031-NLR-NLR-V-50-SUBRAMANIAM-et-al.-Appellants-and-SIVAGURU-Respondent.pdf
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WiJE YEWARDENE J.—Subramaniam v. Sivagu.ru
1941Present: Wijeyewardene and Nihill JJ.
SUBRAMANIAM et al., Appellants, and SIVAGURU, RespondentS. C. 273—D. G. Jaffna, 13,313
Vendor and purchaser—Number of vendors—Each sella his undivided share—Purchaser evicted—Liability of each vendor—Proportionate share ofdamages—N otice.
Each of a number of vendors who sells his own undivided share of aland is liable in an action for eviction only in a proportionate share ofthe damages.
Where there are a number of vendors notice of eviction must hegiven to each.
./^.PPEAL from a judgment of the Uistrict Judge, Jaffna.
N.Nadarajah, with C. Renganathan, for defendants, appellants.
H. V. Perera, K.C., with H. W. Tambiah, for plaintiff, respondent.
Cur. adv. vull.
November 11, 1941. Wijeyewaedene J.-—
The first defendant and his sister, the second defendant, sold to theplaintiff an undivided one-fourth share of a land for Rs. 400. A fewmonths after the transfer, an action was filed by a third party for thepartition of the land, and the plaintiff intervened in that action to estab-lish his claim to the share purchased by him. Under the final decree inthe action the plaintiff was not declared entitled to any share, and thatdecree was affirmed in appeal.
The plaintiff, thereupon, instituted the present action against thedefendants claiming the consideration paid by him and the damagessustained by him by reason of the defendants’ failure to warrant anddefend his title. The Additional District Judge gave him judgment forRs. 1,202-72 and costs against both the defendants and they havepreferred the present appeal against that judgment.
1 (1915) A. C. 900.
WlJEYEWARDENE J.—Svbramaniam v. Sivaguru
125,
In this case notice should have been given to each of the defendantsas “ where there is a plurality of vendors or of heirs of one vendor, it isnecessary that notice be given to each ” (Voet 21, 2, 21. Berwick’sTranslation). The notice, of course, need not be in writing provided,that a demand, if not made in express terms, could be implied, at least,from the surrounding circumstances, as having been made to each ofthe vendors to render to the vendee all the help that it was in his or herpower to give and so defend the title of the vendee (vide Tinanhamy v~Nomis1; Meniha v. Adahappa CJietly 2 ; Wirawadane v. Ratnailce 3).It is, moreover, sufficient if the notice is given to the vendor’s agent “thevendor, however, being present and not ignorant of it ” (Voet 21, 2, 21).Applying these principles, I find that the evidence accepted by theDistrict Judge supports his finding that due notice has been given to the-defendants, though, as the defendants’ Counsel submitted, the District-Judge does not appear to have directed his mind specifically to the legalrequirement that notice should be given to each of the vendors.
The District Judge has erred in entering judgment against both the-defendants for the full amount found to be due. The two defendants-transferred to the plaintiff a one-fourth share claiming to be entitled tnthat share by right of inheritance from their father. It is clear thateach defendant sold an undivided one-eighth share for half the considera-tion. Under these circumstances the liability of each defendant would,be for only a half share of the amount found to be due to the plaintiffsThe extent of liability of one of several vendors is indicated in thefollowing passage from Voet 21, 2, 18 (Berwick’s Translation) : “ Clearly,if the plurality of vendors did not sell communiter, but each only his ownundivided share of what had been possessed by him pro indiviso, then asthere are considered to be as many sales as shares sold, there is no doubtbut that each is bound only for his own share, not only in respect to makinggood the damages sustained by the eviction, but also in respect to under-taking the defence ”. This view of the law has been accepted and actedupon in Baba Sinno v. Sasira 4. I do not think that the case of GiniarahHamy v. Abdul Raheman 5 cited on behalf of the plaintiff is of muchassistance in the decision of this question.
The Additional District Judge has thought it necessary for the purposeof deciding the issue in this case to make some adverse comments on theevidence of Mr. Advocate C. Vanniasingham who was called as a witnessby the defendants. On a careful study of the evidence given by thewitness, I am strongly of opinion that the strictures passed by thelearned District Judge are not justified.
I would set aside the decree appealed against and direct that decreebe entered ordering each of the defendants to pay the plaintiff Rs. 601*36and half the costs of the action in the District Court. I make no order as-to the costs of this appeal.
Nthjxx J.—I agree.
Decree varied_
1 (1909) 1 Cur. Law Rep. 216.
(1920) 22 Jy. L. R. 219-
(1901) 5 N. L . R. 34.
2
(1913) 17 N. L. R. 93.
* (1919) 6 C. W. R. 230.
1*3. N. A 84750 fl2/48>