Skip to content


Sri Rajah Venkata Rangayya Appa Rao Bahadur Zemindar Garu and ors. Vs. Sri Rajah Bommadevara Satyanarayana Varaprasada Rao Naidu Bahadur Zemindar Garu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in60Ind.Cas.164; (1920)39MLJ316
AppellantSri Rajah Venkata Rangayya Appa Rao Bahadur Zemindar Garu and ors.
RespondentSri Rajah Bommadevara Satyanarayana Varaprasada Rao Naidu Bahadur Zemindar Garu and anr.
Cases ReferredGreat Western Railway v. Fisher
Excerpt:
.....effect of these words is to impose upon the covenantor the duty of indemnifying the plaintiff from costs in suits like this in which he was obliged to defend his title to the village. ' now, we are clearly of opinion that, even if the first covenant is not clear, these words are sufficiently wide to cover the present claim because a suit has been filed and loss has accrued on that account to the plaintiff who has had to defend the suit at great expense. we are only concerned in this case with the practice in cases of indemnity such as the present and with regard to such practice it appears to be well settled law in england that a party is entitled to recover costs as between solicitor and client and it obviously must be so because unless it were so there would be really no indemnity at..........any claim or file any suit regarding the title and interest of the property sold and if by such claim or suit any sort of loss should accrue to your title or enjoyment all such obstructions we will remove at our cost and secure to you absolute right and enjoyment.' now, although the language used here is somewhat cumbersome we agree with the learned subordinate judge that the effect of these words is to impose upon the covenantor the duty of indemnifying the plaintiff from costs in suits like this in which he was obliged to defend his title to the village. however the case does not stop there because the deed goes on. ' hereafterwards, (b) if anybody should file suit, or (c) if there should be any dispute regarding the nature of the grant or of the tenure of the village from the.....
Judgment:

1. This is an appeal from the judgment of the Subordinate Judge of Bezwada in a suit brought by the zemindar of South Vallur against the defendants from one of whom he had purchased a certain village to recover the costs which he was put to in defending his title to the village against a third party. He bases his claim upon an indemnity contained in a deed of sale executed by the second defendant who was the actual vendor and also on a covenant contained in an indemnity bond executed by 1st, 3rd and 4th defendants her husband and 2 sons respectively.

2. The Subordinate Judge has given judgment for the plaintiff and we think he is right. The covenants in the deed of sale and in the indemnity bond are practically the same, and the covenant in the sale deed is accurately translated in para. 8 of the Subordinate Judge's judgment. It says 'if the previous owners or any others setting up any rights by transfer from them or any other claiming themselves to be their heirs or any others claiming under any other title should lay any claim or file any suit regarding the title and interest of the property sold and if by such claim or suit any sort of loss should accrue to your title or enjoyment all such obstructions we will remove at our cost and secure to you absolute right and enjoyment.' Now, although the language used here is somewhat cumbersome we agree with the learned Subordinate Judge that the effect of these words is to impose upon the covenantor the duty of indemnifying the plaintiff from costs in suits like this in which he was obliged to defend his title to the village. However the case does not stop there because the deed goes on. ' Hereafterwards, (b) if anybody should file suit, or (c) if there should be any dispute regarding the nature of the grant or of the tenure of the village from the Government or from any others and if there should accrue any losses on that account all those also we will remove at our cost and will secure to you absolute right and enjoyment.' Now, we are clearly of opinion that, even if the first covenant is not clear, these words are sufficiently wide to cover the present claim because a suit has been filed and loss has accrued on that account to the plaintiff who has had to defend the suit at great expense. Therefore we hold that both the clauses contain a covenant of indemnity which the plaintiff is entitled to enforce in this suit.

3. The only other question which has been argued before us is whether the plaintiff is entitled to recover only the taxed costs or costs between solicitor and client or what corresponds to that in this country, the actual costs which he has had to pay to his own legal adviser. We are only concerned in this case with the practice in cases of indemnity such as the present and with regard to such practice it appears to be well settled law in England that a party is entitled to recover costs as between solicitor and client and it obviously must be so because unless it were so there would be really no indemnity at all. That has been laid down by the high authority of Lord Tenterdon in Smith v. Compion (1832) 3 B & Ad, 407 by Kelly, C.B., and Martin, B and Piggot, B in Howard v. Lovcgrove (1870) L.R. 6 Ex. 43 and Buckley, J., as he then was, in Great Western Railway v. Fisher (1905) 1 Ch. 316 . The system of awarding costs in litigation is somewhat different in England from what it is in India. There is no system here of taxing costs as between a client and his vakil. We do not lay down that under such contracts anything which a party had agreed to pay or actually paid could be recovered without regard to whether his conduct was reasonable or not; there can be no question here that what was paid was reasonable having regard to the condition of things prevailing here and was such a payment as would have been allowed if there were taxation here as between client and vakil corresponding to taxation between solicitor and client in England. No better proof of that need be mentioned than the fact that the defendants approved of the engagement of the late Mr. V. Krishnaswami Aiyar, one of the leaders of the Bar in Madras, and when he became a Judge they suggested to the plaintiff that he ought to get another vakil of the same position at the bar which of course meant that he should be retained upon somewhat similar terms. It cannot be suggested that there was anything unreasonable in the conduct of the plaintiff or that he incurred any expense which he ought not to recover under his contract of indemnity.

4. We may also mention as regards this point that notice was given at a very early date to the defendants in this suit which had been instituted against the plaintiff inviting them if they liked to come in and conduct the defence.

5. The only other point is as regards interest. The plaintiff has claimed and the Subordinate Judge has allowed interest at 9 per cent. Having regard to the position and the general circumstances of the case we think that the rate of 6 per cent. is quite adequate and we accordingly vary the Lower Court's decree by giving 6 per cent instead of 9 per cent otherwise the appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //