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Judgment
Veeraswami, J.—This is an appeal by the Plaintiff against the reversing judgment of the learned District Judge of Coimbatore. On the strength of a sale deed, dated August 17, 1942 and executed in favour of the twelfth Defendant by the first Defendant conveying the suit property, he sued for a declaration of title thereto and recovery of possession thereof with past and future profits.
The Appellant�s case was that the twelfth Defendant was a benamidar for him and that, further, the latter also had executed an agreement, dated August 27th, 1942, to reconvey the property to him on payment of the price. There is no dispute that the suit property was purchased by the first Defendant in his name in May 1918. By his first wife, he had a son by name Santhappa whose grandson by a predeceased son is the eighth Defendant.
The first Defendant married a second wife, and, before Defendants 2 to 7, his sons by her, were born, he entered into a partition with his son Santhappa by a registered document, dated September 14, 1922, at which the suit property was allotted to Santhappa. Santhappa died five years after partition leaving behind his son Ramaswami alias Peria Raju whose son is the minor eighth Defendant represented by his natural guardian and mother the ninth Defendant. It was claimed that in 1939 Peria Raju leased out the property to the tenth Defendant and was in enjoyment of the same. On these averments, the eighth Defendant resisted the suit claiming title and possession to be with him. The other Defendants too, except the tenth Defendant, resisted the suit.
The Appellant�s rejoinder was that the partition was never acted upon and that, in any case, Peria Raju having attested the sale deed in favour of the twelfth Defendant was estopped from denying passing of title and possession thereunder. I may add that the Appellant had an alternative prayer that if he was found to be not entitled to the property, he should be given damages against Defendants 1 to 9 on the ground that Peria Raju had misled him to purchase the property and had subsequently denied his title and dispossessed him in April 1950, and on the further ground that he had also spent certain moneys for construction on the suit property and in defending his title and possession. The trial Court decreed the suit on the finding that the partition deed, dated September 14, 1922, was nominal and not intended to be acted upon, that the suit property was the self-acquisition of the first Defendant and that Peria Raju was not estopped from denying the Appellant�s title. It declared the Appellant�s title to the suit property and granted past mesne profits fixed at Rs. 1,500 and future mesne profits at the rate of Rs. 500 per annum. The lower appellate Court reversed this decree on the main finding that the partition was acted upon and, therefore, the first Defendant had no title to convey the suit property to the twelfth Defendant. It also found that the Appellant was not entitled to, recover damages and that Peria Raju was not estopped from denying the title of the twelfth Defendant.
Before me, the points. argued for the Appellant are (i) that the view of the Courts below that Peria Raju was not estopped from denying the twelfth Defendant�s title under the sale deed, dated August 17, 1942, is wrong and (ii) that the lower appellate Court, in any case, should have decreed the suit for damages. The first point has been argued in this Court on the basis that Peria Raju was an attestor to the sale deed, dated August 17, 1942 and that he along with the first Defendant had represented to the twelfth Defendant that the first Defendant had title to convey the suit property. Both the Courts below have disbelieved the Plaintiff�s evidence as to such representation. The trial Court made a further point that there was some variation between the plaint allegations relating to the representation made by Peria Raju and the evidence of the Plaintiff on that matter and this was reiterated in this Court. But I think the question being a factual one, the concurrent finding of the Courts below in regard to it is conclusive in second appeal. It is not contended for the Appellant that the attestation by Peria Raju would furnish a basis for estoppel. But what is argued is that Peria Raju being the owner, he was aware of the recital in the sale deed that the first Defendant had title to convey and that by his conduct and silence he must be deemed to have encouraged the twelfth Defendant to believe that the first Defendant had title to convey and act upon that belief. On this footing, it is stated, Peria Raju was estopped from denying the twelfth Defendant�s title to the suit property. It does not appear that the plea of estoppel in that form was placed before either of the Courts below. On this ground the point should be held against the Appellant. Even assuming that on any view of the facts, Peria Raju was himself estopped from denying the twelfth Defendant�s title, I am unable to accept the Appellant�s contention that Peria Raju''s son the eighth Defendant would also be under the same disability. In my view, Rajkumar Jagannath Prashad Singh v. Syed Abdullah (1918) 35 M.L.J. 46 (P.C.) does not assist him. Estoppel is based upon the equitable doctrine that a person having by his representations brought about a change of position, he was not to be allowed to resile from his representations to the prejudice of the person who acted upon them. The bar is a personal one. No doubt in that case, the Privy Council held that estoppel not only applied in favour of the person induced to change his position but also of a transferee from such person and that it bound not only the person whose representations or actings had created it but all claiming under him by gratuitous title. Suffice it to say that the eighth Defendant could, in no sense, be said to claim the suit property under Peria Raju, his father, for, the property in the hands of Peria Raju would partake the character of a coparcenary and in that sense, the eighth Defendant did not succeed to the suit property and was, therefore, not a representative of Peria Raju in relation to such property. The principle of Rajkumar Jagannath Prashad Singh v. Syed Abdullah (1918) 35 M.L.J. 46 (P.C.) does not, therefore, govern the facts of this case. As held by Coutts-Trotter C.J., in Josyam Parasuramayya Vs. Josyam Venkataramayya and Others, estoppel is but a principle of law of evidence and does not create substantive rights of absolute character. It only operates to close the mouth of the person who has acted in a certain way from setting up what may be the true facts of the case. The Privy Council has pointed out in Dawsons Bank, Ltd., v. Japan Cotton Trading Co. Ltd. ILR (1935) Rang. 256 (P.C.) that estoppel is not a cause of action but it only prevents a, person from asserting the existence of some fact, the existence of which would destroy the cause of action. I cannot see, in the circumstances of this case, how the eighth Defendant was under any such disability when he claimed he property by his own right birth and not by succession. The first point therefore, fails.
Now to the second point of the Appellant. The trial Court did not decide this question in view of the decree it gave, declaring the Appellant�s title and for recovery of possession and mesne profits. The lower Appellate Court considered the question of damages but declined to give a decree therefor. The basis on which the Appellant claimed damages is the following plea in the plaint:
In the alternative and without prejudice to the primary relief set forth above, the Plaintiff is entitled to damages against Defendants 1 to 9. The 1st Defendant and the 8th Defendant�s father Ramaswami Pujari alias Periya Raju having by their representations induced the Plaintiff to purchase the suit property in the circumstances stated above and having denied the Plaintiff�s title and dispossessed him in April 1950, he has been deprived of the property, worth Rs. 7,000, the sum of Rs. 1,000 spent for the construction and Rs. 2,000 spent for maintaining his title and possession aggregating to Rs. 9,000. The Plaintiff is entitled to recover the sum from Defendants 1 to 9.
Dealing with the specific plea, the lower appellate Court stated that it was not satisfied that any representation had been made either by the first Defendant or by Peria Raju. It was of the opinion that also that if any representation had been made to the twelfth Defendant, the Appellant, who was only a purchaser from the twelfth Defendant, could not take advantage of it since it had already negatived his case that the twelfth Defendant was a benamidar for him. The lower appellate Court thought that as there was no privity of contract between the Appellant and the first Defendant or any of the other Defendants, the claim for damages on the ground of alleged representations was unfounded.
Since the case of representations by the first Defendant and Peria Raju the twelfth Defendant was not accepted by the lower appellate Court, learned Counsel for the Appellant put the claim for damages on the ground of breach of implied covenant of title, implied because the sale deed in favour of the twelfth Defendant contained no such express covenant. On this basis, it is, of course, obvious that no liability for damages could be saddled on Defendants 8 and 9. As to the first Defendant�s liability, Section 55(2) of the Transfer of Property Act clearly provides that the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. The section goes further to provide that the benefit of such a contract is annexed to and shall go with the interest of the transferee as such and is enforceable by every person in whom that interest or part of it is vested. When the lower appellate Court observed that there was no privity of contract between the first Defendant and the Appellant as purchaser from the twelfth Defendant, it apparently overlooked this statutory provision. In one sense one may say that strictly speaking there is no privity of contract between the seller and the transferee, from a buyer of immovable property but there is clearly, by reason of Section 55(2) of the Act, privity of estate between such persons which will enable the transferee from a purchaser to sue for damages in breach of a deemed covenant of title. It is however, contended that since the twelfth Defendant knew or should be deemed to have known the registered partition between the first Defendant and his son by his first wife at which the suit property had been allotted to the share of the son, no covenant of title could be implied. A similar argument was repelled by Sadasiva Ayyar and Napier JJ. in Arunachala v. Ramasami ILR (1915) Mad. 392. While holding that a covenant for title u/s 55(2) of the Transfer of Property Act was annexed to the conveyance, the learned Judges observed at page 1175:
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 Ayyar J. in Subbaraya Reddiar v. Rajagopala Reddiar 1914 M.W.N. 376 with which decision we agree.
Spencer and Dbvadoss JJ. in Gopalaswamy Iyengar and Others Vs. Nummachi Reddiar and Others, would appear to be of a different view. They said at page 396:
Assuming that upon valid sales of immovable property there is an implied covenant for quiet enjoyment between the vendor and the vendee... we have found that the sale deed conveyed no title and that the vendee was aware of its defects. There was therefore no lawful and enforceable contract of sale and further no implied covenant attached to such an agreement.
The learned Judges, therefore, considered that the Plaintiff in that case was only entitled to a return of the money paid by him on a consideration that failed. Apparently the attention of the learned Judges was not invited to the decision in Arunachala v. Ramaswami ILR (1915) Mad. 1171. Apart from authority, with respect, I would myself not be prepared to hold that a covenant for title could legitimately be deemed by implication notwithstanding the buyer''s knowledge of defect in title. In this case, however, I am not satisfied that factually the twelfth Defendant was aware of any defect in the title of the first Defendant. In the circumstances of this case, I am inclined to grant a decree for damages on the ground of breach of implied covenant of title. But I would fix the damages at only Rs. 3,000 the price paid by the twelfth Defendant.
The result is, the Appellant will be entitled to a decree for a sum of Rs. 3,000 with interest at 6 per cent per annum from the date of the plaint and proportionate costs recoverable from the assets, if any, of the deceased first Defendant in the hands of Defendants 2 to 7, the sons of the first Defendant. To that extent, the second appeal is allowed and the suit is decreed. In other respects, the second appeal stands dismissed but with no costs.
No leave.