1. This is a claim for damages for breach of a covenant of title contained in a sale deed dated the 16th January, and registered on the 16th March, 1940. The purchaser who is the plaintiff is the mother of a family of money-lenders and this transaction marks the end of a stage in a long 11st of transactions between the two defendants and the family. Earlier in August, 1939, a draft sale deed was prepared in similar terms in which a son of the plaintiff was to be the purchaser and by which the interest of the defendants in a certain house was to be conveyed in consideration of a sum of Rs. 35,000. In that draft the fact that an attachment subsisted on this house in respect of the second defendant's half share is specifically mentioned. No reference to the attachment is made in the subsequent deed of January, 1940, now in question. The silence is not without significance in the light of after events, and perhaps explains the reason why the mother was substituted as purchaser in the later document. At all events by the sale deed of 1940, the vendors, defendants 1 and 2 sold their property for a consideration of Rs. 37,000 a substantial part of which was to go in redeeming fourteen mortgages relating to the property and created as to 5 by the first defendant alone, as to another 5 by the second defendant and as to 4 by the two defendants jointly. The balance is stated in the deed to be paid in cash. The vendors covenanted that the property sold was free from any charge, lien or other encumbrances whatsoever save and except the mortgages previously mentioned which were to be discharged and they say further that the said property is not subject to any proceeding of Court, decree. attachment, maintenance decree or otherwise and so forth and they' agreed and undertook to keep the purchaser indemnified against any such claims and to make good all such loss and damages and expenses that the purchaser might suffer.
2. In July, 1941, the plaintiff received a notice from the plaintiff in a City Civil Court suit that the property had been attached on the 19th April, 1939, in O.S. No. 1001 of 1939. What had been attached as appears from the notice was ' the right, title and interest of the defendant ' (and the defendant in that suit was the second defendant in this case alone) in the property 101, Mint Street, etc. The question for the plaintiff in the present suit therefore was how to get rid of the attachment and after certain other proceedings which need not be mentioned, she agreed to pay, and apparently did pay, to the attaching creditor, the decree-holder in O.S. No. 1001 of 1939, a sum of Rs. 5,375 and she claims that sum as the damages for breach of covenant of title.
3. The first defendant appears in this suit. The second defendant has become insolvent and the Official Assignee has been impleaded. The first defendant raised two points firstly that in entering into this sale deed and making the covenant he contracted in respect of his own half share and that alone and that each vendor so contracted and that inasmuch as the money paid by the plaintiff was paid in respect of property belonging to the second defendant, the first defendant cannot be liable. In my opinion, this contention is untenable having regard to the terms of the deed. The covenant is clear and unequivocal and both the vendors pledge themselves jointly and severally under this covenant. The first defendant therefore is liable to answer the claim.
4. The second point however is in my view--and I have had considerable discussion before me--on sounder ground. The first defendant says that the plaintiff cannot claim the sum of Rs. 5,375 because even if she paid it, it was far in excess of the value of the second defendant's interest which was all that was attached. The entire property was sold for Rs. 37,000 under the sale deed. This was a price ' agreed upon by the plaintiff and must therefore represent the highest value of the property for the present purpose. The second defendant has a half share in this and one begins therefore by setting down the figure of 18,500. From this one must subtract the amount of the encumbrances which had been created on this half share. From the sale deed it appears that by five mortgages in his own name he had encumbered this property to the extent of Rs. 12,000. By a further mortgage created jointly by himself and his brother he put a further charge on to his own share of Rs. 4,250. Thus the interest attached was worth Rs. 18,500 less Rs. 16,799-7-0, that is, Rs. 1,720-9-0 and if the attachment were to be raised no more than this sum should or need have been paid. I have been pressed by Mr. Rajagopalachariar that there was no course open to the plaintiff but to pay in effect whatever the attaching creditor demanded in order to raise the attachment but from the rules relating to release of property from attachment, Order 21, Rules 59 and 60 for instance, it would appear that the plaintiff was not wholly without a shield against the demand of the attaching creditor and could have resisted any demand for more than this sum. The creditor in the City Civil Court pursued the second defendant ,. only and got a decree Only as against his share and that share, if the above arithmetic is correct, was of the value at the time of the attachment of Rs. 1,720-9-0.-This is the damage which the plaintiff has suffered by reason of the breach of covenant and there will be a decree therefore for this sum.
5. The case is surrounded by a considerable amount of doubt because, as I have stated, it is clear that the plaintiff is a woman who is either unable or unwilling to appear in Court. It cannot be doubted that her affairs are managed by others and it is clear from the documents which I have seen that this attachment was well-known to her son at any rate, long before this sale deed was brought into existence. It is all the more surprising therefore that without any notification to defendants 1 or 2 or to the Official Assignee in whom has vested the second defendant's interests, the attaching creditor should be paid off without any scrutiny apparently of the relevant figures relating to the second defendant's interest Had the matter been gone into before on this basis and the figures ascertained, it would have been clear that much less than Rs. 5,000 would be claimable. Indeed one line of argument tentatively adopted by the plaintiff's counsel suggested that the first defendant's share could also be made liable for the second defendant's indebtedness by reason of a mortgage which came into existence in 1939. In that case the encumbrance upon this property would have far exceeded Rs. 18,500 and the attaching creditor would therefore have had no real interest whatever to attach and the plaintiff could not have been made to pay any money at all. But on the way in which this suit has been based, I give a decree for Rs. 1,720-9-0.
6. I think that the suit should not have been brought here. Having regard to the provisions of Section 16 of the Madras City Civil Court Act, I disallow the plaintiff any costs and I think that the first defendant under the first proviso should be allowed his costs. The Official Assignee was jmpleaded, it is true, by leave but without any reason so far as I can see and his costs also must be provided by the plaintiff. The decree hereby granted is of course only against the first defendant. Should he fail to satisfy it the plaintiffs will be able to claim against the estate of the second defendant in insolvency.