Research › Search › Judgment

Kerala High Court · body

2006 DIGILAW 770 (KER)

Gopalan Nair v. Abraham Mathews

2006-11-08

K.A.ABDUL GAFOOR

body2006
Judgment :- In this Second Appeal by the defendant the main substantial questions of law raised are (i) whether, after the execution of the sale deed, the agreement for sale entered into between the parties has got any relevancy with respect to the consideration involved in the sale and (ii) whether, long after such sale, the vendee could raise a question as to absence of title of the vendor to claim damages. 2. The appellant/defendant and the respondent/plaintiff entered into Ext.A-1 agreement for sale of 10 to 12 cents of property. The sale price agreed was Rs. 15,000 per cent. It is an admitted case that this agreement of sale matured into sale by two documents whereby the appellant conveyed title of 6 cents each to the respondent. In both the documents, it is an admitted case that the sale consideration revealed was only Rs. 40,000 each for the plots of six cents. Later, as revealed by the case set up in the plaint there was notice by the revenue authorities served on the respondent/plaintiff that the said 12 cents included purambokku property as well. From this the respondent/plaintiff understood that the appellant/defendant did not have the full title over the property conveyed. This resulted in a suit for damages. It was dismissed by the trial court. The plaintiff carried the matter in appeal. The appellate court partly allowed the appeal finding that the appellant/defendant did not have title over 0.648 cents of land conveyed in favour of the respondent/plaintiff. Accordingly, an amount of Rs.9,720 was awarded as damages, taking the sale price as reflected in Ext.A-1 agreement. This decree is under challenge in the second appeal raising the substantial questions of law as mentioned above. 3. In the absence of conclusive evidence as to the sale price paid and received, even if there was deficiency of title, so far as the vendor is concerned, the damages cannot be awarded reckoning the sale price mentioned in the agreement. Damages shall be payable only going by the sale price. It is admitted that the sale deed revealed sale price of Rs.40,000 for six cents. But at the same time, the contention of the appellant/defendant that the vendee cannot raise a dispute regarding the absence of title of the vendor after the sale is concluded, cannot any more be countenanced. Damages shall be payable only going by the sale price. It is admitted that the sale deed revealed sale price of Rs.40,000 for six cents. But at the same time, the contention of the appellant/defendant that the vendee cannot raise a dispute regarding the absence of title of the vendor after the sale is concluded, cannot any more be countenanced. Going by Section 55 (2) of the Transfer of Property Act, a statutory covenant has to be read into every sale deed that the vendor did have the title to the property. Therefore, it cannot be presumed that the vendee had noticed the absence of the title so far as the vendor is concerned. It has been held by this court in the decision reported in Gouri amma v. Kesavan(1985 K.L.T. 862) as follows: “Counsel for the appellants submits that the decree by way of compensation for the property lost is not sustainable in the present case as according to him the plaintiffs were fully aware of the defect in title at the time when defendants 1 and 2 conveyed the properties to them and hence they are precluded from claiming compensation for the loss of property. We find it difficult to accept this argument. As per S. 55 (2) of the T.P. Act, a 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. This warranty of title subsists whether the buyer is aware of the defect in title or not.” In the light of this it was possible for the respondent/plaintiff to raise the claim based on the absence of title in respect of a portion of the property conveyed to him by the appellant/defendant as and when he noticed the same. Therefore the second question of law shall have to be answered against the appellant. 4. Ext.A-1 is the agreement for sale. The definite area agreed to be conveyed is not discernible from Ext.A-1. The sale is a contract different from the agreement for sale. The covenants contained in the definite contract bind the parties. It reflected a sale consideration as well. That sale consideration is Rs.40,000 for 6 cents in each of the two sale deeds, it is admitted. The definite area agreed to be conveyed is not discernible from Ext.A-1. The sale is a contract different from the agreement for sale. The covenants contained in the definite contract bind the parties. It reflected a sale consideration as well. That sale consideration is Rs.40,000 for 6 cents in each of the two sale deeds, it is admitted. When that is the sale price reflected in the contract of sale, necessarily, the damage to be worked out for 0.648 cents for which there was no title for the appellant/defendant shall be the pro rata sale price reflected in that sale deed. The 1st question of law has to be answered in favour of the appellant. Necessarily, the sale price in that regard shall come only to Rs.4,320 as against Rs.9,720 decreed by the 1st appellate court. 5. At the same time it is revealed that the appeal has abated because of the death of the appellant long before more than 4 years. A petition for impleadment of the legal representatives with petitions to set aside the abatement and condo nation of delay in that regard for over 4 years are filed only now. Necessarily the respondent is entitled to some costs on this count as well. 6. Taking into account all these aspects, I am of the view that the damages decreed shall be reduced to Rs.5,000. Appeal is allowed in part answering the first question of law in favour of the appellant.