Iqbal Ahmad, J.:— This is a plaintiff's appeal and arises out of a suit for recovery of Rs. 1,848-4-0. The defendants sold certain immovable property to the plaintiff-appellant for a sum of Rs. 1,000. The property sold originally belonged to a man named Bishan Dat and, on his death, his widow and his daughter sold the property to the defendants. The defendants, as already stated, sold the same to the plaintiff-appellant. After the death of the widow and the daughter the reversioners of Bishan Dat, filed a suit for possession of the property against the plaintiff-appellant on the ground that the widow and the daughter had only a life estate in the same and that, on their death, the reversioners became entitled to possession of the property. That suit was contested by the plaintiff-appellant but was decreed. Plaintiff then brought the suit, giving rise to the present appeal, for recovery of the sale consideration with interest and for the costs that he had incurred in the litigation with the reversioners. The defendants resisted the suit on the ground that under the terms of the sale-deed executed by them in favour of the plaintiff they were not liable, in the events that had happened, to refund the consideration to the plaintiff and that the plaintiff was not entitled to recover the amount spent by him in the litigation with the reversioners. These contentions were overruled by the trial Court. That Court however did not award to the plaintiff interest at the rate claimed by him but allowed interest by way of damages at the rate of 6 per cent per mensem, and passed a decree in the plaintiff's favour for a sum of Rs. 1,609-4-0. On appeal by the defendants the lower appellate Court held that, having regard to the terms of the sale-deed executed by the defendants, the defendants were not liable to refund the sale, consideration to the-plaintiff though the plaintiff lost the-property sold as the result of the decree-passed in favour of the reversioners. In support of this conclusion it placed reliance on the following indemnity clause-contained in the sale-deed:
“If any partner or cosharer of ours should arise and make a claim and the whole or a part of the property sold goes out of the possession of the vendee or if some money is found to be payable and the vendee is obliged to pay it the vendee would be entitled to recover that amount together with costs and damages from our persons and property of every kind.”
2. It held that as the reversioners were neither the partners nor cosharers of the defendants the plaintiff had not the right to recover the sale consideration from the defendants.
3. It repelled the contention of the plaintiff that the liability of the defendant arose under Section 55-(2) of the Transfer Property Act, on the ground that in the present case there was
“a contract to regulate the relations of the parties in case the vendee be dispossessed and that contract is that the vendors would be liable, if a, partner or a cosharer of the vendee dispossess the vendee”
and that
“the very fact that the parties chose to mention, the particular cases in which the liability of the vendor arose is sufficient to indicate that the liability of the vendor was to be confined to those cases”
and to no others. In arriving at this conclusion the lower appellate Court was mainly guided by the decision of the Calcutta High Court in Guru Prasad Das v. Narendra Narain Maity(1). In that case it was held that, where by the terms of a sale-deed the vendor is made liable to refund the purchase money in the event of the dispossession of the vendee “by the vendor, his heirs or representatives” the vendor is not liable to refund the purchase money if the vendee is dispossessed by a person “claiming under a title paramount.” We are unable to agree with the lower appellate Court. Section 55(2) of the Transfer Property Act, is expressed in terms of a very absolute and clear character. It provides that, in the absence of a contract to the contrary, 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. It is clear therefore that, in the absence of a contract to the contrary, the seller is under a statutory obligation to refund to the purchaser the price of the property sold, if the purchaser is, because of the defect in the title of the seller, dispossessed from the property. The question for consideration therefore is, was there “a contract to the contrary” in the present case, or in other words, is there anything in the terms of the sale-deed executed by the defendants to restrict or wipe out the aforesaid statutory obligation of the defendants? It is argued on behalf of the defendants that the clause in the sale-deed quoted above should be construed to mean that the parties had contracted that the defendants would be liable only if some one who was their partner or cosharer laid a claim to the property, and, in no other cases. We cannot agree with this contention. If the covenant in the sale-deed does not constitute “a contract to the contrary” within the meaning of Section 55 of the Transfer Property Act, the defendants are undoubtedly liable in the present case to answer the plaintiff's claim. The contract to the contrary need not be express and may be implied from the terms of the sale-deed, but it is well settled that, in order to exclude the operation of the statutory liability of the vendor a contract, covenant or agreement must so clearly be inconsistent, with the statutory rules as to lead to the inference that it had been made to qualify the generality of the law.
4. It has to be seen whether this was so in the present case. The contract, no doubt, as contained in the deed, provides for the right of the vendee to be indemnified in the event of a claim being preferred by a cosharer or partner of the vendors, but the clause is not, in our judgment, inconsistent with the statutory rule which provides for the liability of vendors even in other cases. There is nothing in the sale-deed to indicate that the plaintiff had not the right to recover the sale price in the event of being deprived of the property owing to the claim of a person other than a partner or cosharer of the vendors. To interpret the indemnity clause in the way that it has been interpreted by the lower appellate Court one would have to read into the clause some such words as “the vendors shall be liable in no other cases,” and there appears to us no justification for doing so. The clause in the sale-deed is not exhaustive of all the contingencies in which the plaintiff could be entitled to recover the sale price from the vendors. In the words of their Lordships of the Privy Council the clause was by way of
“an additional safeguard, it may have been a thing suggested by the parties to cover contingencies which were not yet wholly foreseen: vide Bhagwati v. Banarsi Das(2).”
but it does not in any way restrict the statutory obligation of the vendor provided for by Section 55(2) of the Transfer Property Act. The contrary view, no doubt, appears to have been taken in the case of Guru Prasad Das v. Narendra Naraiti Malty, referred to above in which a clause similar to the clause to be found in the sale-deed in the plaintiff's favour was construed by the learned Judges as amounting to a contract absolving the vendor from the statutory obligation imposed on him by Section 55(2) of the Transfer Property Act. No reasons have been assigned by the learned Judges in support of the conclusion arrived at by them and, for the reasons that we have given above, we, with all respect, are unable to agree with that decision. We hold therefore that the plaintiff was entitled to a decree for refund of the sale price with interest at the rate allowed to him by the trial Court. It has been stated above that the plaintiff was also granted a decree for the costs incurred by him in the suit filed by the reversioners. Those costs were incurred by the plaintiff in defending the title of his vendors, the present defendants, and therefore the vendors were clearly liable for the same. For the reasons given above we allow this appeal, set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs in all Courts, including in the Court fees on the higher scale.
K.S
5. Appeal allowed.
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