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DINGIRI AMMA v. MUDIYANSE et al.
NLR33V282
1931 Present: Akbar J.
DINGIRI AMMA v. MUDIYANSE et al.
115-C. R. Matale, 521.
Sale-Deed of transfer with
stipulation of good title-Action for failure to warrant and defend and for
breach of covenant-(audition of notice and eviction-Roman Dutch law.
Where a deed of transfer contained an express covenant that the vendor had "
legal right to dispose of the land," the express warranty of title may be
enforced . without the preliminary condition of notice and eviction.
IN
this action the plaintiff sued the defendants
for the recovery of half the purchase money and damages consequent on failure of
the defendants to warrant and defend title conveyed by their father,
Ranhamy.
Ranhamy sold the entirety of the northern 12 lahas paddy sowing of
Kanatiangekumbura on deed No. 442 of September 21, 1921, to plaintiff. Ranhamy
expressly covenanted that he had good and lawful title to the premises. In 1928,
plaintiff was ousted from the eastern 6 lahas by the heirs-at-law of Punchirala,
brother of Ranhamy. Plaintiff then instituted case No. 19,250, C. R. Matale,
against the heirs-at-law of Punchirala for declaration of title to this eastern
block. Ranhamy being then dead plaintiff duly noticed heirs-at-law of Ranhamy,
the present respondents, to warrant and defend the title conveyed by Ranhamy.
The respondents took time to file their statements but did nothing further in
that case. On the trial date, plaintiff settled the action as he discovered that
Ranhamy had in 1917, as first defendant in No. 12,299 C. R. Matale, filed answer
and given evidence on oath to the effect that he and the heirs-at-law of
Punchirala were in common possession of this land.
The Commissioner of Requests dismissed the action holding that the heirs-at-law
of Ranhamy were not bound by the covenant made by Ranhamy, and, further, that in
law. plaintiff could not maintain this action because of the compromise in case
No. 19.250. The plaintiff Appealed.
D. S. Jayawickrama, for
plaintiff, appellant.- Where there is an express covenant as to title, it may be
enforced without the preliminary condition of notice and eviction-Misso v.
Hadjear 1[19 N. L. R. 277.]. Purchaser or his heirs may sue the
vendor or his heirs when the abligation arises from convention. Voet XXI., 2,
17. Express convenant as to title may he enforced against the heirs of the
vendor. 25 Hals. 469.
Heirs are bound by obligation of ancestor, though they are riot expressly named
in the contract, except where the obligation is personal to the ancester, or
arises ex delicto. Walter Pereira (1913) 594.
D. S. L. P. Abeyesekere, for defendants, respondents.-Plaintiff having
compromised case 19,520, cannot maintain this action.
In any case, plaintiff should have instituted a possessory suit (Jinadasa v.
Duraya 2[20 N. L. R. 158.]).
Jayawickrema, in reply-In Jinadasa v. Duraya (supra) the case of an express
covenant as to title was not considered.
November 2, 1931. AKBAR. J.-
By deed No. 442 of September 21, 1921, one Ranhamy sold to the plaintiff 12
lahas of a certain paddy field for a sum of Rs. 300 and by this deed he
covenanted that he had " full power and legal right to sell and dispose of " the
above field. He further undertook to settle all disputes if any and bound
himself and his heirs to procure any deeds or other writings relating to the
said premises, if required. These are the express covenants in the deed. The
plaintiff was ousted from the eastern 6 lahas in 1928 by the heirs-at-law of one
Punchirala, a brother of the above-mentioned Ranhamy. The plaintiff-appellant
thereupon brought case No. 19,250 for declaration of title and recovery of
possession of these 6 lahas. and Ranhamy being dead, the plaintiff noticed the
heirs-at-law of Ranhamy, who are the defendants in this case and respondents to
this appeal, to warrant and defend the title conveyed by Ranhamy. Although the
respondents took time to file
