was entered into in the prior

suit, the plaintiff should have given notice to the defendant of his proposed step. In the absence of such notice, it was urged, the plaintiff would not

be entitled to sue the defendant for damages. But the record shows that the defendant then remained ex parte. He should, therefore, be fastened

with constructive knowledge of the entire proceedings in that suit, including the compromise decree, which will be as binding on him as on the

present plaintiff. It will be futile as well as improper to urge, that after the plaintiff had the misfortune to be faced with a litigation by the lessor''s son

and after the lessor had remained ex parte leaving the plaintiff alone to face the litigation, the plaintiff should be expected once again, to give notice

to the lessor of what he proposed to do, to get the best bargain out of the third party who took legal steps to disturb the covenant of quiet

enjoyment. In a case from the Nagpur High Court where the vendor, who was impleaded as a defendant to a suit impeaching his title and claiming

the vendee''s eviction, remained ex parte, though the question of title was a matter within his special knowledge, and therefore the vendee

compromised the suit, and subsequently filed a suit for damages against the vendor for breach of the covenant, it was held that the vendor was

liable, for damages and he could not without imputing bad faith to the vendee blame him for compromising the suit, vide Narayan v. Bhaurao, AIR

1956 Nag 124. Again in another case from Nagpur High Court, which was cited before me, it was held that where the vendor himself is fully

cognizant of the litigation regarding the title of the property sold, that his own brother had started against the vendee, it is the duty of the vendor to

suggest to the vendee to put forward the proper pleas which he says that the vendee failed to take in that litigation; and therefore he cannot say that

that vendee''s conduct in not raising proper pleas, disentitles him from claiming any damages. Vide AIR 1933 364 (Nagpur)

The above decisions no doubt referred to covenant of title implied in a sale deed, but there is no reason why the principle should not be

extended to the covenant for title and quiet enjoyment, implied in a lease deed.

For the aforesaid reasons, I am of the opinion that both the courts below have erred in applying the correct law to the facts of the present case,

and if that law had been so applied, the plaintiff was bound to succeed in his claim. I therefore allow the second appeal, and set aside the decrees

of the trial court as well as of the lower appellate court, and decree the plaintiff''s suit with costs throughout. No leave.