Mukerji and Bennet, JJ.:— This is an appeal by the two defendants in the suit.
[Portions of the judgment which are not material for the purpose of this report have been omitted.]
The Raja of Basti owned the property in suit. It was eventually purchased by certain gentlemen known as the Pandes of Narharia in the district of Basti. An 8 annas share in the village of Bhatendwa was sold by the said Pandes to Babu Nawal Kishore, the defendant No. 1, for a sum of Rs. 6,000. The entire sum was left with the vendee for payment to certain mortgagees who were in possession. This was on the 10th of March, 1914. The defendant No. 1 sold the property to the plaintiff on the 31st of August, 1915, for a sum of Rs. 15,000. Out of this consideration money a sum of Rs. 9,000 was paid in cash to the appellant No. 1 and Rs. 6,000 was left with the vendee for payment to the mortgagees, who were duly paid. After this, the sons of the Pandes of Narharia brought a suit against Sarju Ram Sahu, the plaintiff respondent in this case, and Mr. Nawal Kishore, the appellant No. 1, to recover the entire 8 annas share on the ground that the family of the then plaintiffs and the vendors was a joint one and the vendors had no right to transfer the family property. The suit succeeded to the extent of 7 annas 8 pies share out of the entire 8 annas share sold. Sarju Ram Sahu filed an appeal to the High Court but the appeal was dismissed. * * * * * Thereupon the plaintiff filed the suit out of which this appeal has arisen.
In the plaint as originally filed the plaintiff stated that the defendants were members of a joint Hindu family and for some reasons best known to him the defendant No. 2, the father of the defendant No. 1, had obtained the sale deed from the Pandes of Narharia in favour of his son, the defendant No. 1. Later on the plaint was amended and it stood as if both the defendants had made the purchase, the sale deed being executed in favour of only one of the defendants.
The learned Subordinate Judge framed several issues and he held that the defendants being members of a joint Hindu family were both liable and that the plaintiff was entitled to recover a proportionate part of the purchase money paid by him and the costs incurred by him in his litigation with the sons of the Pandes of Narharia. The defendants have filed this appeal and the plaintiff has filed a cross-objection in respect of the portion of the damages disallowed by the court below.
The argument on behalf of the appellant No. 2 was that the sale deed did not contain any covenant to indemnify the plaintiff and that, in any case, all the important facts relating to the property had been mentioned in the sale deed and, therefore, the plaintiff having purchased with his eyes open was not entitled to recover any damages.
The sale deed has been read out to us. We do not find in it any statement of the fact that the Pandes of Narharia had sons who were members of a joint Hindu family with them. This was an important fact which Sarju Ram might have been told for his benefit. But the matter does not really stand on such a narrow ground. It is true that the sale deed in question does not contain any statement to the effect that the vendor was assuring the vendee that his title subsists. But by application of section 55, sub-section (2), there is an implied contract on the part of the vendor that his title subsists.
Some cases have been cited to us on behalf of appellant No. 2, and these are Kulla Mal v. Umra (1), Gondu Ramasubbu Iyer v. Mutliiah Kone (2), and Kali Din v. Madho (3). The first two cases are single Judge judgments and do not really cover the point in question. In the first case the transfer was of an occupancy holding which was not transferable under the law. In the second case what the court considered was section 55, sub-section (1), clause (a), and not section 55, sub-section (2). In the last mentioned case the observations of Stuart, J., of this Court do not touch the point in question. On the other hand there are two clearly applicable cases which go entirely against the appellant. These are Ram Chunder Dutt v. Dwarkanath Bysack (4) and Muhammad Ibrahim v. Nakched Ram (5). In both these cases it was held that unless the vendor's liability as imposed by section 55, sub-section (2), was excluded by express covenant, his liability would be deemed to subsist, notwithstanding the fact that the vendee may have some idea as to the defect in the title of the vendor. In the Calcutta case it was stated that the vendee was entitled to rely on the assurance of title on the part of the vendor, although he himself may have had some doubt as to it. We are of opinion that the view taken in Calcutta and in this Court quoted above is the correct view. The liability of the vendor clearly exists.
The result is that the appeal fails and we hereby dismiss it with costs.