1. The plaintiff purchased some property from defendants 1 to 3 under Ex. A. After the sale a suit was brought by one Ammani Ammal for half the share of the property on the ground that she was entitled to it as the heir of her deceased son. That suit was decreed by the 1st Court on 20th March, 1913. There was an appeal against the decree which was decided on 13th April, 1914 and the Second Appeal was decided on 1st March, 1917. The plaintiff who was not given possession under the sale sued for possession of the property and he was given a decree for possession of half the property on 22nd December, 1913. The present suit was lied on 10th November, 1917.
2. Mr. Patanjali Sastri, for the respondents, contends that the suit is barred by limitation. His contention is that either Article 62 applies or Article 97. Under Article 97 of the Limitation Act a period of 3 years is given for bringing a suit for money paid upon an existing consideration which afterwards fails. The Subordinate Judge has not definitely held that Article 116 applies. His view is that the matter was not finally disposed of till 1st March, 1917, when the Second Appeal was decided. This view of the law is wrong. The consideration for the sale failed when the decree of the First Court was given in Ammani Ammal's favour, i.e., on 20th March, 1913 [vide Juscurn Bold v. Pirthichand Lal Choudhury ILR (1918) C 670.
3. The next question is whether Article 116 applies. In this case the document is a registered document and the plaintiff got only half the property and he did not get a title to the other moiety. Mr. Patanjali Sastri's contention is that there was no covenant in writing for good title. He urges that the statutory covenants embodied in Section 55(2) of the Transfer of Property Act should not be imported into the sale deed as Section 55 speaks only of a contract. I am unable to accept this contention. The statutory covenants are attached to the transaction of sale and not merely to the contract which precedes the sale. To hold that the statutory covenants under Section 55 apply only to contracts and not to sales would be defeating the object of Section 55. If the statutory covenants do not apply to the actual sale itself, the vendor who executes a sale deed is relieved of the liability which is cast upon him by the statute under Section 55. No doubt under the English conveyancing practice all the covenants of title and covenants for quiet enjoyment are set out in the deed itself, but under the Transfer of Property Act the technicalities of the English conveyancing have been done away with and in the case of a sale of property all the covenants which are usually found in an English conveyance deed are to be read into the sale deed by reason of the provision of the Transfer of Property Act. The contention of Mr. Patanjali Sastri is that Article 116 speaks only of breach of contract in writing and does not apply to a sale deed. The sale itself may not be properly called a contract in writing but contracts which are to be contained in a sale deed or such terms of contract which the law imports into a sale are contracts within the meaning of Article 116 and a sale deed comes within Article 116 of the Limitation Act. It is unnecessary to discuss this matter further as a bench of this Court has, after a very careful consideration of the cases, come to the conclusion that a suit for compensation for breach of express or implied covenant for title and quiet enjoyment in respect of a sale deed executed after coming into force of the Transfer of Property Act is governed by Article 116 of the Limitation Act. [Arunachala v. Ramaswami ILR (1914) M 1171. With the reasoning of the learned Judges I entirely agree and I hold therefore that Article 116 applies to this case.
4. It is next contended by Mr. Patanjali Sastri that the document itself has by express terms made the statutory covenants as to title of quiet enjoyment inapplicable. I do not think the document is capable of that interpretation are only capable of meaning that the transferors had not created any encumbrance on the property and this does not mean that the vendors had no title to convey. There is nothing therefore in this contention.
5. The Subordinate Judge accepted the contention of the appellant and has in the concluding portion of the judgment directed the plaintiff to surrender the moiety of the property in his possession before he could get the amount of consideration for the other moiety which he had lost. I do not see why the plaintiff should surrender the half to which he has got a good title when he sues for damages for breach of the covenants of title in respect of the other half. The Lower Court's decree should therefore be modified by deleting the portion of the decree as regards the surrender. The words to be omitted are 'On plaintiff surrendering possession of the lands which he obtained in pursuance of the decree in O.S. No. 300 of 1912 on the file of the District Munsif's Court, Arni. on or before the 7th day of June, 1922.'
6. As regards the amount payable to the plaintiff by the defendants both the vakils have consented to put in a statement. It is agreed by both parties that the amount payable to plaintiff is Rs. 702-4-7. The plaintiff will have interest at 6 per cent, from date of plaint. Para. 2 of the Lower Court's decree to be deleted. Parties will pay and receive proportionate costs throughout.