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H.M. Abdul Rahim Sait Vs. K.V. Kunhalan Kutty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1959)2MLJ498
AppellantH.M. Abdul Rahim Sait
RespondentK.V. Kunhalan Kutty
Cases ReferredEchboz v. Bannister
Excerpt:
.....two second appelas against the said decision of the learned district judge. section 14(b) of the sale of goods act lays down that in a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is amongst others an implied warranty that the buyer shall have and enjoy quiet possession of the goods. 'shall enjoy' implies that his possession shall not be disturbed afterwards either by the seller or any person claiming through him or even by a third person claiming under a title paramount: , the respondent, should have and enjoy quiet possession of the trees. it is common ground that the respondent was not allowed to have and enjoy quiet possession of the 104 trees by reason of the unlawful obstruction of the purchasers of the estate from..........at from any point of view, this appellant is not entitled to recover the purchase price of 387 trees. exhibits b-10 and b-13 disclose that in spite of the respondent's endeavours permission of the collector was not granted. exhibit b-14 shows that the advocates of the manager of the purchasers of the estate complained to the collector regarding the cutting of the trees and called upon the respondent to refrain from cutting on the ground that the sale of trees in the forest area without the previous sanction of the collector was void. the explanation to section 3(1)(a) of the madras preservation of private forests act (xxvii of 1949) is explicit. after prohibiting the sale, mortgage, lease or other alienations of the whole or any portion of any forest, the explanation exempts the sale.....
Judgment:

Ramaswami, J.

1. These are two connected appeals preferred against the decrees and judgment of the learned District Judge of Coimbatore in A.S. Nos. 450 and 451 of 1953, reversing the decrees and judgment of the learned Subordinate Judge of Ootacamund in O.S. Nos. 74 of 1951 and 247 of 1952.

2. The appellant before us Khan Bahadur H.M. Abdul Rahim Sait was the owner of the Salisbury Estate. There were trees in the jungly and uncultivated area of this estate. The respondent before us K.V. Kunhalan Kutty is a Moplah eking out: this livelihood by purchasing trees, felling them and vending the same. He entered into a contract with this appellant for purchasing 681 trees under Exhibits B-4 and B-5, dated 28th August, 1950 and 21st September, 1950, respectively. On the date of Exhibit B-4 an advance of Rs. 1,000 was paid by the respondent to the appellant. The trees to be purchased were selected by the respondent and his men in the presence of D.W. 1, R.J. Peter, the manager in the employ of the appellant then. The appellant had instructed his manager to prepare a list containing all particulars and Exhibit B-1 is the list of the trees to be felled and marked with chisel marks. The aggregate sale price was Rs. 6,483-8-0. The trees so marked stood inside and outside S.No. 70/6. S.No. 70/6 had been notified as a private forest coming under the purview of the Madras Preservation of Private Forests Act as amended. The parties were aware at the time of entering into this contract that the previous permission of the Collector was necessary for cutting the trees in the forest area, and Clause (a)(1) of the conditions makes the same explicit. The appellant had undertaken under Exhibits B-4 and B-5 to do all acts necessary for helping the respondent in obtaining the necessary permission from the Collector. On the date of Exhibit B-5 a sum of Rs. 1,483-8-0 was paid and the balance of Rs. 4,000 was agreed to be paid in two instalments of Rs. 2,000 each as per condition 1 (a) and I (b) in Exhibit B-5. At the time of Exhibit B-4 the estate belonged to the appellant in leasehold right, the Jenmi being the Nilambur Kovilagam, and there was no intention expressed at that stage to sell the estate in particular to any person. Clause (6) of Exhibit B-4, however, adverted to the respondent being entitled to remove only such trees as were felled by him till the date of the sale if effected by appellant and that the balance amount would be refunded to the respondent.

3. After the date of Exhibit B-4, the appellant entered into an agreement of sale of the. estate with one Suseela Anandan and of hers and it was expressly agreed that the respondent should have one year's time from 21st September, 1950, the date of Exhibit B-5, for cutting, stocking and removing the trees enumerated and described in Schedule 2 of Exhibit B-5. It was also agreed that the purchasers should give all facilities to the respondent for cutting, stocking and removing the trees from the estate. Subsequently on 20th October, 1950, the estate was sold by the appellant under the original of Exhibit B-24 and it was stipulated under the said sale that the respondent should have time till 20th October, 1951, for exploiting his contract.

4. Then three things happened, concerning which there can be no dispute. The respondent was able to cut and remove peacefully only 190 trees in the area outside S. No. 70/6. But he was unable to cut the remaining 104 trees standing thereon owing to the obstruction of the subsequent purchasers of the estate. After the sale under Exhibit B-24, the manager of the estate under Suseela Anandan and others started cultivation. Exhibits B-6, B-12 and B-16 clearly show that the said manager V.A. Krishnan Kutty obstructed the respondent from cutting the 104 trees which originally stood in the uncultivated area and which was later on brought under cultivation by the said manager. Then in regard to the 387 trees standing inside S. No. 70/6, the respondent made all efforts to secure the permission from the Collector. The appellant, who had parted with the property, when the respondent was clamouring for his assistance to get the permission of the Collector, loftily told him that ' If any enquiry comes from the Collector, I will certainly help you as far as I can' : vide Exhibit B-13, dated 23rd December, 1950. There is no dispute that the Collector's permission was not forthcoming and the trees to be cut stand there even now. In other words, out of 681 trees purchased by this respondent, he was able to cut only 190 trees. He could not cut 104 trees owing to the obstruction of the purchasers of the estate and 387 trees could not be cut, because the Collector would not give the permission. The respondent by this time had paid out of the purchase price of Rs. 6,483-8-0, Rs. 1,000 by way of advance on the date of Exhibit B-4, Rs. 1,483-8-0 on the date of Exhibit B-5 and Rs. 1,000 on 23rd December, 1950. It is common ground that the value of 190 trees cut is Rs. 1,802-8-0.

5. In these circumstances, the appellant and the respondent filed cross-suits. The appellant's suit O.S. 74 of 1951 was filed on the allegation that for the 681 trees sold to the respondent for Rs. 6,483-8-0, he had received only Rs. 3,483-8-0 and that the respondent is liable to pay him Rs. 3,142-4-0, which includes the interest on the balance and for which amount the suit was laid. The defence of the respondent was his claim in the cross-suit O.S.No. 247 of 1952, viz, that he was bound to pay the appellant only for the 190 trees cut valued at Rs. 1,802-8-0 that, as a matter of fact, he had paid Rs. 3,483-8-0 and that therfore the appellant is liable to refund to him Rs. 1,681 for which the said suit was Jaid.

6. The learned Subordinate Judge upheld the contention of the appellant and dereed his suit and dismissed the respondent's suit. On appeal the learned District Judge upheld the contention of the respondent and decreed his suit and dismissed the appellant's suit. The defeated Khan Bahadur Abdul Rahim has preferred these two second appelas against the said decision of the learned District Judge.

7. In these Second Appeals I am of the same opinion as the learned District Judge and here are my reasons.

8. The two points which fall for determination are: whether the respondent is bound to pay for the 104 trees standing in the uncultivated area and which trees he was prevented from felling and removing by the purchasers of the estate and which the appellant did not in any way prevent and assure quiet possession for the respondent; and secondly, whether the respondent is liable to pay for the 387 trees standing inside S. No. 70/6 and for which respondent could not get the permission of the Collector for felling and removing.

9. Point I:--The property sold in this case by the appellant to the respondent was not the trees on the site on which they stood but the severed trees. Therefore, the property sold being admittedly movables, the contract in respect of the same also is governed and controlled by the provisions of the Sale of Goods Act. The contract contemplates severance by felling only subsequent to the contract. In other words, the trees were not in a deliverable state and the property in the trees did not pass on (he date of the contract, viz., Exhibits B-4 and B-5 ; see Section 20 of the Sale of Goods Act, which enacts that in an unconditional contract of sale of goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and that it is immaterial whether time of the payment of the price or the time of the delivery of the goods or both is postponed. Section 21 of the Sale of Goods Act supports the view that the property in the 104 trees did not pass to the respondent. The seller, viz, the appellant having been bound to do something to the trees for the purpose of putting them into a deliverable state viz., the appellant having been bound to refrain and from causing any obstruction either by himself or through his successors-in-interest he having committed default in this respect, the 104 trees cannot be deemed to have been put into a deliverable state. On that foot, there being a breach of the contract by the appellant, the properties in the 104 trees did not pass to the respondent. Therefore, the respondent is not bound to reimburse the sale price to the appellant. This can also be looked at from another angle. Section 14(b) of the Sale of Goods Act lays down that in a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is amongst others an implied warranty that the buyer shall have and enjoy quiet possession of the goods. 'Shall have ' implies that the buyer shall be put in possession as part of the contract of sale. ' Shall enjoy' implies that his possession shall not be disturbed afterwards either by the seller or any person claiming through him or even by a third person claiming under a title paramount: Benjamin on Sale, p. 207, Halsbury's Laws of England, Hailsham edition, volume 29, page 59; Dayal, Indian Sale of Goods Act, p. 80. Exhibits B-4 and B-5 to which reference has already been made, show that there was an express warranty that the buyer, viz., the respondent, should have and enjoy quiet possession of the trees. It is common ground that the respondent was not allowed to have and enjoy quiet possession of the 104 trees by reason of the unlawful obstruction of the purchasers of the estate from the appellant. This appellant had not lifted his little finger to assure the respondent to have and enjoy quiet possession of the goods in these 104 trees. On the other hand, it is stated the Khan Bahadur ordered and abetted the purchasers in their unlawful acts as seen from Exhibit B-n. The appellant thereby failed to afford all facilities through his successors in interest for the cutting, stocking and removal of the trees and at the time of Exhibits B-4 and B-5 Kutti did not know that the cutting, etc., would become impossible. Thereupon the Khan Bahadur became liable to compensate Kutti for the loss sustained through the appellant's non-performance of his promise thereby attracting para. (3) of Section 56, Indian Contract Act. The rights and liabilities of the parties are governed by Sections 56 and 65 of Indian Contract Act. Therefore, there was a breach by the appellant of this warranty both under the contract and under law. On that the consequences laid down in Section 59(1)(a) of the Sale of Goods Act will follow. That section expressly lays down that where there is a breach of warranty by the seller or where the buyer elects or is compelled to treat any breach of a condition on the part of a seller as breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may setup against the seller the breach of warranty in diminution or extinction of the price. Similarly under the provisions of the Sale of Goods Act wherein Sections 11 to 17 constitute a complete enunciation of the rules relating to warranties and conditions, a remedy lies for refund or damages, etc. Rowland v. Dwall L.R. (1923) 2 K.B. 500 ; Kissanchand v. Ram Pratap 44. C.W.N. 505 Echboz v. Bannister (1864) 34 L.J. C.P. 105 analogous law, Section 59(1)(a) of English Sale of Goods Act; American Law 3, Williston Benjamin on Sale, p. 984 (1950 edn.) It may be noted that this respondent was ready and willing to perform his part of the contract to cut and carry away the trees. In fact it was to his advantage to do so. It was the appellant who had given an express warranty, who failed to assure the respondent quiet possession of the goods. Therefore, the appellant cannot have the cake and eat it too. In regard to the value of the 104 trees, the remedy of the appellant only lies against the purchasers of the estate and not against this respondent and it is significant that this appellant has not even impleaded the subsequent purchasers of the estate in his suit. Therefore, Point I has been rightly decided by the learned District Judge against the appellant and his claim in regard to the 104 trees must fail.

10. Point 2:--Turning to the 387 trees, the claim of the appellant is on a worse footing. On the date when the appellant entered into the contract with the respondent, the appellant knew full well the provisions of the Madras Preservation of Private Forests Act, covering these trees standing in S. No. 70/6 and which has been notified as a private forest. The contract has been entered into by the respondent with the appellant on the explicit understanding that the appellant will co-operate with him and obtain for him the necessary permission from the Collector and this has been expressly stated in Exhibits B-4 and B-5. But notwithstanding all the efforts made by this respondent to obtain the permission of the Collector, as the correspondence filed shows, he failed to secure the same. The frantic efforts made by him to obtain the appellant's co-operation to obtain the permission of the Collector were rewarded only by the lofty sentiment expressed by this appellant that if any enquiry came from the Collector he would certainly help the respondent as far as he could. There can be no doubt that looked at from any point of view, this appellant is not entitled to recover the purchase price of 387 trees. Exhibits B-10 and B-13 disclose that in spite of the respondent's endeavours permission of the Collector was not granted. Exhibit B-14 shows that the advocates of the Manager of the purchasers of the estate complained to the Collector regarding the cutting of the trees and called upon the respondent to refrain from cutting on the ground that the sale of trees in the forest area without the previous sanction of the Collector was void. The Explanation to Section 3(1)(a) of the Madras Preservation of Private Forests Act (XXVII of 1949) is explicit. After prohibiting the sale, mortgage, lease or other alienations of the whole or any portion of any forest, the Explanation exempts the sale or other dealing with the right to gather and remove forest produce, other than trees and timber, in the usual or customary manner for a period not exceeding two years. The Revisional Side of this Court has been replete with prosecutions by Collectors for felling timber in private forests without the previous permission of the Collector. In fact a proper construction of the Explanation to Section 3(1)(a) would leave no room to doubt that there can be no sale of trees and timber falling within the purview of the said Act without the previous sanction of the Collector, and which is not the case here. In any event, the agreement entered into by the respondent in regard to the 387 trees must be construed in the following manner, viz, that the obtaining of the permission of the Collector is a condition precedent to the payment of the price. Otherwise, we would be circumventing the Act and assuring the appellant payment for sale of property to which he would not be entitled but for the permission given by the Collector rendering the trees and timber saleable. The provisions of Sections 56 and 65 of the Indian Contract Act would be attracted to non-suit the appellant and enable the respondent to claim back the advantage which the appellant had derived ; (See the discussion in Chitaley and Appu Rao's Contract Act, Vol. III (Corpus Juris of India), Section 56 Notes 1 and 2 and 4 & 5 and 9 to 12 and Section 65 Note 4, whereunder the entire case-law is set out analytically and exhaustively). The appellant would be bound to restore the said advantage or make compensation for the same to the respondent from whom he had received the money. Every contract should be supported by consideration and there should be quid pro quo or return benefit for a contract to become enforceable. In regard to 387 trees admittedly there was no return benefit to the respondent. In regard to the prerequisite for the sale of these 387 trees, viz., the appellant undertaking that he would afford all facilities to the respondent for cutting, stocking and removing the trees from the land, it was not admittedly fulfilled by the appellant and on that ground also the contract in regard to the same must fail. Therefore looked at from any point of view the case of the appellant in regard to the recovery of the price of the 387 trees must also fail and the conclusion of the learned District Judge is right.

11. On these conclusions it follows, that the respondent will be entitled to a refund of the amount claimed in his suit.

12. The net result of the analysis is that the decrees and judgment of the learned District Judge arc irreproachable and they are confirmed and these Second Appeals arc dismissed with costs, one set. No leave.


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