1. These three appeals arise out of a suit filed for the recovery of a sum of Rs. 3,581-5-9. It is necessary to state a few facts in order to understand as to how the suit came to be filed.
2. One Subbareddi the predecessor-in-interest of the defendants 1, 2, and 3 sold 63 cents of land to Balaramareddi, the father of the plaintiffs 1 to 4 and the husband of plaintiff No. 5 for Rs. 651/- under Ex. A. 1 dated 15-3-1927. After this the trustee of a temple filed a suit being O. S. 134/1941 on the file of the District Munsif's Court, Nellorc, stating that the 63 cents sold by Subbareddi was temple property and prayed for recovery of possession of the property from the present plaintiffs' father. The suit, after trial, was decreed by the trial court. There was an appeal to the first appellate court and a further second appeal to the High Court and the decree was confirmed by the High Court in S. A. No. 1235 of 1946 on 15-7-1949.
Alter the decree had become final, the plaintiff surrendered possession to the trustee on 1-8-1949 and also paid the mesne profits amounting to Rs. 432-13-9 being the amount decreed to the trustee of the temple. He also paid the taxed costs amounting to Rs. 320-10-0. While things were going on like this, Subbareddi the original vendor died leaving a will, Ex. B. 3 dated 29-4-1933 under which he bequeathed all his properties to his monther-in-law Seshamma. This Seshamma in her turn bequeathed a portion of the properties that she got under the will of Subbareddi, in favour of defendant No. 3 under Ex. B. 4 and the residue in favour of defendants 1 and 2.
3. The present suit was brought by the plaintiffs seeking to recover the amount that Balaramareddy paid for the 63 cents of land and also the amount paid as mcsne profits to the trustee and the costs under the decree of the High Court. The claim was based upon the covenant for good title and quiet enjoyment in the document of sale in favour of the father of the plaintiff, P. W. 4. Defendants I to 3 denied the liability and alternatively contended thatthe liability, if any, of the defendants could be only to the extent of half the amount, because of the fact that there was an undivided brother of the late Sub-bareddi viz. defendant No. 6 who was also liable to contribute to the damages if the delendants were held to be liable.
4. The trial court held that the defendants were liable by reason of the fact that they were in possession of the properties of Suhbareddi and the covenant in the sale deed gave the right to the vendee to make good the damages that he had suffered by recovering the amounts that he had to spend from those in possession of the property of Subbareddi. The lower appellate court held that the defendants were liable because of the fact that they had taken the property of Subbareddi and they would be deemed to be the legal representatives of Subbareddi.
5. These appeals have been taken to this Court, one by the plaintiff, being S. A. 138 of 1957, one by defendants 1 and 2 being S. A. No. 815 of 1956 and another by the third defendant being S. A. 29 of 1938. Plaintiffs appeal relates to that portion of the judgment of the lower appellate court by which it disallowed the claim for mesne profits and also the costs incurred by the plaintiff, while allowing only the taxed costs. The appeal preferred by the 1st and 2nd defendants is against the decree mating them liable while defendant 3 in his appeal contended that he was only a specific legatee having got one specific item of properly under the will of Seshamma and, therefore, could not be called the legal representative or heir of Subbareddi and as such no decree could be passed as against him.
6. The argument advanced on behalf of defendants 1 and 2 is that the sale deed executed by Subbareddi speaks of the vendor and his 'Varasulu' undertaking to make good any loss that may be sustained by the vendee and as such it is only the heirs at law that could be proceeded against under the covenant for good title. It was argued that the position of defendants 1 and 2 was that of devisees under a devisee and they could not be equated to that of an heir or 'varasulu' under law. This argument is answered by the counsel for the plaintiff to say that the word 'varasulu' includes persons who had taken the property under the will of the owner.
7. There can be no doubt that damages upon covenants for title could be recovered in the event of the vendor's death, against his estate. What is being urged now is that a devisee's devisee cannot be brought under the category of 'Wariz' or heir.
8. Section 55 of the Transfer of Property Act deals with the rights and liabilities of the buyer and seller and paragraph 2 of Section 55 introduces a warranty of title in all sales. The seller shall be deemed to contract with the buyer that the interest which the former professes to sell subsists and further that he is competent to transfer the same. The benefit of this rule is annexed to and goes with the interest of the transferee. Such benefit is exercisable by every person in whom the interest in the property sold has vested.
The covenant for good title could be enforced by any person in whomsoever the properly vests. The question is as to whether such right is enforceable as against all persons in possession of the property whoclaim to be in possession under a wilt executed by the legatee who in turn came to be in possession of the property under a will of the original owner. In other words these persons are legatees under the universal legatee.
9. This is a statutory obligation incurred by the original vendor. The word 'obligation' has been interpreted to mean an act which binds a person to some performance. In this case the obligation can be said to be to make good the loss or damage caused to the vendee occasioned by the defect in title in the property conveyed. The general rule is that the representatives of a deceased debtor are liable to the extent of the assets which come into their hands upon all contracts of the deceased undischarged at his death. Chapter 17 of the Indian Succession Act deals with payment of liabilities in respect of the subject of the bequest. Section 167(1) says that where property specifically bequeathed is subject at the death, of the testator to any pledge, lien or encumbrance created by the testator himself, then unless contrary intention appears by the will, the legatee, if he accepts the bequest shall accept it subject to such pledge or encumbrance and shall be liable to make good the amount of such pledge or encumbrance.
It may be stated that the liability to discharge the debts of the person from whom property is received is confined only to the legal representative or the heirs at law. If, therefore, these persons do not come under the definition of heirs or legal representatives, they will not be liable. Could the defendants be regarded in law to represent the estate of the deceased vendor or could they be regarded as persons who have intermeddled with the estate of the deceased. The persons or class of persons in-. dicated by the expression 'legal representative' would depend upon the context.
It would include persons who have taken on themselves the duties and responsibilities which belong to the office of an executor or administrator. It includes the universal legatee. In some cases it might include persons in de facto possession of the entire estate of the deceased. But it can never include trespassers. Likewise it cannot be said to include persons who take possession of the property from the legatees of a part of the estate., It would be useful to refer in this regard to a decision of the Madras High Court in Natesa Sastrigal v. Alamelu Achi, : AIR1950Mad541 .
10. The facts briefly of that case were that One Chivakami Achi had an order for restitution of a sum of Rs. 5,000 and odd as against one Sivarama Krishna Iyer who died leaving a will under which he disposed of his property in different ways. One of such properties disposed of by him was a house in Kumba-konam. So far as this house was concerned, he gave a life estate in the house to the widow Dharmambat and the remainder to his wife's sister's daughter, Kup-palu Ammal and her heirs. Dharmambal the widow surrendered her life estate in favour of Kuppalu. Ammal. Kuppalu Ammal died and her sons obtained possession of the house after her death.
The decree-holder Sivakarni Achi died and her daughter Alemelu Achi succeeded. This Alemelu Achi filed an application in the Court of the District Munsif, Mayavaram and prayed for the transfer ofthe decree for execution to the court of the Munsifat Kumbakonam. She filed an application wherein she prayed that four other persons might be added as respondents they being brother's sons of Shivarama Krishna Iyer and two others being the sons of Kup-palu (the wife's sister's daughter). These were added as legal representatives of the original debtor. Originally the petition was dismissed as being barred by limitation but when the matter came to the High Court, Byres J., held that no question of limitation arose and remanded the case for decision on the merits.
After the case came to the trial court on remand, an objection was taken that the sons of Kuppalu were not the legal representatives of Sivarama Krishna Iyer. This objection found favour with the trial court and the matter came up to the High Court. Govinda-raja Chari J., reversed the decision of the Court below holding that they were the legal representatives of Sivaramakrishna Iyer. On appeal Horwill and Balakrishna Iyer JJ., differing from the decision of Govindarajachari J. held that Kuppalu's sons could not be regarded as legal representatives of Sivaramakrishna Iyer.
It may be mentioned that the persons against whom the decree was sought to be enforced were the persons who got the property as heirs of a legatee of a part of the estate of Sivaramakrishna Iyer. The same is the case in the appeal before me. The persons in possession hold the property, under the will of the mother of the original vendor Subbareddi who in turn was herself a legatee. The mere fact that the appellants are in possession of the estate of Subbareddi cannot justify the Court holding that they are the legal representatives. It is not every person in possession of the testator's estate who is an intermed-dler so as to come within the definition of a legal representative within Section 2, Clause (11) of C. P. C.
That the present appellants are not the heirs is not disputed because admittedly they are in possession of the property as devisee's devisee and as has already been stated they are only in possession of a part of the estate and therefore, cannot come within the definition of 'universal legatee'. No doubt if the properties were in the possession of the mother the testatrix of the will under which the present appellants have taken the property, the plaintiff would have had a cause of action as against her, she being the universal legatee. I am in respectful agreement with the learned Judges who decided the case referred to above that the class of persons indicated by the word 'legal representative' would include heirs at law svhether they take by succession or by survivorship, a universal legatee and in some cases a person in de facto possession of the entire estate.
11. The lower court has come to the conclusion that the present appellants are liable to pay for the reason that they are actually in possession of the property now. The reasoning of the lower appellate court appears to be that the fact that they are not the heirs of Subbareddi would not in any way affect the liability so long as they are in possession of the property. In my opinion this reasoning Is not correct. It, therefore, follows that the judgment and decree of the lower court will have to be set aside.
12. It is not necessary to go into the other, questions as to whether the 6th defendant, an undivided brother of Subbareddi is also liable and. whether the 3rd defendant who is in possession of a part of the estate of the deceased under the devise of the mother of Subbareddi would be liable. The further question whether the plaintiff would be entitled to recover only the taxed costs or actual costs incurred by him would also not arise for consideration in the view that I have taken that the plaintiff has no cause of action as against the present appellants.
13. The result is that the plaintiff's suit would have to be dismissed. Second Appeal 815 of 1956 by defendants 1 and 2 and Second Appeal 29 of 1958 by defendant No. 3 will be allowed and S. A. 138 of 1957 would be dismissed. In the circumstances of the case I direct each party to bear his own costs.
(These cases having been set clown this day for further consideration the court delivered the following