Dharmawathie Hamine V. Kira

1955 Present : Basnayake, A.C.J., and Pulle, J.

DHARMAWATHIE HAMINE, Appellant, and KIRA, Respondent

S. C. 237-D. C. Kegalle, 6,805

Vendor and purchaser-Covenant to warrant and defend title-Actio rei vindicatio instituted by purchaser-Notice to vendor-Dismissal of action-Duty of purchaser to appeal-Liability of vendor to pay damages.

Where a purchaser of immovable property fails to succeed in. a vindicatory action instituted by him in respect of the property, his omission to appeal to the Supreme Court does not exempt the vendor from liability for damages for breach of his covenant to warrant and defend title, if the vendor was given sufficient notice of the action but did not induce the vendee to appeal.

APPEAL from a judgment of the District Court, Kegalle.

N. K. Choksy, Q.C., with E. D. Cosme and O. M. da Silva, for the Defendant-Appellant.

H. W. Jayewardene, Q.C., with A. C. M. Uvais, for the Plaintiff-Respondent.

July 28, 1955. BASNAYAKE, A.C.J.-

This is an action for damages in a sum of Rs. 3,500 for failure to warrant and defend title to a field called Kaththottiye Cumbura alias Andoluwe Kumbura which the plaintiff-respondent (hereinafter referred to as the respondent) purchased from the defendant-appellant (hereinafter referred to as the appellant). The respondent was never able to get possession of the field. He was first obstructed by one Chara. The respondent thereupon brought an action against him. In that action the respondent was declared entitled to the northern half of the field. When the respondent proceeded to take possession of the northern half to which he was declared entitled, two persons by name Sandara and Seelawathie obstructed him. He was thereupon compelled to institute a second action in the District Court, this time against Sandara and Seelawathie. The respondent failed in that action, but did not appeal. The instant action is the sequel to that failure.

The present appeal is by the respondent's vendor who has been cast in damages. Learned Counsel for the appellant contends that the notice served on her was defective in that she was not asked to intervene in the action. In support of his contention he has referred us to the case of Appuhamy v. Singho et al.1[15 N. L. R. 97.]. He relies on the following passage in the judgment at page 98 :-

" The demand to warrant and defend title need not necessarily be in writing, although, perhaps, it is the most convenient form of making the demand. The demand may be verbal where the vendor is asked by the vendee to intervene in the action and to establish the title that has been conveyed ".

He also relied on the case of Jinadasa v. Duraya 1[20 N. L. R. 158.]. In that case de Sampayo J. having referred to a passage from Voet 21, 2, 30, goes on to say :

" The same passage in Voet shows that if the purchaser is defeated in the action and does not appeal, or, having appealed, does not press the appeal, in a case where the vendor has not intervened or undertaken the defence (absente venditore), he is likewise deprived of any remedy against the vendor ".
On the authority of that statement learned Counsel submits that the respondent should have appealed in the second action and as he did not appeal he is not entitled to the redress he claims in the instant action.

It is unsafe to rely on an isolated passage from Voet and base an argument thereon without examining the entire context in which it occurs. The passage in question occurs in the title " De Evictionibus et Duplae Stipulation " (Bk. XXI, Tit. II)-" Of Evictions and Warranty of Title and the Covenant for Double Value ". None of the other commentators deals with this subject in as much detail as Voet. After discussing several aspects of eviction and warranty of title Voet goes on to say in paragraph 20 of that title :

" It must now be observed that a person from whom a thing has been evicted cannot sue his auctor (i.e.,

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