1. The only question is as to the liability of the 1st defendant, jointly with the 2nd defendant against whom a decree has been given. The judgments of the lower courts exonerating the 1st defendant, proceed on the ground that he was merely a benamidar as far as the property sold to plaintiff's father was concerned.
2. The real question is whether, even assuming the 1st defends ant to have been merely a benamidar as to the property, he is not liable on the covenant mentioned in C which is in the following words :--
Should there be any hindrance in your enjoying the same we shall settle and remove such hindrance.
3. This is an express covenant by both the defendants which cannot be affected by the benami character of the 1st defendant who is equally liable thereunder with the 2nd.
4. It is contended on behalf of respondent that being a benamidar there was no consideration for the promise made by him. The consideration was clearly the purchase of the property by the plaintiffs' father.
5. In this view we do not consider it necessary to dwell upon the letter A and the proceedings taken by respondent on the pronote which was given in 1st defendant's name by plaintiffs father for the consideration amount.
6. It is next contended that there was no breach of covenant in that appellant was not actually evicted and our attention is called to Howard v. Maitland. 11 Q. B. D. 695 The observations of the Master of the Rolls in that case tend in the opposite direction; for he says ' If anybody had brought, an action against the plaintiff and recovered Judgment, I am not prepared to say that that alone might not have been a disturbance within the covenant.
7. In the present case a decree was obtained and proceedings taken in execution and it was only on paying a sum of Rs. 3,500 to the decree-holder that plaintiffs were allowed to retain possession of the property. There was therefore such hindrance as was contemplated in the covenant.
8. In allowance of this appeal we modify the decree of the lower courts by making 1st defendant jointly liable with the 2nd for the amount decreed.
9. Appellants are entitled to their costs in this Court and in the Lower Appellate Court.