S. Ratnavel Pandian, J.
1. The unsuccessful plaintiff in O.S. No. 109 of 1964 on the file of the Court of the Subordinate Judge, Coimbatore, is the appellant herein. In the said suit she Sued to recover from the first defendant personally and from defendants 2 and 3 from out of the family properties in their hands, a sum of Rs. 79,544 based on a contract of indemnity. According to the plaintiff, on 7th June, 1944, as per the sale deed Exhibit A-1 the first defendant, for himself and as guardian for his then minor brother Ramaswami Gounder, sold certain properties for Rs. 45,000 to the husband of the plaintiff benami in the name of one Gopalakrishnan, the fourth defendant herein. As per the terms of the said sale deed and the special undertaking therein, the vendor, the first defendant, has undertaken to be responsible for any loss that might be caused to the vendee (plaintiff's husband) or for any defect in the properties. In fact, the properties originally belonged to the plaintiff's husband and the first defendant's father had taken them from him under some arrangement and as a result of a panchayat it had been agreed that they should be conveyed back to the plaintiff's husband free of encumbrance. But, what happened was that the said Ramaswami, brother of the first defendant, on his attaining majority, filed a suit O.S. No. 178 of 1951 in sub-Court, Coimbatore against the first defendant, the plaintiff's husband and the fourth defendant, who were defendants 1, 3 and 2 respectively therein. Since the plaintiff's husband died pending suit, his widows, viz., the plaintiff herein and two others were impleaded as his legal representatives. The first defendant, instead of upholding the sale under Exhibit A-1 and supporting the plaintiff's husband, chose to remain ex parte. Likewise, the fourth defendant also remained ex parte. The suit ended in a compromise decree as per which Ramaswami was directed to be given 1|5 share in the suit properties or else the sixth defendant therein (plaintiff herein) should pay Rs. 62,500 to Ramaswami, the plaintiff therein, in full quit of all claims. The plaintiff, (6th defendant therein) promptly deposited on 16th April, 1959 itself the said sum of Rs. 62,500 into Court. Now, the plaintiff, herein has claimed that but for the compromise she would have insisted upon other claims in the previous suit and therefore the first defendant herein is bound to indemnify and reimburse the plaintiff for the payment which she was forced to make in that suit. She also claims that defendants 2 and 3, who are the sons of the first defendant, are bound by the contract or indemnity given by the first defendant even though they have created a fraudulent partition deed on 4th December, 1959.
2. According to the contentions of the first defendant, the plaintiff's husband had sold the suit properties as per the sale deed Exhibit B-1 dated 7th July, 1933 for Rs. 1,89,821-14-0 in favour of the first defendant's father Perumal Gounder, who himself was none other than the sister's husband of the plaintiff's husband. That sale deed was in fact a nominal one and possession remained with the plaintiff's husband. Perumal Gounder died in 1939, when this defendant was aged 15 and his younger brother Ramaswami 12 or 13. Even before the death of Perumal Gounder, Doraiswami Gounder, the plaintiff's husband, wanted to get documents from Perumal Gounder to establish his full ownership. Doraiswami Gounder was a powerful and influential man. In 1944, when the first defendant's marriage was being negotiated, Doraiswami Gounder threatened to forcibly stop the marriage unless the first defendant executed the documents wanted by the former. Under these circumstances, due to fraud, force, coercion and misrepresentation, the first defendant on 7th June, 1944 executed Exhibit A-1 for Rs, 45,000 and therefore the said sale deed is not valid and binding on him. Therefore, the plaintiff cannot enforce the conditions mentioned therein. Since Exhibit B-1 was nominal, Exhibit A-1 was also nominal. Since this defendant's father Perumal Gounder was helping Doraiswami Gounder financially since the latter was involved in criminal cases and was in financial difficulties, large sums were found due to the former (Perumal Gounder). Since Doraiswami Gounder did not discharge the said debts, this defendant suffered. His brother Ramaswami Gounder filed O.S. No. 178 of 1951. Since no relief was claimed against this defendant, he remained ex parte. That suit ended in a compromise under which the estate of Doraiswami Gounder was made liable to pay Rs. 62,500 being the plaintiff's share of the amount. This defendant stated that a like sum of Rs. 62,500 would also be due to him on the game date. The present suit has been started just as a counterblast to the said claim of this defendant. This defendant is not bound by the said terms of the compromise decree and is not bound to reimburse the plaintiff in this suit. The partition between this defendant and his sons is true and binding. The suit properties, according to this defendant, are not the joint family properties of Perumal Gounder, but his self-acquisitions. This defendant executed Exhibit A-1 not as a joint family manager but as guardian of his brother Ramaswami and therefore this defendant cannot be made liable for breach of any covenant of title. The suit is barred by limitation and the claim is also excessive.
3. Defendants 2 and 3 contended that they did not derive any benefit from the sale transactions and that they are not in any way liable for the suit claim. In other respects, they adopt the written statement filed by the first defendant.
4. The fourth defendant remained ex parte.
5. On the above pleadings, the following issues were set for trial:
1. Whether the covenant for title and the special undertaking given by the vendor in the sale deed, dated 7th June, 1944 are not binding upon the defendants? Is the vendor (1st defendant) liable to reimburse the plaintiff?
2. Is the compromise decree in O.S. No. 178 of 1951, Sub-Court, Coimbatore, true, valid and binding on defendants?
3. Whether the sale deed, dated 7th June, 1944 is vitiated by fraud, coercion and undue influence?
4. Whether the sale deeds of 1933 and 1944 are nominal and is the plaintiff not entitled to rely on the covenant of title, if any?
5. Whether the will alleged by the plaintiff is true, valid and binding on defendants and is the plaintiff entitled to sue?
6. What is the amount of compensation that the plaintiff will be entitled to?
7. Whether the plaintiff is entitled to any interest?
8. Whether the suit is barred by limitation?
9. Whether defendants 2 and 3 are liable to the suit claim?
10. To what reliefs are the parties entitled?
The plaintiff examined three witnesses including herself and marked Exhibits A-1 to A-12 and on the defendant's side D.Ws. 1 to 4 were examined and Exhibits B-1 to B-47 were marked.
6. The. lower Court found that though the sale-deed Exhibit A-1 contained a covenant of title and also a special undertaking given by the first defendant, it would not be binding on defendants 2 and 3 since it was a nominal document and likewise it held that sale deed Exhibit B-1 was also a nominal document and the plaintiff was not entitled to rely upon the covenant of title under Exhibit A-1. The Court held that the compromise decree in O.S. No. 178 of 1951 was true, valid and binding on the defendants. On the basis of the above findings, it was held that the plaintiff was not entitled to any compensation from the defendants. Therefore, the question of interest also did not arise. learned Counsel for the defendants in that suit conceded that the suit was not barred by limitation. Ultimately the suit was dismissed with costs.
7. Even at the first instance, before going into the contentions of the parties, we would make it clear that both parties admit that Exhibit A-1 was executed by the 1st defendant on his own behalf and on behalf of Ramaswami Gounder in favour of Doraiswami Gounder, benami in the name of Gopalakrishnan, the fourth defendant herein, and that Exhibit A-12 was also later brought about by Doraiswami Gounder as purported to have been executed by the fourth defendant in his favour and as such Exhibit A -12 was a sham and nominal document. Further, Ramaswami Gounder, the plaintiff in O.S. No. 178 of 1951, has also averred in para. 9 of the plaint (Exhibit A-2) that the sale under Exhibit A-1 was taken by Doraiswami Gounder benami in the name of the fourth defendant herein and later got it transferred in his name by Exhibit A-12 from Gopalakrishnan. Similarly, the first defendant in his written statement in this suit has not denied the allegation of the plaintiff in her plaint that the sale deed Exhibit A-1 was taken benami in the name of the fourth defendant. As already stated there is no controversy about the fact that Exhibit A-12 is only a nominal document brought about by the first defendant. Under these circumstances, we think it unnecessary to discuss any further about Exhibit A-12. Since Exhibit A-1 was admittedly taken by Doraiswami benami in the name of the fourth defendant, we shall, for the sake of convenience, refer to Exhibit A-1 as having been executed in favour of Doraiswami Gounder.
8. Mr. G. Ramaswami, appearing for the appellant-plaintiff, contended that the findings given by the Court below on issues 1, 3 and 4 that the sale deed Exhibit: A-1 would not be binding on defendants 2 and 3 as it was a nominal one, that the covenant and the special undertaking could not be enforced, that the sale deeds Exhibits A-1 and B-1 are nominal and the plaintiff is not entitled to rely upon the covenant of title under Exhibit A-1 and that Exhibit A-1 is vitiated by fraud, undue influence and coercion, are all unsustainable in law. He would further contend that in view of the decision of the trial Court that Exhibit A-1 is the outcome of the Panchayat which settled the differences between these two families, the trial Judge ought to have decreed the suit as prayed for and that it is erroneous to hold that Exhibit B-1 was a nominal sale. According to him, the defendants, who attack the compromise in O.S. No. 178 of 1951 as not bona fide and proper, cannot rely on the same compromise as a family settlement, the Court below failed to appreciate that the warranty implied in Section 55(2) of the Transfer of Property Act is absolute and in the absence of a contract to the contrary, it is irrebuttable, and the trial Judge has overlooked the position that merely because the consideration for Exhibit A-1 sale is low, the warranty claimed by the plaintiff cannot be given a go-by. He would contend that the trial Judge has not properly appreciated the evidence of the witnesses examined on the plaintiff's side in its proper perspective, and also failed to appreciate that the first defendant who had been impleaded in the suit by his brother is bound to indemnify and reimburse the plaintiff for the payment which she was obliged to make under the decree in that suit.
9. It is the common that the plaintiff deposited a sum of Rs. 62, 500 into Court on 16th April, 1959. According to the plaintiff, in pursuance of the compromise, she had paid this amount to D.W. 4 (T.P. Ramaswami Gounder) and she was damnified to that extent by the conduct of the first defendant, who is none other than the brother of D.W. 4. Hence, the plaintiff,, on the alleged breach of the covenant of title and undertaking given by the first defendant in the sale deed Exhibit A-1, has sought for the recovery of the said sum of Rs. 62,500 from the first defendant herein. The main contention of the first defendant in resisting the claim of the plaintiff, among various other grounds, is that the sale deeds Exhibits A-1 and B-1 were sham and nominal and therefore no question of breach of covenant of title or indemnity could arise in case of such sales and the plaintiff is not entitled to have any claim as prayed for in the plaint.
10. Before going into the merits of the case, we shall now mention certain salient features for the proper appreciation of the evidence and a just decision of this appeal. Deceased Doraiswami Gounder, husband of the plaintiff, purchased certain properties for a sum and consideration of Rs. 45,000 under Exhibit. A-1 a registered sale deed, in the name of the fourth defendant, vis., Gopalakrishnan, from the first defendant for himself and as guardian of his brother Ramaswami Gounder. The sale deed Exhibit A-1 is said to have been obtained benami in the name of the fourth defendant. Admittedly, Doraiswami Gounder was owning about an extent of 300 odd acres of land. Doraiswami Gounder executed two mortgage deeds under Exhibit B-9, dated 13th June,, 1921 and Exhibit B-11, dated 3rd February, 1922, each for a sum of Rs. 30,000, in favour of Perumal Gounder, father of the first defendant, Perumal Gounder, the mortgagee was directed to discharge the debts quoted in those documents. Exhibits B-7, B-8, B-10, B-12, B-13, and B-39 to B-47 are the receipts and vouchers evidencing such discharges. As the interest and principal under Exhibits B-9 and B-11 were not paid by the mortgagor, Doraiswami Gounder executed Exhibit B-1, dated 7th July, 1933 describing the said document as a (sale deed in favour of Perumal Gounder for Rs. 1,89,821-14-0. In 1939, Perumal Gounder died. After the death of Perumal, it seems that there was some trouble about the transactions embodied in Exhibit B-1. It is the case of the first defendant that Doraiswami Gounder was pressing for reconveyance of those properties, under threat. According to the first defendant, he was aged about 15 at the time of the death of his father and his younger brother Ramaswami was two or three years younger to himself. As Doraiswami was a powerful and influential man and threatened to forcibly stop the marriage of the first defendant in the year 1944 when the first defendant was aged about 19 only, the first defendant executed the alleged resale on 7th June, 1944 for a sum of Rs. 45,000 under Exhibit A-1 for himself and as guardian of his then minor brother, Ramaswami (D.W. 4) in favour of the fourth defendant the illegitimate son and nominee of Doraiswami Gounder. The fourth defendant thereafter executed a sale deed under Exhibit A-12, dated 10th June, 1946 for a sum of Rs. 45,000 in favour of Doraiswami Gounder alias Krishnaswami Gounder. According to the plaintiff, the properties are very valuable and they originally belonged to the plaintiff's husband and were taken by the first defendant's father previously under a certain arrangement and had been agreed to be reconveyed to the plaintiff's husband free of encumbrances, as a result of a panchayat, and in the sale deed there is covenant of title and a clause of indemnity regarding the properties conveyed and also a special undertaking on the part of the vendor to be responsible for any defect or loss in respect of the title to the properties conveyed. An assurance was given that the properties were free of encumbrances and the entire consideration of Rs. 45,000 had been paid by the plaintiff's husband only on the basis of the assurance and representation made by the first defendant regarding the title and indemnity as specified in the sale deed. Further, it is the admitted case that the said Ramaswami, after becoming a major, instituted O.S. No. 178 of 1951 on the file of the Subordinate Judge, Coimbatore, for partition of his half share in the properties comprised and conveyed under the sale deed Exhibit A-1, impleading defendants 1 and 4 herein and the plaintiff's husband Doraiswami Gounder, as defendants. The present defendants, 1 and 4 stood ex parte. Pendente lite Doraiswami Gounder died and thereafter the plaintiff and the other two widows of Doraiswami Gounder were brought on record as the legal representatives-defendants 4 to 6. The suit was decreed on a compromise, as per which 1|5 share in the suit properties should be given or a sum of Rs. 62,500 should be paid in full quit of the claims of the plaintiff therein (Ramaswami Gounder) on or before 29th April, 1954. Under the will, Doraiswami Gounder had bequeathed the properties only in favour of the 6th defendant therein (present plaintiff). Accordingly, on 16th April, 1959, she deposited the said amount and had the decree satisfied. Hence, she has brought this claim against the first defendant who sold the property under Exhibit A-1 on his own behalf and on behalf of his brother Ramaswami Gounder, to indemnify and reimburse the plaintiff for the payment of Rs. 62,500 which she had been forced to make, by virtue of the covenant undertaken under the sale deed. The trial Judge, accepting the evidence of the first defendant, has held that Exhibit A-1 is vitiated by fraud, coercion and undue influence. Mr. G. Ramaswami, appearing for the appellant, would vehemently urge that the finding of the learned Judge is totally incorrect in the light of the evidence and circumstances appearing in this case. He would urge that even assuming that Exhibit A-1 is a nominal document, when in pursuance of a panchayat Doraiswami Gounder had paid a sum of Rs. 45,000 for the reconveyance of the properties to perfect his title deed and when that recital was not challenged in the suit O.S. No. 178 of 1951 filed by Ramaswami Gounder and when the present first defendant chose to remain ex parte in the said suit, it could not at all be pleaded that the sale under Exhibit A-1 is vitiated by fraud, undue influence and coercion. According to him, even in case title has not at all passed, he would be entitled to get back the money. It is further submitted that the present contention raised by the first defendant in his written statement that possession of the property was always with the plaintiff's husband Doraiswami Gounder and Perumal Gounder had no possession, nor did he deal with the property as his own till he died in 1939 and that even before the first defendant's father died, there were negotiations and attempts on the part of the plaintiff's husband to obtain documents from Perumal Gounder to show that the former was still the owner of the properties, ought to have been raised even in the prior suit filed by his brother Ramaswami Gounder.
11. Therefore, according to the learned Counsel, the first defendant, who has chosen to remain ex parte in O.S. No. 178 of 1951 without raising his defence put forth now in the present suit, is not at all justified in raising the present contention that the sale deeds Exhibits A-1 and, B-1 are nominal and that Exhibit A-1 is vitiated by fraud and coercion. Exhibit A-2 is the certified copy of the amended plaint in O.S. No. 178 of 1951 on the file of Sub-Court, Coimbatore. If is averred in the said plaint by Ramaswami .Gounder. that the properties described in the schedule in that suit (which are the subject-matter of this suit also) belonged to the joint family of Ramaswami Gounder and his brother Athimuthu Gounder (first defendant) and that the properties originally belonged to Doraiswami Goundef who sold the same for the purpose of discharging the antecedent debts of Ramaswami Gounder's father Perumal Gounder for a sum of Rs. 1,89,821-14-0, by a sale deed, dated 7th July, 1933 and that therefore, after the death of Perumal Goun' der, Ramaswami Gounder and Athimuthu Gounder got the properties by survivorship and have been in possession and enjoyment thereof absolutely from 1944 and that Athimuthu Gounder, purporting to act for himself and as guardian of Ramaswami Gounder, effected a sale of the properties on 7th June, 1944 and the said sale is not valid and binding on Ramaswami Gounder or his share in the properties. Thus, it is seen that Rawaswami Gounder in that suit has challenged the transaction though consideration passed for the same on the ground that there was no necessity to sell the properties and the said sale was not for the family benefit. In the written statement filed in this case by the first defendant, it is not pleaded that no money consideration passed. In paragraph 7, of the written statement it is pleaded that in the year 1944 the lands sold under the deed were worth about Rs. 4 lakhs or 5 lakhs and the annual income from the same would be Rs. 40,000 to Rs. 50,000. In paragraph 9(c) it is averred that in O.S. No. 178 of 1951 there was a compromise by and under which the estate of Doraiswami Gounder was made liable to pay Rs. 62,500 being the plaintiff's 1|5 share of the amount if proper accounts, were taken between the estates of Perumal Gounder and Doraiswami Gounder and that in that suit it was not declared that the sale was not binding on the plaintiff therein (Ramaswami Gounder) or that there was lack of title to the properties in the first defendant herein or in the then minor Ramaswami Gounder. Further, it is averred that it did not represent the value of the share of the plaintiff in the said suit in the properties on the basis that the sale under Exhibit A-1 was not binding upon Ramaswami Gounder; the compromise further declared that if the sum of Rs. 62,500 was not paid by a particular date the plaintiff therein was entitled to a 1|5 share in the properties, Thus, it is clear from the above recital that the accounts were looked into between the estates of Perumal Gounder and Doraiswami Gounder and then it was settled that a sum of Rs. 62,500 should be paid over to Ramaswami Gounder towards his 1|5 share to which he was entitled as per the terms of the compromise. Mr. Kesava Iyengar, appearing for the respondents, would contend that the recital in the written statement that the amount of Rs. 62,500 did not represent the value of the share of the plaintiff in O.S. No. 178 of 1951 on the basis that the sale of 1944 by the first defendant was not binding upon the plaintiff, is not contradicted by the plaintiff herein in her reply statement and therefore it should be taken that this plea of the defendant is correct. We are unable to agree with the learned Counsel, because this is only the pleading of the first defendant and he has not proved it. On the other hand, the terms of compromise are clear that Ramaswami Gounder was given 1|5 share of the disputed items of properties in O.S. No. 178 of 1951 or a sum of Rs. 62,500 in full quit of all his claims. The recital in Exhibit A-1 relating to the circumstances under which it came into existence reads as follows:
The learned Judge, while dealing with issue-2, in paragraph 4 of his judgment, has observed as follows:
It is hence clear that the panchayatdars had adjusted the equities between the two families of Doraiswami and Perumal as could be gathered from the recitals: employed in Exhibit A-1, given a verdict in pursuance of which Exhibit A-1 came into existence. It appears to me that the object of compromise was to have peace or amity in these two families and that one family should not have any recourse against the other in future. Thus, the compromise effected by the panchayatdars stands on the same footing as that of a family settlement. I see no reason why such a compromise cannot be held to be binding on the defendants.
Finally he has concluded: 'In this view, I find that the compromise is true, valid and binding on the defendants'. From the above narration, it is clear that the sale under Exhibit A-1 is purely a family settlement so as to bring peace and amity between these two families, rather than a sale deed in a strict legal sense. Mr. G. Ramaswami, relying on a decision in Narayan v. Bhau Rao A.I.R. 1956 Nag. 124., would contend that the first defendant who was fully aware of the litigation in O.S. No. 178 of 1951 and when he chose to remain ex parte, cannot now put forth a plea that he is not bound by the decree in the said suit. In the above-cited decision it was held that where the vendor, who was impleaded as a defendant to a suit impeaching his title and claiming the vendee's eviction, remained ex parte though the question of title was a matter within his special knowledge, and therefore the vendee compromised the suit and subsequently filed a suit for damages against the vendor for breach of the covenant the said vendor was liable for damages, and he could not, without imputing had faith to the vendee, blame him for compromising the suit. In the action taken by Ramaswami Gounder in O.S. No. 178 of 1951, impeaching the sale deed executed by the first defendant herein on his behalf and on behalf of the then minor brother Ramaswami Gounder (plaintiff therein), it is the admitted case that the first defendant herein, who was one of the defendants therein, instead of supporting the sale in favour of Doraiswami Gounder, stood ex parte. Though the first defendant has valued the property covered under Exhibit A-1 at Rs. four lakhs or five lakhs, the sale consideration mentioned in Exhibit B-1 was Rs. 1,89,821-14-0. Mr. Kesava Iyengar would vehemently urge that the game properties are valued at Rs. 45,000 when they were sold to Doraiswami Gounder under Exhibit A-1, that this consideration is very inadequate and therefore it must be presumed that the sale deed has been brought about under fraud, undue influence and coercion. As we have discussed and concluded that the sale under Exhibit A-1 is more a deed of family arrangement than a sale deed in a strict legal sense, we are unable to agree with the learned Counsel for the respondents that the sale is vitiated on the ground that it suffers from inadequate consideration.
12. It is very curious to note that the first defendant, who sets up the case that the sale was brought about by coercion, undue influence etc., has not chosen to come to the witness box and examine himself to substantiate his plea. This non-examination of the first defendant, in our view, is detrimental to his case and no weight therefore can be attached to the evidence of the other witnesses in respect of this plea. There cannot be any dispute on the proposition that when a party pleads to certain allegations, ordinarily he must go into the witness box and give his evidence in support of such plea, unless there are acceptable reasons for his not doing so. In the present case, no reason is assigned as to why the first defendant stood outside the witness box. Mr. Kesava Iyengar would contend that since the trial Judge has believed the evidence of D.W. 1, whose sister is married to the first defendant besides the first defendant being the maternal uncle of this witness, the non-examination of the first defendant should not be taken into consideration to dislodge the finding of the trial Judge. We are unable to agree with this contention, because there is no reason, as mentioned above, for the non-examination of the first defendant who has made the serious allegation against Dorai swami Gounder. When the first defendant himself is not prepared to come to the witness box and say that Exhibit A-1 was nominal, would it be safe to accept the evidence of D.W. 1 who is a third party and stranger to the document in spite of his being the brother-in-law of the first defendant, and brand the said document as a nominal one brought about under threat, coercion and undue influence? Further, the evidence of D.W. 1 is highly interested because of his close relationship with the first defendant. For the foregoing reasons, we set aside the finding of the lower Court that the sale deed Exhibit A-1 is vitiated by fraud, undue influence and coercion, and answer issue-3 in the negative in favour of the plaintiff.
13. It is contended by the first defendant that the case of the present plaintiff's husband in O.S. No. 178 of 1951 was that the sale under Exhibit B-1 was nominal and the resale to him in 1944 under Exhibit A-1 was also nominal and therefore on the basis of the above pleading, it is clear that there was no question of any guarantee of title or indemnity for the sale in the above circumstances. Exhibit B-2 is the certified copy of the statement of Doraiswami Gounder in O.S. No. 178 of 1951. Exhibit B-3 is the copy of his deposition in the said suit. No doubt, it is the case of Doraiswami in Exhibits B-2 and B-3 that Exhibit B-1 was a nominal document. Relying on the above statements in Exhibits B-2 and B-3 it was contended by Mr. Kesava Iyengar that these two documents would conclusively prove that Exhibit B-1 was a nominal sale and consequently Exhibit A-1 also is a nominal one and therefore there is no question of any covenant of title or indemnity. learned Counsel would also bring to the notice of this Court that as per paragraph 12 of the trial Court judgment learned Counsel who appeared for the plaintiff in the lower Court, in the course of his argument, had conceded that though Exhibit B-1 cannot be construed as a nominal document in its entirety, still it was a nominal document to some extent. We feel that this fact will not help the defendants, for the reasons that we shall presently advert to.
14. It is evident that Doraiswami Gounder had borrowed Rs. 30,000 each under Exhibits B-9 and B-11 in order to extricate himself from the criminal cases and financial difficulties and subsequently as Doraiswami Gounder owed a large sum to Perumal Gounder he executed Exhibit B-1 in favour of Perumal Gounder. In paragraph 8 of the written statement the first defendant has averred that in a matter of accounting between the estates of Perumal Gounder and Doraiswami Gounder, large sums were due to the former, that Doraiswami Gounder would not properly and honestly discharge the same and that therefore he had suffered enormously. Thus, it is to be noted that even the first defendant admits the fact that there were large sums due from Doraiswami Gounder to Perumal Gounder. Whether the debts owned by Doraiswami Gounder to Perumal Gounder had any comparison to the real value of the properties conveyed under Exhibit B-1 or not, the fact remains that Exhibit B-1 came into existence only in discharge of the amount due to Perumal Gounder. The fact that the value of the properties was much more than the debts owed by Doraiswami Gounder to Perumal Gounder would in fact probabilise the fact that there should have been an understanding between the parties that Perumal Gounder should reconvey the properties to Doraiswami Gounder on the latter discharging the above debts. It would transpire from the evidence of P.W. 2 in this case that there were disputes between Doraiswami Gounder and Perumal Gounder in respect of the properties and the income and they finally agreed that Doraiswami Gounder could take the properties on payment of Rs. 45,000 in a period of five years and that the said decision was arrived at in a panchayat in the presence of himself, one Muthuswami Gounder (the village Munsiff of that place) one Velliangiri Gounder, one Ananda Gounder (Karnam and Ramakkal, the step-mother of Doraiswami Gounder. It is his evidence that in pursuance of the said settlement. Exhibit A-1 was executed by the first defendant and certain panchayatdars had attested the same. According to this witness, the panchayatdar Velliangiri is dead and the other persons, vis., Muthuswami Gounder and Ananda Gounder are unable to move on account of their old age. The criticism that is levelled against this witness is that he has not attested the document Exhibit A-1 and therefore his evidence that he was present at the time of the panchayat cannot be accepted. After going through the evidence of this witness, we do not find any reason to reject or discard the testimony of this witness. The fact that there was a panchayat cannot be disputed now since Exhibit A-1 itself contains a recital that the said document came into existence only as per the decision arrived at by the panchayatdars in order to settle the differences between Perumal Gounder and Doraiswami Gounder. The defendants rely on Exhibits B-2 and B-3, the statement and deposition of Doraiswami Gounder in O.S. No. 178 of 1951 for the purpose of showing that Doraiswami himself has stated that Exhibit A-1 was a nominal document. But it may be noted that in Exhibit B-2 Doraiswami Gounder had narrated the circumstances under which Exhibit A-1 came into existence. He has specifically mentioned therein that an arbitration took place in the presence of Velu Gounder, Muthuswami Gounder, Tirugnanasambandam Pillai and some of the respectable friends and well-wishers of his family. Similarly in the evidence of Doraiswami Gounder under Exhibit B-3, there is reference to the Panchayat that took place. Thus, there is positive proof that what all P.Ws. 1 and 2 have stated regarding the circumstances under which Exhibit A-1 came into existence, which corresponds with what is stated in Exhibits B-2 and B-3, has to be accepted. The finding of the learned trial Judge that he was unable to believe the evidence of P.Ws. 1 and 2 is, in our view, not correct. It is not the specific case of the defendants that no consideration passed under Exhibit A-1. In this connection, we may point out that no allegation has been made in their written statement that the consideration under Exhibit A-1 was inadequate. Irrespective of the fact whether the consideration was adequate or inadequate, the fact remains that a sum of Rs. 45,000 was the consideration for the execution of the said document. The recital in Exhibit A-1 would show that Doraiswami Gounder was asked to discharge certain debts referred to therein and the fact that Doraiswami Gounder had fully paid and discharged the entire amount of Rs. 45,000 for obtaining the reconveyance of his properties, is also not disputed. The trial Judge himself has stated that he was inclined to believe that Exhibit A-1 is the outcome of the panchayat which settled the differences between these two families. When these circumstances and the evidence of the witnesses are taken together, we are left with an impression that Exhibit A-1 cannot be said to have been executed either as benami or nominal. At this juncture, it was pointed out by the counsel for the defendants that while Exhibit B-1 gives the value of the properties at more than Rs. 1,89,000. Exhibit A-1 which came into existence nearly 11 years afterwards, gives the value at Rs. 45,000 and contended that Exhibit A-1 should at any rate be considered as a nominal document. This argument cannot be accepted in the face of the clear recitals contained in Exhibit A-1 itself, which says that the panchayatdars, after taking into consideration the enjoyment of the properties and the income therefrom by Perumal Gounder for a considerable length of time, decided that Doraiswami Gounder should pay a sum of Rs. 45,000 to the first defendant and his brother. It is further stated in the said document that the vendee had agreed to discharge certain debts by Perumal Gounder amounting to Rs. 37,735-4-0, and to pay only a cash amount of Rs. 7,264-12-0 before the Registrar to the vendor. It is not the case of the defendants that there was no such debt payable by his father as recited in Exhibit A-1 or that those debts have not been discharged so far or that the cash amount of Rs. 7,264-12-0 was not received by him. The plaintiff herein also admits that the properties are very valuable and originally belonged to her husband and were taken by the first defendant's father previously under certain arrangements and had been agreed to be reconveyed to the plaintiff's husband Doraiswami Gounder, free of all encumbrances as a result of the panchayat. Therefore, the circumstances would only show that both Exhibits B-1 and A-1 really came into existence as a result of some settlement between Perumal Gounder and Doraiswami Gounder. We should like to sum up what has really happened in this way. Since there were large debts due by Doraiswami Gounder to Perumal Gounder amounting to Rs. 1,89,000 odd, Doraiswami Gounder agreed to convey his properties admittedly worth more than rupees three lakhs, to Perumal Gounder under Exhibit B-1, for the above-said lesser price of Rs. 1,89,000 odd, only with the specific understanding that Perumal Gounder would reconvey the properties to Doraiswami Gounder on the latter discharging the debts due to him. It may not be out of place to mention here that the total consideration mentioned in Exhibit B-1, viz., Rs. 1,89,821-14-0, is made up of Rs. 86,780 said to have been due on Exhibit B-9, a sum of Rs. 99,256-8-0 due on Exhibit B-11 a further sum of Rs. 2,800 due to one Sri Ganesar Bank towards a chit, in which Perumal Gounder had stood as the guarantor, and a sum of Rs. 1,005-6-0 due towards E.P. No. 583 of 1933 in O.S. No. 9622 of 1924. The amount of Rs. 86,760 due under Exhibit B-9, is mentioned as having been arrived at as the balance of principal and interest after giving credit to some interest already paid. The next amount of Rs. 99,256-8-0 is mentioned as the principal and interest due under Exhibit B-11. Thus, the total amount of Rs. 1,86,016-8-0 is the principal and interest under Exhibits B-9 and B-11, out of which the principal is only Rs. 60,000 and the interest that accrued is Rs. 1,26,016-8-0. It is the admitted case of the defendants as per para. 7 of the written statement that the annual income from the lands in dispute would have been Rs. 40,000 to Rs. 50,000. What were the materials that the panchayatdars took into consideration at the time of the arbitration while arriving at Rs. 45,000 to be paid to the vendors, viz., the sons of Perumal Gounder at the time of Exhibit A-1 we are not in a position to find out. But as seen from the recitals in Exhibit A-1, the arbitrators took into consideration the income from the lands while arriving at the figure of Rs. 45,000 as consideration towards Exhibit A-1. This fact shows that Exhibit B-1 was not a complete sale in the strict sense of the term enabling Perumal Gounder to enjoy the properties worth rupees four lakhs or more (Para. 7 of the written statement) and the income therefrom, absolutely for ever, but was subject to an arrangement for reconveyance back to Doraiswami Gounder. Therefore, the understanding at the time of Exhibit B-1 should have been that the income that would be derived by Perumal Gounder from the properties should be given credit to at the time of the reconveyance. Coming to the consideration under Exhibit A-1, it is seen from that document that the vendee, viz., Doraiswami Gounder had agreed to discharge certain debts aggregating to Rs. 37,735-4-0 and to pay the balance before the Registrar. Under these circumstances, it cannot be said that the amount of Rs. 45,000 is the only consideration under Exhibit A-1, but in our view the real consideration was the said sum and the benefit derived by Perumal Gounder and the defendants byenjoying the properties for a considerable length of time. Thus, at the time when Exhibit A-1 came into existence, the arbitrators had taken into consideration the fact that Perumal Gounder was enjoying the suit properties and the income therefrom for a considerable length of time and then decided that the first defendant and his brother Ramaswami Gounder (sons of Perumal Gounder) should reconvey the properties to Doraiswami Gounder on receiving a sum of Rs. 45,000. Thus, the sale deed Exhibit A-1 was really a reconveyance executed by the first defendant and his brother in favour of Doraiswami Gounder in the above circumstances. Therefore, when both Exhibits B-1 and A-1 are considered together, the above argument of the learned Counsel that there is difference in the value of the properties as recited in these two documents has no weight. For the above discussion, we hold on issue-4 that the sale deeds Exhibits A-1 and B-1 cannot be said to be nominal, but that they really came into existence as per the arrangement between the parties.
15. Then the next question under the same issue is whether the plaintiff is entitled to rely on the covenant of title, if any in the deed Exhibit A-1. It was contended on behalf of the defendants that inasmuch as Exhibit A-1 is a nominal sale, the relationship of vendor and vendee does not arise and consequently the plaintiff cannot rely on any breach of covenant of title and there would be no question of any covenant of title or indemnity for the same. We have already held that Exhibit A-1 was not a nominal one, but was a real reconveyance deed that came into existence between the parties. Therefore, we reject this contention. Therefore, we have only to find out whether there was any covenant of title or indemnity entered into therein and whether the defendants have committed breach thereof. The relevant recitals in Exhibit A-1 read thus:
In the face of the above clear recitals, there cannot be any dispute that there was a covenant of title and indemnity on the part of the vendors. The only argument on behalf of the defendants is that Exhibit A-1 is a nominal document and therefore the above covenant or indemnity does not arise. According to the first defendant, he neither assured Doraiswami Gounder about the minor's title nor did he make himself liable for any breach of covenant for title and that he had done no act whereby the property was incumbered or whereby he was hindered from transferring it to the purchaser Doraiswami Gounder. The material recital in Exhibit A-1 executed in favour of the benamidar of Doraiswami Gounder extracted above, can be construed as a covenant for title and indemnity on the part of the vendor. A covenant for title is a covenant that the vendor has a present title to convey. In every sale of land, there is an implied covenant for title as per Section 55(2) of the Transfer of Property Act, which reads as follows:
The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is incumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with,, the interest of the transferee as such, and 'may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
The provisions of Section 55(1) enable the buyer before the completion of the sale to ascertain if the title offered is free from reasonable doubt. Once the buyer has accepted the conveyance and the sale is completed, he has no remedy on the contract except for fraud. But, a covenant for title implied under Section 55(2) gives the buyer a further remedy in case of defects discovered after the conveyance. In the instant case, Doraiswami Gounder, at the time when he took the sale under Exhibit A-1 in the name of his benamidar, was aware of the fact that the sale was made on behalf of a minor also, viz., the brother of the first defendant. Mr. G. Ramaswami, learned Counsel for the appellant, would contend that even though the buyer, viz., MLJ- 27 Doraiswami Gounder was aware of the minority of one of the executants at the time of the contract, he is entitled as per the above recitals, in Exhibit A-1, to hold the first defendant liable in damages Mr. Kesava Iyengar has submitted that the expression '(sic)' used in Exhibit A-1 only refers to encumbrances like mortgages and other impediments, and that the seller in this case has done no act whereby the property is incumbered or whereby he was hindered from transferring it, and therefore the provisions of Section 55(2) would not be attracted to the provisions of the present case. learned Counsel would rely on the evidence of D.W. 1 who has deposed that the first defendant signed Exhibit A-1 only on the advice of Ramakkal, the step-mother of Doraiswami Gounder, and her promise of indemnity if any wrong would take place afterwards, and argue that the recitals now relied upon by the plaintiff were embodied in Exhibit A-1 only on the advice of Ramakkal and not on the first defendant's own volition with knowledge of any defect in title. In support of his contention, he would rely on the decision of this Court in Ramalinga Padayachi v. Natesa Padayachi : AIR1967Mad461 . The facts of the paid case were as follows:
M, the owner of two survey numbers, sold one of the survey numbers to A, and the other to B. But, in the sale deeds executed by him he wrongly inserted the survey number of B in A's sale deed, and the survey number of A in B's deed. In spite of this mistake, the parties were in enjoyment of their respective properties. N, who was relative of A coming to know of this mistake in the sale deed, persuaded A to sell him the survey number mentioned in his sale deed with the object of giving trouble to B. Having failed in his suit against B for declaration of title to that property and possession, N sued A for the expenses incurred by him in his suit against B.
On the above facts, it was held that Section 55(2) whereby there is an implied contract by the seller with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same, would be applicable only to cases where there is representation which the buyer accepted though he might have been aware of the defect but hoping that the defects would not affect him; but when the buyer himself knew full well that the seller had no title and was entering into the transaction with full knowledge of want of title, this implied warranty could not be invoked. The Court further held that though the validity of the contract itself was questionable as opposed to Section 23 of the Contract Act as the object of the agreement itself was fraudulent involving injury to the person or property of another, the plaintiff, in the above circumstances, could not recover the expenses incurred by him in the prior litigation. The above decision relied upon by the learned Counsel deals with a case where the buyer had knowledge that the seller had no title to the property and had deliberately purchased the litigation with the view of giving trouble to B, who was his enemy and he himself filed a suit against B, and having failed therein, had chosen to file the present suit for recovery of the expenses incurred by him in the said suit. In our view, the above decision is not at all applicable to the facts of the present case, because in the present case, though Doraiswami Gounder had knowledge of the minority of Ramaswami Gounder at the time when he took the sale deed under Exhibit A-1, in the name of the fourth defendant, he did not know that the first defendant was not selling the property for any family necessity binding on the minor Ramaswami Gounder. It is to be noted that Exhibit A-1 came into existence only after the Panchayatdars had discussed the affairs of the parties. Regarding the evidence of D.W. 1 that it was on the advice and guarantee of Ramakkal, the first defendant executed Exhibit A-1, we are of opinion that this oral evidence, which is in direct contradiction to the clear and express recitals in Exhibit A-1 cannot be admitted in evidence as per Section 92 of the Indian Evidence Act. The witness may give some interpretation of his own to the terms or recitals in a document and may give some reasons for embodying the recitals. But, when such terms or recitals by themselves are very clear and unambiguous, oral evidence contrary to them cannot be accepted. Regarding the construction of the terms of a document, it is the accepted principle that the intention of the parties is the determining factor and that intention has to be gathered from the document itself so as to find out the legal effect of the words used by the parties. If the words are express and clear, effect has to be given to them and any extraneous enquiry is ruled out. But if there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. The only explanation given by the first defendant in this case is that he was threatened by Doraiswami Gounder to execute the document Exhibit A-1. If it was so, the first defendant should have come forward with this case even in the suit filed by his brother in O.S. No. 178 of 1951. As we have already stated, the non-examination of the first defendant in this case would go a long way to show that the mere allegations made in the written statement have no value and no weight can be attached thereto. In the present document Exhibit A-1, the terms are express and unambiguous . Wherever a Court has to deal with a document which has been proved, its duty is to ascertain its real meaning and no evidence of any intention inconsistent with the plain meaning of the words used therein will be admitted to defeat the object of the language used.
16. We have to see whether at the time when Exhibit A-1 was executed the seller the first defendant had or had not made himself liable for any loss that might subsequently accrue to the purchaser for any defect of title to the properties. The conduct of the first defendant in remaining ex parte in O.S. No. 178 of 1951 would obviously show that he and Ramaswami Gounder (D.W. 4) had been acting in concert and collusion to the detriment of the case of Doraiswami Gounder. Therefore, the present version of the first defendant that Exhibit A-1 was executed under threat, coercion etc., is an afterthought and cannot be true. For the above reasons, we hold that the first defendant clearly represented to Doraiswami Gounder, at the time when Exhibit A-1 was executed, that he and Ramaswami Gounder had full title in the properties and undertook to be responsible for any loss that might accrue to Doraiswami Gounder subsequently.
The words are wide enough to include all kinds of inconvenience or losses that would be sustained by the purchaser. This portion of the undertaking is not confined only to encumbrances such as mortgages and other impediments, but would include also every dispute which would cause loss to the vendee and thus it would amount to a specific covenant of indemnity to the vendee in case of his sustaining loss on account of any dispute arising in respect of the property. It is comprehensive enough to include contingencies where any cloud is cast on the title, followed by consequent litigation and loss to the purchaser. Therefore, the first defendant would certainly be liable for the losses incurred by the plaintiff due to the claim made by Ramaswami Gounder.
18. The facts of the present case are in fact on all fours with the facts in Adhikesavan Naidu v. Gurunatha Chetti : (1917)32MLJ180 . In the said case, in a document Exhibit A-1 the vendor represented that there was necessity for selling the property in dispute. The purchaser, so far as the question lay between him and the vendor, was entitled to rely on that representation. A Full Bench of this Court held therein that the knowledge of the purchaser of the defect of title in his vendor did not affect his right to recover damages . It was further held that the manager of a joint Hindu family who agreed to sell immovable property belonging to himself and the minor members of the family was personally liable under Section 73 of the Contract Act for damages for failure to perform the contract when it was found that it was not binding on the minor.
19. In Mohamed AH Sheriff v. Venkatapathi Raju : (1920)39MLJ449 , a Bench of this Court held that mere knowledge on the part of the vendee of a defect in the title of the vendor would not by itself defeat the vendee's right on the basis of a covenant implied by Section 55, Clause (2) of the Transfer of Property Act.
20. In Thammineni Paparao and Ors. v. Dhavala Polinaidu and Anr. : AIR1945Mad205 , the facts were: The plaintiff sued for damages for a breach of contract of covenant for title in respect of certain properties sold to the plaintiff by the defendant as it was later found that the property was subject to a maintenance decree with a charge in favour of a third party and in execution of which it was sold. On those facts, it was held that the fact that (the buyer knew of the defect in title of the seller before the purchase did not prevent him from suing for damages for breach of covenant for title).
21. Thus (it can be seen that even if the Vendee had knowledge of the defect in title, the vendor would be liable in damages for the breach of the covenant of title. A fortiori therefore, in the present case where the vendee cannot be said to have any knowledge of the defect in title, he would be entitled to seek for recovery of the loss sustained by him, especially in the face of the clearly expressed covenant of title and covenant for freedom from incumbrances, contained in Exhibit A-1).
22. It is admitted that the plaintiff had been compelled to pay and had actually paid, as per the decree in O.S. No. 178 of 1951, a sum of Rs. 62,500 to Ramaswami Gounder. The first defendant and his minor sons are certainly liable to reimburse this amount to the plaintiff.
23. Since this is a suit for contribution based on indemnity, the plaintiff is certainly entitled to interest. The interest is claimed only at 5 per cent. per annum. Hence, we set aside the finding of the lower Court on issue 7 and hold that the plaintiff is entitled to interest as claimed.
24. The finding of the lower Court on issue 8 that the suit is not barred by limitation is confirmed. Likewise, we confirm the findings on issues 2 and 5 in favour of the plaintiff.
25. In the result, we allow this appeal by setting aside the decree and judgment of the lower Court and instead passing a decree as prayed for with costs throughout.