Varghese v. Mar Ivanios — 1955 DIGILAW 16 (KER)

Judgment :- 1. The plaintiff is the appellant in this appeal. The suit out of which the appeal arises was for recovery of unpaid purchase money due to the plaintiff on a sale of immovable property to the defendant. Plaintiff's claim was not resisted by the defendant who made a counter-claim against the plaintiff in an amount far in excess of what the plaintiff claimed, on account of damages for breach of a covenant contained in the sale deed. Both the plaintiff's claim and the defendant's counter-claim were decreed by the court below, and set off between the two allowed with the result that the plaintiff had to pay the difference to the defendant. 2. The sale was on 6.3.1119. Ext. V is the original sale deed a copy whereof has also been filed and marked as Ext. A. The sale was of land measuring 2 acres and 22 cents out of which 7 or 8 cents was unregistered poromboke. There were several buildings on the land sold. The site abutted a public road and one of the buildings was along side that road. Portions of that building were in the said 8 cents and one bit of it at a corner projected even beyond the 8 cents into the road margin as is seen from Ext. XIII which is the plan prepared by the commissioner deputed by court. The consideration for the sale was Tr. Rs. 34,000 which will be equal to Br. Rs. 33403-14-8 as it was then known; out of this Rs. 13403-14-8 was paid down in cash and the balance Rs. 20,000 was reserved with the vendee who was the Archbishop of Trivandrum to be paid in two equal instalments in future on 6.9.1119 and 6.3.1120 with a provision that on default of payment the overdue amounts would carry interest at 6 per cent. The sale deed mentioned the fact of the existence of the aforesaid unregistered poromboke in the property conveyed thereunder and the seller covenanted that he would procure its registration an application wherefor presented by him was pending, and transfer the full rights to the vendee. The deed also provided that should any loss accrue to the vendee on account of non-existence of or defect in title the vendor would be responsible for consequent damages. The deed also provided that should any loss accrue to the vendee on account of non-existence of or defect in title the vendor would be responsible for consequent damages. Within a few days of the sale, i.e. 13.3.1119, the defendant as vendee filed an application for registry of the said unregistered poromboke in his name instead in that of his vendor with an alternative prayer that if for any reason the prayer for registration could not be granted the property may be given to him as kuthakapattam so that he may continue in possession without interruption. The unregistered poromboke in question appears to have been in the possession and enjoyment of the vendor for some considerable time. Various fruit-bearing and other trees had been planted thereon. In fact a long structure abutting the road about 255 ft. long and 20 ft. wide containing two halls on either end and entrance in the middle and two rooms on either side of the entrance was partly located in a portion of this poromboke. The first instalment of Rs. 10,000 was paid by the defendant on 24.7.1119, i.e., about two months in advance of the due date, and the plaintiff passed a receipt, Ext. I, expressly reserving his liability in respect of the covenant contained in the sale deed. The reference obviously is to the liability of the plaintiff in respect of the unregistered poromboke comprised in the sale. Proceedings under the Land Conservancy Act which had been started in respect of the aforesaid unregistered poromboke occupied and enjoyed by the vendor were continued after the sale against both the vendor and the vendee. Exts. IX and X are notices issued to the defendant in respect of the said encroachment proceedings. There were two notices because the encroachment was in respect of two slices in two survey numbers. On 28.1.1120 the defendant filed another petition, Ext. E, making a prayer similar to the one contained in the earlier one. The plaintiff on 21.2.1120 presented a statement, Ext. IV, agreeing to the registry being given to the defendant as prayed in Ext. E. By two orders in the two cases, Exts. II and III, dated 20.6.1120 the application for registry made by the defendant was dismissed and the land was ordered to be surrendered. The plaintiff preferred appeals. Exts. The plaintiff on 21.2.1120 presented a statement, Ext. IV, agreeing to the registry being given to the defendant as prayed in Ext. E. By two orders in the two cases, Exts. II and III, dated 20.6.1120 the application for registry made by the defendant was dismissed and the land was ordered to be surrendered. The plaintiff preferred appeals. Exts. F and G are the orders dismissing the appeals but directing the grant of the land to defendant on kuthakapattam. On 18.2.1120 a notice was issued by the defendant to the plaintiff to which the plaintiff replied on 27.2.1120. Neither the notice nor the reply is before court. It is admitted that the notice and reply related to the non-securing of the registry in respect of the unregistered poromboke. The suit out of which the appeal arises was filed on 31.1.1122. Thereafter, on 1.8.1122 the defendant presented applications marked as Exts. H and J for kuthakapattom in respect of the aforesaid property which is situate in two survey Nos. 63/3/B and 63/3/A. Kuthakapattam was accordingly granted in 1953. A certified copy of the document has been produced in appeal by the appellant. The respondent does not object to the reception of the document in evidence in appeal and we consider that in the special circumstances of this case its reception as additional evidence is necessary and we, therefor, accept it as additional evidence and mark the document as Ext.K. The kuthakapattom granted under Ext. K is for a period of 12 years from its date subject to sooner termination if default is made in the payment of the dues shown therein or on three months' notice if the land be required for a public purpose. As a result of these proceedings the defendant has been in occupation of the unregistered poromboke in controversy without disturbance though he has not got the title which was covenanted to be conveyed under Ext. V. 3. The counter-claim of the defendant related to the breach of the covenant of the plaintiff in the matter of procuring the registry of the 7 or 8 cents of unregistered poromboke comprised in the conveyance. V. 3. The counter-claim of the defendant related to the breach of the covenant of the plaintiff in the matter of procuring the registry of the 7 or 8 cents of unregistered poromboke comprised in the conveyance. The defendant contended that the building a part of which is situated in the said poromboke and which had been considerably improved by him after the purchase has to demolished and reconstructed it having become certain from the aforesaid proceedings that obtaining title there to by its registry is not feasible. The court below awarded the defendant damage to the tune of Rs. 24,110 being the estimated cost of the loss of title to the said site as also of the demolition and reconstruction of the building in some other portion of the property conveyed under the sale. Learned counsel for the appellant contends before us that the obligation incurred by his client was only to do his best in the matter of securing the registry of the poromboke and that he has done whatever he could in that regard. He also contended that the defendant having himself intervened in the matter of obtaining the registry and applied for it he has waived the covenant in regard to the plaintiff's procuring the registry. The next contention urged by him was that the award of compensation by the court below is excessive and the last was that in any view of the matter the claim for damages is premature as the defendant is still in possession and has not been ousted. 4. It is clear that the plaintiff did clearly undertake to secure registry of the poromboke in question and that the covenant to secure title thereto has been broken. In the matter of attempting to secure registry the parties would appear to have made common cause. The intervention of the defendant by his application on 13.3.1119 and its repetition on 20.8.1120 appears to have been, as sworn to by him, at the instance and for the benefit of the plaintiff and not in antagonism to him. It may have been supposed that the additional weight of the defendant who was the Archbishop would facilitate the ordering of registry especially in view of the fact that the purpose for which the purchase was made was for the conduct of a public school which is now being conducted, in it. It may have been supposed that the additional weight of the defendant who was the Archbishop would facilitate the ordering of registry especially in view of the fact that the purpose for which the purchase was made was for the conduct of a public school which is now being conducted, in it. It appears to have been the policy of the Government until 1932 to acquiesce in, if not to encourage, parties occupying vacant Sircar land with a view to their improvement. In 1932, however, there appears to have been a change of policy and such occupation was discountenanced. It is said that even then prior occupations were being an expected to be respected by the grant of registry to the occupants confining the operation of the change of policy to future occupations. It is with this expectation that the plaintiff entered into the covenant and the consequence of his disappointment in the matter cannot be visited upon the defendant who bargained for a title in respect of the property and the right to have the structure thereon retained and used by him. The covenant has been broken and the vendee has a present cause of action. We cannot accept the argument that the cause of action arises only on actual eviction. "If there is a defect in title not expressly excluded from the implied covenant, the covenant is broken immediately after the conveyance is made; time under the statute, therefore, immediately begins to run, and an action may at once be brought for the breach, before any eviction or disturbance of the purchaser has taken place", (Mayne on Damages, Eleventh (1946) Edition, page 236 quoting Kingdon v. Nottle ((1913) 4 M. & S. 53). Whether it is a continuing breach so long as the purchaser has not a good title as held by Kelly C.B. or it is a case of a covenant is broken once for all which was the view of Bramwell B in Kingdon's case does not fall to be considered here as the action is in time even from the date of the deed of conveyance. The covenant was for procuring title by registry of the plot. It is true that the defendant is in possession as kuthakapattamdar but that is a precarious tenure liable to be terminated on three month's notice. The only question then is about the quantum of damages. The covenant was for procuring title by registry of the plot. It is true that the defendant is in possession as kuthakapattamdar but that is a precarious tenure liable to be terminated on three month's notice. The only question then is about the quantum of damages. The following passage at page 237 of Mayne on Damages may be read with advantage in this connection: "A case may be easily imagined, and indeed constantly occurs, in which there is such a defect in the title as makes the property strictly unsaleable, though there is little or no chance of the occupant ever being turned out. In such a case it would not be fair to allow the whole purchase money to be recovered. The vendor has not given a saleable title as he engaged; but he has given up his own possessory title, which was worth something to him, and is worth something to the purchaser. It is clear that if he were forced to refund the entire purchase money, the estate would not revert to him, because, as against him, the title would still be in his purchaser. The fair rule would be to give the plaintiff such damages as will compensate him for the defective quality of his title. This was the view taken by the Court in Kingdon v. Nottle". The site covered by the poromboke may be taken to measure 8 cents. The defendant admits in his written statement that the site was valued at Rs. 20/- per cent and that on account of the loss of title to the poromboke he has lost Rs. 160. On that site stands part of a big building over 5500 Sq. feet. XXIII, the plan prepared by the commissioner makes it clear that it is not possible to retain the building on the present site on diminished dimensions, especially as its width is only 20 feet and its lie in poromboke is irregular, less and more than half the width in some places and in one place the poromboke cuts across the building. The building has, therefore, to be demolished. There is no clear evidence in the case on which the expenditure for demolition and reconstruction can be accurately ascertained. Taking about Rs. 4 to Rs. 5 per square foot to be a reasonable expense for a new construction the amount required would be about Rs. 25,000. The building has, therefore, to be demolished. There is no clear evidence in the case on which the expenditure for demolition and reconstruction can be accurately ascertained. Taking about Rs. 4 to Rs. 5 per square foot to be a reasonable expense for a new construction the amount required would be about Rs. 25,000. From this has to be deducted the value of the materials of the demolished structure. Further, we have to evaluate what a demolition or reconstruction would cost at the present moment; what we have to reckon is the present worth of the compensation on the chance of a necessity for the demolition and reconstruction of the structure in the future, that is, at the time of eviction of the defendant which cannot be posted with any absolute degree of certainty. That event may happen or it may not happen at all in view of the fact that the premises, as already stated, are being used to run a school and the Government are interested in the conduct of educational institutions; they are, however, not less interested in highways in view of the increasing motor traffic and the necessity of the poromboke in question, which is road margin, for widening the road accounted for the rejection of the application for its registry. We have to do the duty of evaluating the compensation due to the defendant having regard to all these chances. The determination of the quantum under these auspices must necessarily be approximate. Taking all the present and prospective circumstances into consideration we assess the damages due to the defendant at Rs. 10,000 in 1120 when the registration applied for was refused. It is quite possible that the default of the defendant in the matter of payment of the second instalment was on account of this circumstance which might have been anticipated. The amount of the second instalment is Rs. 10,000, as already stated. The two claims for the unpaid portion of Rs. 10,000 and the damages as ascertained above being identical and having arisen at about the same time we direct that the one may be set off against the other which will wipe off both leaving no outstanding liability on either party. The result is that the decree of the court below is modified and this appeal allowed. 10,000 and the damages as ascertained above being identical and having arisen at about the same time we direct that the one may be set off against the other which will wipe off both leaving no outstanding liability on either party. The result is that the decree of the court below is modified and this appeal allowed. The plaintiff's suit is decreed and the defendant's counter-claim is also decreed for an equal amount and as we have directed, the two claims will be set off against each other. The parties will bear their respective costs here and also in the court below. Allowed.