1. only question is as to the liability of the first defendant jointly with the second defendant, against whom a decree has been given. The judgment of the lower Court exonerating the first defendant proceeds on the' ground that he was merely a benamidar as far as the property sold to plaintiffs' father was concerned.
2. The real question is whether, even assuming the first defendant 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.' This is an express covenant by both the defendants, which cannot be affected by the benami character of the first defendant who is equally liable thereunder with the second.
3. 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.
4. In this view we do not consider it necessary to dwell upon the letter A and the proceedings taken by respondent on the promissory note which was given in first defendant's name by plaintiffs' father for the consideration amount.
5. 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.'
6. In the present case a decree was obtained and proceedings taken in execution, and it was only on paying a sum of Es. 3,500 to the decree-holder that plaintiff's were allowed to retain possession of the property. There was therefore such hindrance as was contemplated in the covenant.
7. In allowance of this appeal we modify the decree of the lo.ver Courts by making first defendant jointly liable with the second for the amount decreed.
8. Appellants are entitled to their costs in this Court and in the lower Appellate Court.