Judgment :- 1. The deceased plaintiff purchased the two items of properties in suit, from the deceased defendant by sale deed Ext. A, dated the 23rd April, 1951. The dispute related only to item 2 of the suit properties, which may be referred to hereafter as the suit property. Ext. A purported to convey the full proprietary interest in the suit property, including possession, to the plaintiff. The defendant professed to obtain title to it by Ext. B sale deed of the year 1946 in his favour, which purported to be executed by three persons. The plaintiff alleged, that at the time Ext. A was executed, the defendant represented to her, that the suit property was being cultivated by dw. 2 on pathivaram, that he then undertook to recover the property and put her in possession, but did not do so, that Ext. B itself had been set aside in O. S.122 of 1952 to which both of them were parties and that she has no title. She has therefore sued for damages, being the proportionate consideration paid under Ext. A for the suit property and interest thereon. The defendant denied that he made the representation, or gave the undertaking as alleged, and maintained that both title and possession had passed under Ext. A. The first court found, that the plaintiff had neither possession nor title and gave decree in terms of the plaint, but on appeal the Subordinate Judge came to the conclusion, that the plaintiff had been put in possession, and that though Ext. B had been set aside, as she has not been dispossessed she is not entitled to recover damages, and dismissed the suit. The plaintiff preferred this second appeal, pending which she died and her legal representatives have come on record as additional appellants. The defendant also having died after the disposal of the appeal by the Subordinate Judge, his legal representatives were impleaded as the respondents in second appeal. 2. The first question for consideration is, whether the plaintiff has proved that she was not put in possession of the suit property. There is no acceptable proof in support of the allegation in the plaint, that the defendant made a representation, that dw. 2 was in possession of the property and gave an undertaking that he would recover and put the plaintiff in possession. On the contrary, the recitals in Ext. There is no acceptable proof in support of the allegation in the plaint, that the defendant made a representation, that dw. 2 was in possession of the property and gave an undertaking that he would recover and put the plaintiff in possession. On the contrary, the recitals in Ext. A are clear, that possession was also conveyed thereby to the plaintiff. The burden is all the greater on the plaintiff to prove, that she had not been put in possession. The plaintiff made no attempt to examine the person who according to her was in possession, and the defendant examined him as dw. 2. Though in chief examination he said that he is in possession of the property, in cross-examination he admitted, that he has no idea of the property at all; this has rendered his evidence valueless. 3. One Bhaskara Kurup who purported to be one of the executants of Ext. B, instituted O. S.122 of 1952 for declaring that Ext. B was not executed by him and that it was unsupported by consideration. To this suit, the plaintiff as well as the defendant were parties and a decree was passed setting aside Ext. B, Ext. C being the judgment in it, dated the 22nd June, 1953; Ext. C is final. In that suit the allegation of Bhaskara Kurup was, that he was in possession of the suit property, notwithstanding Ext. B. Neither the plaintiff nor the defendant disputed the truth or correctness of that allegation, and they suffered the suit to proceed ex parte against them. The theory that Bhaskara Kurup was in possession does not fit in with the theory of the plaintiff, that dw. 2 was in possession. The plaintiff, while here self giving evidence as pw.1, made such inconsistent and contradictory statements that it is impossible to place any reliance on her evidence. In this state of the evidence it is not possible to hold, that the plaintiff has discharged the burden of proving, that she had not been put in possession of the property. 4. Yet, for that reason, the plaintiff is not bound to fail. There is a covenant for title in Ext. A. In the opening part of Ext. A it was declared, that the defendant was entitled to the property absolutely, the words being in pursuance of Ext. 4. Yet, for that reason, the plaintiff is not bound to fail. There is a covenant for title in Ext. A. In the opening part of Ext. A it was declared, that the defendant was entitled to the property absolutely, the words being in pursuance of Ext. B sale deed; the covenant was, that if by reason of anything contrary to the declaration or affirmation made in Ext. B or for any other reason, any damage or loss was occasioned to the plaintiff, the defendant would indemnify her. This is quite a clear covenant for title. I cannot accept the argument of counsel for the respondents, that the defendant purported to convey only whatever title he may have had or may be deemed to have had under Ext. B. Although the Subordinate Judge noticed that Ext. B sale deed has been set aside by Ext. C, he took the step of dismissing the suit, on the ground that the plaintiff still continued in possession. I do not understand the law to be so. The plaintiff bargained not only for possession, but also for the full proprietary title to the property; in fact, but for the latter, it is more than doubtful whether she would have entered into the transaction at all. The loss of title was itself a substantial and a present loss. She has suffered loss, even if she has not succeeded in proving that she has no possession. Quoting from Dart on Vendors and Purchasers, Venkatasubba Rao, J. stated thus in V. M. Meerkanni Rowther v. A. F. Periyakaruppan (AIR. 1934 Madras 687): "Covenants for title must be distinguished from covenants for quiet enjoyment; in the case of the former, they are, if broken, necessarily broken immediately upon the execution of the assurance which contains them. The purchaser may bring an action immediately without waiting to be evicted or disturbed." "The sale being void ab initio the consideration for the sale fails at once and immediately, and a cause of action arises then and there. The purchase money paid by the vendee then becomes money had and received and the vendee is entitled to sue for its recovery from the vendor as from the date of the conveyance, and it is wholly unnecessary for him to wait till there was an eviction or disturbance of possession." See Kameswara Rao on Law of Damages and Compensation, 1959 Edn. Pp. Pp. 451 and 452. In this view, there can be no doubt, that the plaintiff is entitled to damages. 5. A question has arisen in some of the decided cases, whether full damages can be decreed when the purchaser still continues in possession of the property with only a remote chance of being evicted. In some of them, a method has been suggested for fixing the measure of damages, though Fawcett C. J. doubted the practical utility of the method in Harilal v. Mulchand (AIR. 1928 Bombay 427 at 431). So far as the present case is concerned, not only have the additional appellants disclaimed possession of the property, but their counsel has also stated, that they are prepared to give up whatever possession they have or may be deemed to have, in favour of the defendant's legal representatives. It cannot also be said, that the chances of eviction of the additional appellants are remote, in the light of the judgment Ext. 0 which is binding on both the plaintiff and the defendant, the case of Bhaskara Kurup being that he is in possession. More than this, soon after Ext. C, Bhaskara Kurup to whom the property solely belonged by virtue of Ext.1 release executed in his favour by the other executants of Ext. B, conveyed the property to the sons of dw. 2 by Ext. III dated the 25th July, 1953. It cannot be supposed, that the disturbance of possession of the additional appellants is a remote contingency and that nominal damages would suffice. However, such possession as they have or may be deemed to have, shall be surrendered to those respondents who are the legal representatives of the defendant, as a condition precedent to the recovery of the amount decreed herein. In view of the finding as to possession it is not proper to allow any interest to the appellants till the date of surrender. In the result, I pass a decree as follows. On condition that the additional appellants do execute a deed of surrender as directed, they shall realise the sum of Rs. 1,114.25 from the assets of the deceased defendant with interest from the date of surrender at 6 per cent per annum. The plaintiff and the defendant having both raised untenable contentions shall bear their costs throughout.