Back
1957 Supreme(Ker) 205
Judges : T.K.JOSEPH,VARADARAJA IYENGAR
Sayu Mohammed Abdulla - Appellant
Versus
Neelakantan Krishnan - Respondent
Case No : A. S. No. 20 of 1956 (T)
Decided On : 08/13/1957
Advocates Appeared :
N. Sankara Iyer; For Appellant R. Narayana Pillai; For 1st RespondentM. P. Ramakrishna Pillai; For Respondents 2 & 25 to 29
The main legal point established in the judgment is that fraudulent misrepresentation as to title and the scope of the covenant of indemnity in a sale deed can be determined based on the principles of caveat emptor, the Indian Contract Act, and the Limitation Act.
Headnote:
fraudulent misrepresentation - Property Dispute - Atchuthan Atchuthan v. Itticheria, Soasa, 37 T. L. R.209 - Ouseph Varkey v. Ouseph Chacko, A. I. R.1953 T-C 236 - Derry v. Peek (1889) 14 App. Ca. 337 - S.18 of the Indian Contract Act - Mohan Lall v. Sri. Gungaji Cotton Mills Co. (1889) 4 C W. N. 369 - Art.116 of the Limitation Act - Gulabchand v. Suryajirao A. I. R.1950 Bom. 401 - Subbaraya v. Rajogopala I. L. R.38 Mad. 887 - Chuni Lal v. Hari Chand. A. I. R.1934 Lah. 305 - Kashi Rao v. Zabu, A. I. R.1932 Nag. 5 F. B. - Saraswathibai v. Madhukar A. I. R.1950 Nag. 229 - Kunhi Pillai Thampatty v. Kunhikava Thampan:1956 K.L.T. 302 - Balakrishna Kammath v. Ganesha Pai,1954 K.L.T. 87 - Rai Charan Mandal v. Biswan Nath Mandal (1914) 20 C. L. J. 107
Fact of the Case:
The plaintiffs, as vendees of immovable property, filed a suit against the vendor for damages for fraudulent misrepresentation as to title to the property sold and for enforcement of a covenant of indemnity contained in the sale deed. The property was the subject of a partition suit, and the issue as to title was disposed of in favor of the common tarwad. The plaintiffs claimed that the sale was made by false and fraudulent misrepresentation as to title by the vendors, and that they were bound to answer for the plaintiffs' loss of the property.
Finding of the Court:
The court found that the vendors were guilty of fraudulent misrepresentation as to their title and that the plaintiffs were entitled to claim damages. The court also held that the covenant of indemnity in the sale deed covered the loss of title and possession as a result of the final decree in the partition suit. The court further held that the suit was not barred by limitation.
Issues: The main issues were whether the vendors were guilty of fraudulent misrepresentation, the scope of the covenant of indemnity, and the applicability of the limitation period.
Ratio Decidendi: The court applied the legal principles established in Atchuthan Atchuthan v. Itticheria, Ouseph Varkey v. Ouseph Chacko, and Derry v. Peek to determine fraudulent misrepresentation. The court also considered the provisions of S.18 of the Indian Contract Act and the interpretation of Art.116 of the Limitation Act to decide the scope of the covenant of indemnity and the applicability of the limitation period.
Final Decision: The court held in favor of the plaintiffs, finding the vendors guilty of fraudulent misrepresentation and ruling that the suit was not barred by limitation. The case was remitted back to the lower court for further proceedings.
1. This appeal is by the plaintiffs and it arises out of a suit instituted by them as vendees of immovable property against the vendor for damages for fraudulent misrepresentation as to title to the property sold and also for enforcement of a covenant of indemnity contained in the sale deed.
2. The property in question which is scheduled as item 1 to the plaint is a garden land 78 cents in extent in Edava Pakuthy in Chirayinkil Taluk. Along with other properties it was the subject-matter of a partition suit O. S.705 of 1105 on the file of the Attingal Munsiff's Court, among the members of an Ezhava tarwad, who are represented in this suit as defendants 1 to 34. Defendants 29 to 34 who were the plaintiffs in that suit, claimed the property to be common tarwad property and as such available for partition while the 1st defendant set up the exclusive title of his sakha comprising the defendants 1 to 3. According to the 1st defendant it was an acquisition of Kurumpa Nachi whom he put forward as the sister of the grand-mother of his mother and had devolved in due course of succession on his sakha alone Pending that suit O. S.705, the first defendant, his mother Chirutha Kali and uncle Raman Sankaran sold the property, under Ext. B sale deed dated 4-5-1105 to Navoor Pathummal, deceased and she was accordingly made the 32nd defendant in that suit, The issue as to title which so arose in O. S.705 was disposed of by the trial court in favour of the common tarwad. Vide Ext. I judgment dated 29-7-1110. The District Judge in appeal held to the contrary and in favour of the 1st defendant's sakha but in second appeal, S. A. 176 of 1114 the High Court restored the decision of the Munsiff. Vide Ext. II judgment dated 8-4-1119. By the final decree in the partition suit, 6-38 cents alone of item 1 was allotted towards the share of the vendors under Ext. B and directions were given for the rest of the item from Navoor Pathummal. The plaint averred that Ext.B sale was taken in the name of Navoor Pathummal for and on behalf of the Muslim Marumakkathayam tarwad of the plaintiffs 1 and 2 and defendants 35 to 46 to which she belonged and that she was persuaded to purchase the property under Ext. B by false and fraudulent misrepresentation as to title made by the vendors. The plaint went on to say that as a result of the ultimate decision in the partition suit, item 1 except to the extent of 6-3/8 cents was in danger of being lost to the plaintiff's tarwad and that the defendants 1 to 34 were therefore bound to answer for all the plaintiffs' loss of the balance of item 1 as estimated on the basis of the total sale price of Rs. 3900 and the value of improvements of Rs. 1500 and also charged on such balance. The cause of action for the suit was claimed to arise on 8-4-1109 the date of Ext. II judgment and on 20-9-1122 the date of the plaintiff's knowledge about the initiation by the defendants 29 to 34 of delivery proceedings in execution of the final decree in the partition suit. It may be added that delivery of the balance of item 1 actually took place in or about August 1954 during the pendency of this suit but no amendment of the plaint was sought for, on that account. Item 2 was scheduled to the plaint, as having been acquired by the 1st defendant with the help of the sale consideration under Ext. B and liable, in consequence, to answer the plaint claim. The suit was laid on 10-6-1950 corresponding to 27-10-1125.
3. The suit was resisted by the defendants 1 and 29 to 34 by separate written statements. The 1st defendant mainly contended that Ext. B sale deed was executed in the bonafide belief of the vendors as to their title and there was really no fraudulent misrepresentation by them in the matter as alleged. He denied that the warranty of title and the covenant for indemnity as contained in Ext. B furnished any or sufficient cause of action for the plaintiffs' claim for damages, as sued for. He further pleaded that the suit having been f
