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Vishvanath Ganesh Joshi and anr. Vs. Bala Kaku Kapadi and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1916Bom279; 34Ind.Cas.147
AppellantVishvanath Ganesh Joshi and anr.
RespondentBala Kaku Kapadi and ors.
Excerpt:
transfer of property act (iv of 1882), section 55(2) - vendor and purchaser--vendor professing to sell particular quantity or quality of property, whether bound to pay damages for errors of quality or quantity. - .....contained in the conveyance itself, or unless some fraud and deceit has been practised upon the purchaser.' the contract, which would by the terms of the conveyancing act, 1881, section 7 [which came into force after the conveyance in jolliffe v. baker(1883) 11 q.b.d. 255 : 52 l.j.q.b. 609 : 48 l.t. 966 : 32 w.r. 59 : 47 j.p. 678, be implied, is more limited than the implied contract under section 55 (2) of the transfer of property act. such implied contract would be in the nature of the warranty referred to in joliffe v. baker (1883) 11 q.b.d. 255 : 52 l.j.q.b. 609 : 48 l.t. 966 : 32 w.r. 59 : 47 j.p. 678. there can be no doubt as to the quality of the subject-matter represented in the present case. it is found by the lower court that the insertion as to the particular nature of the.....
Judgment:

Basil Scott, C.J.

1. The plaintiff, by a sale-deed of the 9th of November 1908, took a transfer of certain immoveable property from the 1st and 2nd defendants in which it was stated by the transferors that plots bearing serial numbers 2 to 4 are given for cultivation to Sayyad Ali Bjivasaheb under an oral agreement for one year on a makta (rent) of Rs. 5-12-0, and having paid the consideration money he was obstructed in his attempt to obtain possession of these plots by the alleged yearly tenants who claimed to be permanent tenants. He, therefore, has brought this suit against his vendors and the tenants to recover possession of the land from the tenants or, in the alternative, to recover Rs. 600 as damages from the vendors on account of the misrepresentation in the sale-deed as to the nature of the tenancy. It has been held that the tenants are permanent tenants, and with that question of fact we cannot interfere in second appeal.

2. The more difficult question is whether the defendants are liable to pay damages to the plaintiff in consequence of their statement contained in the sale-deed with reference to the tenancy of the occupants of the plots above mentioned. Both Courts have held that the plaintiff is entitled to damages and the lower Appellate Court has differed from the Trial Court only in granting the plaintiff substantial, instead of unsubstantial, damages, The defendants 1 and 2, who are the vendors, expressed their willingness to refund the price and cancel the sale. This, however, the plaintiff is not prepared to consent to. He only wishes for damages in respect of that portion of that land which is held on permanent tenancy. There is no doubt that there has been a serious mis-description of the plots with which we are now concerned, and that the purchaser has got something of less value than what he had reason to believe he was buying from the statement contained in the conveyance.

3. Most of the English authorities referred to do not afford much assistance in the case, because there was in them generally a stipulation in the contract made before conveyance entitling the purchaser to compensation for misdescription, and the question has arisen in England whether such compensation can be claimed after the purchaser has proceeded to completion by taking a conveyance. In such cases the question appears to have been now settled in favour of the purchaser by the decision of the Court of Appeal in Palmer v. Johnson (1883) 13 Q.B.D. 351 : 53 L.J.Q.B. 548 : 51 L.T. 211 : 33 W.R. 36.

4. Here, however, we have not got any preliminary written contract, and no express stipulation prior to conveyance. On the other hand we have in the Transfer of Property Act a provision in Section 55 (2) that '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.' Now here the seller has professed to transfer to the buyer these particular plots of land burdened only by an yearly tenancy, and the buyer now finds that they are burdened by a permanent tenancy. The profession is as to the extent of the reversionary interest of the vendor. The purchaser, therefore, would be entitled to sue upon the implied contract expressed in the sub-section which we have just referred to, and to recover damages for the breach of it. It would seem from the dictum of the Court in Jolltffe v. Baker (1883) 11 Q.B.D. 255 : 52 L.J.Q.B. 609 : 48 L.T. 966 : 32 W.R. 59 : 47 J.P. 678 that after the purchaser has taken a conveyance and the purchase-money has been paid, no action can be maintained either at- law or in equity for damages or compensation on account of errors as to the quantity or quality of the subject-matter of the sale, unless such error amount to a breach of some contract or warranty contained in the conveyance itself, or unless some fraud and deceit has been practised upon the purchaser.' The contract, which would by the terms of the Conveyancing Act, 1881, Section 7 [which came into force after the conveyance in Jolliffe v. Baker(1883) 11 Q.B.D. 255 : 52 L.J.Q.B. 609 : 48 L.T. 966 : 32 W.R. 59 : 47 J.P. 678, be implied, is more limited than the implied contract under Section 55 (2) of the Transfer of Property Act. Such implied contract would be in the nature of the warranty referred to in Joliffe v. Baker (1883) 11 Q.B.D. 255 : 52 L.J.Q.B. 609 : 48 L.T. 966 : 32 W.R. 59 : 47 J.P. 678. There can be no doubt as to the quality of the subject-matter represented in the present case. It is found by the lower Court that the insertion as to the particular nature of the lessees' holding in the transfer-deed was made at the desire of the purchaser. We think, therefore, that there is a clear case of a broken contract or warranty for which the purchaser is entitled to claim damages without rescinding the purchase. The damages have been fixed by the lower Appellate Court, and the decision upon that point has not been attacked on any ground of law, and is, therefore, binding upon us. We affirm the decree and dismiss the appeal with costs. Separate sets of costs. Defendants 1 and 2 must pay half the costs of the plaintiff throughout. In other respects the decree is affirmed. Respondent No. l's cross-objections 3 and 4 are allowed to be withdrawn as they do not exist for want of notice.


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