1. Upon the construction of Ex. A which is a deed of sale in favour of the 1st Plaintiff (1st Appellant) by the father of Defendants 1 to 3 the Subordinate Judge came to the conclusion that, it did not contain any express warranty of title and that the warranty implied by Section 55, Clause 2 of Transfer of Property Act was negatived by special contract to the contrary embodied in Ex. A. Ex. A recites ' it has been settled previously to dispose of by sale to you for Rs. 2,800 my right, title and interest in the marginally noted 30 acres 59 cents of land.' Then it sets out the title of the vendor beginning with a deed of sale of 16th March, 1875,exe-cuted by D, Suryanarayanaraju's wife Venkataramanaiah alias Ramaniah in favour of Chinakondaraju and next the sale, dated 21st February, 1878, by Chinakondaraju to Jagannatha Raju who sold the property to the vendor under Ex. A by a deed, dated 30th August, 1878. It goes on to state that the vendee and the others had been in possession of the land under a cowle granted by the vendor and that ' you, the vendee shall henceforward be enjoying the same hereditarily and with right of alienation by gift, sale or otherwise as you please. Removing the hindrances to this arising from my agnates or king or neighbour I shall see that the sale is given effect to in your favour without any obstruction. We understand that the phrase ' free of obstruction arising from agnates or king or neighbour or others' is the usual covenant for title used in deeds of sale in Telugu districts. But it is pointed out that if that phrase imports a general covenant for title, we must hold that the omission of the word ' others' was deliberate and meant to qualify that covenant. It is not possible to accept this contention unless the phrase was used as an absolute covenant for title it is difficult to understand what else could have been meant by providing against obstruction from vendor's agnates, the vendor being a male or from his neighbour. In our opinion the omission of the word ' others ' can make no difference in this connection. And this is made quite clear from the next clause ' I shall see that the sale is given effect to in your favour without any obstruction.'
2. The argument which found favour with the lower court was based on the fact that the previous deeds of sale of this land including the one by Suryanarayanaraju's widow are specifically recited and also on the statement in Ex. A that the ' right, title and interest ' of the vendor in the land was intended to be sold. As regards the last that must be construed with reference to the subject matter of the conveyance. What the vendor clearly wanted to convey was the fee simple of the land to which he claimed to be entitled and the phrase 'right, title and interest' does not mean right title and interest if any and the phrase could not be taken to protect a vendor who it turns out had no saleable interest at all in the property. The recital of the previous transactions which formed the links in the chain of the vendor's title has not the effect in law of warning the vendee that the vendor had no title or that he had a title liable to be defeated because of some hidden defect so as to exempt the vendor from all liability. We think Ex. A contains an express covenant for title. Even supposing that it does not, still a contract on the part of the seller would be imported by virtue of Section 55, Clause (2) of the Transfer of Property Act to the effect that the interest which he professed to transfer to the buyer subsisted and that he had power to transfer the same. We have already indicated that upon the terms of the document the Subordinate Judge was wrong in holding that a contract to the contrary could be gathered from the terms of Ex. A within the meaning ot Section 55.
3. The law is well settled that the effect of a covenant for title is not to be got rid of except by the vendor indicating to the purchaser by use of clear and unambiguous expressions that he did not mean to guarantee that he had a good title to the property and was entitled to convey the same. It will be sufficient in this connection to refer to the case of Section v. Maph 68 E.R. 859 where at p. 862 Knight Bruce V.C. says ' when the vendor sells property under stipulations which are against common right and place the purchaser in a position less advantageous than that in which he otherwise would be, it is incumbent on the vendor to express himself with reasonable clearness ; if he uses expressions reasonably capable of misconstruction, if he uses ambiguous words the purchaser may generally construe them in the manner most advantageous to himself ' and to the case of Page v. Midland 'Railway Co. (1894) L.R. 1 Ch. 11 where it is stated 'If a vendor does not intend that his covenant for title shall extend to defects disclosed to the purchaser whether on the face of the deed or aliunde the vendor must take care to word his covenant, so as in terms to cover such defects, or he must insert some clause in the deed clearly by explaining and controlling his covenant. This is in accordance with the ordinary rules of construction and with fair dealing.... There is no authority for not giving effect to the clear and express words of a vendor's covenant for title simply because a defect covered by them was disclosed by a recital in the conveyance.' The same rule of law is laid down in Raghava Aiyangar v. Samachariar (1918) I.L.W. 8 and Digambar Das v. Srimathi Nishibala Debi (1910) 15 C.W.N. 655 .
4. Reliance was placed by the learned Vakil for the respondent on a judgment of Subramania Aiyar and Davies, JJ. in Subramania Aiyar v. Saminatha Aiyar 7 M.L.J. 319. We do not find that the law is laid down differently there, All that is laid down is that an express covenant will do away with the effect of all the implied ones and that the insertion of any express covenant on the part of the grantor would qualify and restrain the force and operation of an implied covenant within the import and effect of an express, covenant. In that case it was held that there was a special contract by which the vendor bound himself to pay a fixed sum of money by way of damages and that the plaintiff therefore was not entitled to any other rights which the general law but for this contract would have given him. It must be taken to be well established that mere knowledge on the part of the vendee of a defect in the title of the vendor would not by itself defeat the Vendee's right on the basis of a covenant implied by Section 55 Clause (2). See Subbaraya Reddiar v. Rajagopala Reddiar (1914) M.W.N. 376 . Thekkamangalath Raman alias Kochu Podwal v. Kakkasai Pozhiyot Manakkal Karnavan (1916) 28 M.L.J. 184 and Vellayappa Rowthen v. Bava Rowthen (1916) 29 I.C. 747.
5. The next question argued before us is one of limitation and the facts which gave rise to it are as follows :--The sale to the appellants as already stated was on the 5th May 1896. The reversioners to the estate of Suryanarayanaraju to whom this property belonged and whose widow made the sale on which the present vendor's title is based obtained a decree on 30th March 1911 setting aside the widow's sale. They obtained possession on 29th November 1911. An appeal having been filed from that decree by the present plaintiff the decree of the first Court was upheld by the High Court on the 7th October 1914. The present suit was instituted on the 6th October 1917. The learned Subordinate Judge overruled the plea of limitation firstly on the ground that Article 97 which lays down three years for a suit for money paid upon an existing consideration which afterwards failed, from the date of the failure applied, and following the decision of this Court in Rajagopalan v. Thiruppanandel Tambiran (1909) 17 M.L.J. 149 he held that time Would be counted from the date of the decision of the High Court, that is 7th October 1914. So far as Article 97 is concerned according to a very recent decision of the Privy Council in Juscurn Bold v. Pirthi Chaand Lal Chowdhury I.L.R. (1918) Cal. 670 time would run from the judgment of the first Court and would not be postponed till the decision of the Appellate Court. Sir Lawrence Jenkins who delivered the judgment of the Board says at page 678 ' Both Courts have held that the failure of consideration was at the date of the first Court's decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor its operation interrupted where the decree on appeal is one of dismissal.' The ruling of this Court relied on by the Subordinate Judge and other rulings to that effect must therefore to this extent be held not to be good law. But we think that the Subordinate Judge was right in applying Article 116, which allows 6 years for a suit for compensation for the breach of the contract in writing registered from the date of the breach. In this case there is not only an express covenant for title but also one for quiet enjoyment and that latter covenant must be taken to have been broken when the plaintiff was dispossessed and possession was given to the reversioners, i.e., on the 29th November 1911. In the case before the Judicial Committee above referred to it was also contended that the period of limitation should be taken to have begun to run when the plaintiff's possession was lost. But they held that the quality of possession acquired by the purchaser in that case (it was apparently merely formal and not actual possession) was such as to exclude the idea that the starting point was to be sought in the disturbance of possession. But that could not be predicated of the possession of the present plaintiffs who were in actual possession and enjoyment of the property until dispossessed in execution of the decree obtained by the reversioners. It has been held in some cases that where a deed of sale is found to be void ab initio the cause of action for breach of covenant for title arises on the date of the sale See Venkata Narasimhulu v. Peramma 5 M.L.J. 32 if the suit is one covered by Article 62. But in this case it could not be said that the cause of action for compensation for breach of covenant for quiet enjoyment arose on the date of sale. The sale was not void ab initio but only voidable at the instance of the reversioners. The covenant for quiet possession could not be said to have been broken until the date of disturbance of the plaintiff's possession.
6. The appeal must be allowed and the plaintiffs will have a decree for damages which will be assessed as follows : Rs. 2,800 the price which the first plaintiff paid for the property plus interest on that amount at six per cent, from the date of dispossession, namely, 29th November 1911, plus the amount of mesne profits which they had to pay under the decree in the reversioner's suit, namely, Rs. 1,071 and also costs paid by them under that decree amounting to Rs. 1,272-10-0. The appellants will have their costs from the respondents both in this and in the lower Court.