Venkatasubba Rao, J
1. The plaintiff purchased the property in question from the defendant in 1920. At that time there was a subsisting mortgage on the property but that fact was not disclosed to the Plaintiff. Subsequently in 1929 the mortgagee brought a suit upon his mortgage, obtained a decree and the plaintiff was in due course dispossessed in November, 1930. In the present suit filed in December of that year, the plaintiff claims compensation for the loss sustained by him.
2. The two questions that arise are (i) in regard to limitation, which is the starting point - the date of the conveyance or the date of the dispossession? and (ii) what is the proper measure of damages?
3. The Petitioner's Counsel refers to the principle laid down by Bramwell, B in Spoor v. Green (1874) L.R. 9 Ex 99 and confirmed in subsequent English decisions (see Turner v. Moon (1901) 2 Ch. 825 and Dart's Vendors and Purchasers 8th Edn. Vol. 2, p. 663) that in an action for damages for breach of the covenant for title, the Statute of Limitations commences to run from the moment of the delivery of the conveyance. But it has been held in this country in a series of cases that where, although the title is imperfect, the vendee has been put in possession of the property, the cause of action for the return of the purchase-money arises on the disturbance of possession. I may quote the following passage from the judgment of Phillips, J., in Meenakshi v. Krishnaroyar (1915) 32 I.C. 176:
In Subbaraya Reddiar v. Rajagopala Reddiar (1914) M.W.N. 376 it was held that a sale cannot be said to have been without consideration and consequently void ab Initio when possession has been given under the contract of sale, and that the cause of action for return of purchase money arises on the distrubance of possession.
4. In Mahomed Ali Sheriff v. Venkatapathi Raju : (1920)39MLJ449 , Sarvo-thama Rao v. Chinnasami Pillai I.L.R.(1918) 42 Mad. 507 : 36 M.L.J. 157 and Sankara Variar v. Ummer : (1922)43MLJ721 .
5. As regards Juscurn Bold v. Pirthi Chandlal Choudhary it is sufficient to say that, as has been repeatedly pointed out, their Lordships of the Judicial Committee exclude from consideration the case where the purchaser obtains possession under the contract of sale. The observation from the judgment which I quote below (I underline the words 'retain possession') makes this point clear:
There may be circumstances in which a failure to get or retain possession, may justly be regarded as the time from which the limitation period should run, but that is not the case here. The quality of the possession acquired by the present purchaser excludes the idea that the starting point is to be sought in a disturbance of possession.
6. I must therefore hold that the suit is not barred by limitation. As regards the measure of damages, it is well-settled that the value of the property at the date of the breach and not at the date of the sale, is the proper criterion:
The measure of damages for breach of a covenant for quiet enjoyment. is what the covenantee has lost in consequence of the breach of covenant; that is to say, in cases of an entire eviction the value at the date of the breach of the property so taken away from him.
7. William's Vendor and Purchaser 3rd Ed. Vol. 2 p. 103. See also Jaikishen Das v. Arya Priti Nidhi Sabha I.L.R.(1920) 1 Lah. 380. I see no reason to depart from this well-recognised principle. On the evidence before me I must hold that the damages to which the plaintiff is entitled, is Rs. 90, and in modification of the Lower Court's decree. I pass judgment in his favour for that sum and full costs in the Court below; in this Court I direct each party, to bear his costs.