116-NLR-NLR-V-50-CHELLIAH-KURUKKAL-Appellant-and-VENGADASALAM-Respondent.pdf
33ASNAYAKE J.—Ohelliah Kurulekal v. Vengadasalam
471
1948
Present:Basnayake J.
CHELiilAH KURUKKAL, Appellant, and VEN GAD AS ALAM,
Respondent
S. C. 219—C. R. Point Pedro, 1,180
Vendor and purchaser—Claim by third party—Compromise with claimantby purchaser—Action against vendor for damages—Vendor need notpay.
A purchaser of land who effects a compromise with a claimant withoutgoing through with the trial has not been evicted by process of lawand cannot claim damages from his vendor.
?PEAL from a judgment of the Commissioner of Requests,Point Pedro.
Cur. adv. vult.
W. Tambiah, for the defendant appellant.
P.Navaratnarajah, for the plaintiff respondent.
April 20, 1948. Basnayake J.—
The defendant-appellant (hereinafter referred to as the defendant)sold to the plaintiff-respondent (hereinafter referred to as the plaintiff)by deed No. 18985 dated November 13, 1943, for a sum of one thousand
1 See Rinkar Wasudeo Joshi v. Registrar, Co-operative Societies, Bombay-PoonaA. I. R. Bombay {1946) p. 346.
* {1948) 49 N. L. R. 405.*
{1947) 48 N. L. R. 113.
4:72
BASJSTAYA'KF. J.—Ohelliah Kurukkal v. Vengadasalam
rupees three lands described in the schedule thereto. Before hepurchased them the plaintiff, who is a resident of the locality in whichthey are situated, knew that they had been mortgaged to the defendantwho purchased them at the sale in execution of a mortgage decree inhis favour. In fact, the plaintiff had shares in two of them, the first-and the third in the schedule, and was acquainted with their historyfor about ten years. The conveyance in favour of the plaintiff wasin the following terms :—
“ Know all men by these Presents that I, UlagakurunathakurukkalOhelliah ELurukkal of KLerudavil for and in consideration of the sumof Rupees One thousand paid by Veluppillai Vengadasalam ofThanakkarakurichchy and received by me, do hereby sell, transferand convey unto the said Vengadasalam the properties describedin the schedule hereunder.
“ The properties described in the schedule hereunder belong byvirtue of transfer deed in my favour bearing No. 319 dated September25, 1942, and attested by K. Ramalingam, Notary, and by possession.I deliver herewith the said deed.”
In consequence of the disturbance of his possession of the three landsby the persons named Ponnammah, Seethevan, Wallipillai and ThamparKathiravelu, on July 4, 1944, the plaintiff instituted D. C., Jaffna,Case No. 2155/P against them in which he asked—
(а)that the lands be declared his property,
(б)that the defendants be ejected therefrom,
(c) that he be placed in possession,
{d) that the first three defendants be adjudged and decreed to payhim Rs. 25 as damages and continuing damages at Rs. 5 permensem till possession is restored to him.
On September 21, 1945, the date fixed for the trial of the case, counselfor the first and second defendants in moving for a postponement onthe ground that he was not ready stated that a proposal to settle thecase had fallen through only the previous day. A postponement wasgranted on payment of the day’s costs and the trial was fixed forJanuary 25, 1946.
On January 10, 1946, nearly eighteen months after the institutionof the action, the proctor for the plaintiff moved that notice be issuedon his vendor to warrant and defend his title. On January 12, 1946,notice was issued on the defendant requiring him to appear on January19, 1946, and to warrant and defend his title, and on January 19, 1946,the case was called but the defendant was absent, although the noticehad been served- For some reason which does not appear on therecord the case was called on January 21, 1946, and was settled. Onthat day the plaintiff and the four defendants were present in person,but only the plaintiff and the first and second defendants were representedby counsel. The terms as recorded by the learned District Judge read :—
“ Of consent. Enter judgment for plaintiff declaring entitledto share of 1st land, 3/64 share of the 2nd land and ^ share of the3rd land with damages fixed at Rs. 100 ; no costs.”
BASWAYAKR J.—Chelliah Kurukkal V. Vengadasalam
473
The plaintiff thereafter on April 10, 1946, instituted the present actionagainst the defendant claiming a sum of three hundred rupees asdamages suffered by him in consequence of the defendant’s failure towarrant and defend his title to two of the lands. The case went totrial on the following issues :—
Has plaintiff suffered eviction in respect of the shares mentioned
in paragraph 5 of the plaint in Case Ho. 2155/P, D. C., Jaffna ?
What damages if any has plaintiff sustained ?
Was plaintiff aware of the defect in the defendant’s title to
the land conveyed to him ?
If so, can plaintiff maintain this action ?
Except for the plaintiff’s evidence no oral testimony was offered byeither side. The learned Commissioner gave judgment for the plaintiffwith costs. The present appeal is from that order.
The following points emerge from the facts I have stated above :—
(а)the compromise appears to have been discussed and arranged
even before the purchaser noticed the vendor.
(б)the vendor was noticed at a very late stage in the proceedings
even after the first trial date and nearly eighteen monthsafter the commencement of the case.
the vendor did not appear to defend.
there is nothing to show that the purchaser’s action was one
that could not be maintained or was so hopeless that no-useful purpose would be served by going on with the trial.
the purchaser was a co-owner of two of the lands purchased
by him.
(/) the purchaser was a resident of the locality and knew the historyof the lands for about ten years prior to his purchase.
The real question that arises for decision is whether the purchaseris prevented from recovering damages from the vendor by reason ofthe fact that he effected a compromise with the claimants without goingthrough with the trial.
I shall now proceed to discuss the law applicable to that questionfirst by reference to the opinions of the Roman Dutch jurists such as Voetand Huber. Then I shall discuss some of the decisions of this Courtwhich are relevant to this topic.
Voet says1:—
“ Also [these actions fail] when the purchaser, before being condemnedhas voluntarily given up the thing to the plaintiff, or has compromisedwith him, or agreed to arbitration, or has submitted to the jurisdictionof an incompetent judge, or has referred the dispute to bis adversary’soath, and has thus lost the thing by the ruling of an incompetent judge1 21.2.30 Berwick’s Translation, p. 536.
474
BASIS?AYAKE J.—Chelliah Kurukkal v. Vengadasalam
or arbitrator. Also when the purchaser has not appealed whendefeated in the' suit, the vendor being absent; or has appealed indeed,but has abandoned the appeal ; contrary to what obtains if the vendorhad been present, for in that case the duty of appealing lies on himif he thinks that this step should be taken. ”
On the very same point Huber says 1 :—
“ 70. Similarly the buyer has no claim for eviction if he has deli-berately or negligently allowed himself to be overcome, or if he hasreferred the matter to arbitration (goede mannen) and has beencondemned by them ; for he was not entitled to refer the matter to theprejudice of the seller, but ought to have abided the ordinary courseof law.”
The fact that the vendor was noticed to warrant and defend his titleonly at a very late stage in the proceedings does not affect the purchaser’sright to receive damages for eviction, for it is sufficient if notice is giveneven before decree. [Voet 21. 2. 23.] But it is advisable that the purchasershould notice his vendor at the earliest point of time, for in certain cir-cumstances delay to notice him may prejudice the vendor in his defenceand may afford him a ground of complaint. The purchaser’s know-ledge of the history of the land, or the fact that he owned a share inthe land, so far as the evidence goes does not affect his Tight to bring anaction founded on eviction because there is nothing to show that he wasaware of any defect in the vendor’s title, or that Ponnammah or any otherperson had a right over it. A purchaser’s right to bring an actionfounded on eviction ceases only when he was aware that the property wasthat of a third party, or that another had a right over it ; unless he hadstipulated that in case of eviction he should be allowed to have hisrecourse against the seller a.
The above citations from Voet and Huber establish that a purchaserwho has compromised with the claimant is not entitled to succeed in anaction founded on eviction. The purchaser in this case settled the presentaction without going to trial and even before the date fixed for the trialof the action. There is nothing to show that this course was takenbecause his suit was so hopeless that it could not be maintained. On theother hand, even fourteen months after the action had been filed, thefirst and second defendants were not ready for their defence and werecondemned to pay the day’s costs. They were represented by counseland if their defence was one that was irresistible there seems to be nonecessity to gain further time. A noteworthy feature of the compromiseis that it was first mentioned to court not by the purcha er’s pleaderbut by counsel for the first and second defendants in hat case. Th'sisnot by any means an indication of the strength of the defence against thepurchaser’s action and I think it is even permissible to regard it asan indication of weakness of the defence. There is also the circumstancethat it was after the talks for a settlement had commenced that the
1 Huber's “ Jwrisprudence of My Time ”, Vol. I., Sec. 70, p. 425.
8 Huber's “ Jurisprudence of My Time, ” Vol. 1, Sec. 67, p. 425.
BASNAYAKJ3 J.—Chelliah Kurukkal v. Vengadasalam
475
purchaser moved for notice on the vendor. In this connection I wishto quote the words of De Sampayo J. in the case of Jinadasa v. Duraya 1wherein he says :
“ Whether or not the vendor in pursuance of the notice comes inand defends the title, the purchaser is bound to make a proper defencehimself, and do his best in the case. A corollary of this rule is thefurther condition that the purchaser should not so conduct the caseas to make it useless or impossible for the vendor to intervene anddefend his title. ”
It appears from, the following passage of Van Leeuwen 2 that it isnot open to a purchaser to concede a claim lightly if he means to bringan action on the ground of eviction against the vendor :—
“except where the right of the claimant clearly appears, and thatthe vendor had no right to the thing sold and the purchaser takesit upon himself to prove this, in which case the vendor will likewisewithout any previous notice be obliged to make compensation. ”
In view of these considerations the purchaser is not entitled to succeedin his action, because he has not been evicted by process of law. Hehas willingly lost the shares he has conceded in the lands and cannotat the same time complain that he has been evicted. There is no legalobligation on the vendor in these circumstances to pay the plaintiff’sclaim. The case of Kandiah v. Visuvalingam3 can be distinguishedfrom this case. There the vendor was made a party to the proceedingsin which the purchaser was asserting his title. When he did notappear he was summoned as a witness on payment of his expenses whichhe actually received. He was present on the first day of trial and thecase having been adjourned for a further date he failed to appear. Whenthe purchaser, after all his efforts, failed to get the vendor to assist himhe intimated to court that he could not proceed in the absence of thevendor.
The case of Menika v. Adakappa Chetty 4 also deals with a differentset of facts. At the first trial of that case the vendor did not appearthough noticed. The. case went up in appeal and came back for re-trial.At that stage the purchaser found that his case had no chance of successand confined his claim to compensation for improvements. Pereira, J.held that the purchaser’s conduct did not amount to a compromisebut that it was a limitation of the contest to certain points only whenthe others were found to be untenable.
The appeal is allowed with costs and the judgment of the learnedCommissioner is set aside. The plaintiff’s action is dismissed withcosts.
Appeal allowed.
1 (1918) 20 N. L. R. 158 at 159-160.
* Van Leeuwen'8 Roman Hutch Law, Kotze's Translation, 2nd Edn., Vol. II.,rp. 139, Sec. 3.
(1935) 15 Ceylon Law Recorder 25.
(1913) 17 N. L. R. 93.