070-NLR-NLR-V-33-DINGIRI-AMMA-v.-MUDUYANSE-et-al.pdf
282
Dingiri Amma v. Mudiyanse.
1931Present: Akbar J.
DINaiJU AMMA v. MUDIYANSE rt al.
116—C. H. Matale, 621.
Sale—Deed of transfer with stipulation of good title—Action for failure to-warrant and defend and for breach of covenant—Condition of notice andeviction—-Roman Dutch law.
Where a deed of transfer contained an expl-ess covenant that the vendor had“ legal right to dispose of the land," the express warrauty of title may be enforced. without the preliminary condition of notice and eviction. IX
I
X this action the plaintiff sued the defendants for the* recovery of halfthe purchase money and damages consequent on failure of the
defendants to warrant and defend title conveyed by their father,Banhamy.
Banhamy sold the entirety of the northern 12 lahas paddy sowingof Kanatiangekumbura on deed No. 442 of September 21, 1921, to plaintiff.Banhamy expressly covenanted that he had good and lawful title to thepremises. In 1928, plaintiff was ousted from the eastern 6 lahas by theheirs-at-law of Puncbirala, brother of Banhamy. Plaintiff then institutedcase No. 19,250, C. B. Matale, against the heirs-at-law of Punchirala fordeclaration of title to this eastern block. Banhamy being then deadplaintiff duly noticed heirs-at-law of Banhamy, the present respondents,to warrant and defend the title conveyed by Banhamy. The respondentstook time to file .their statements but did nothing further in that case.On the trial date, plaintiff settled the action as he discovered that Ban-hamy had in 1917, as first defendant in No. 12,299 C. E. Matale, filedanswer and given evidence on oath to' the effect that he and the heirs-at-law of Punchirala were in common possession ot this land.
The Commissioner of Bequests dismissed the action, holding that theheirs-at-law of Kanhamy were not bound by the covenant made byBanhamy, and, further, that in law. plaintiff could not maintain thisaction because of the compromise in case No. 19.250. The plaintiffappealed.
283
AKBAR J.—Dingiri Amma v. Mudiyanse.
1). S. Jayaioickmma. for plaintiff, appellant.— Where there is an expresscovenant as to title, it may be enforced without the preliminarycondition of notice and eviction—Misso v. Hadjear. Purchaser or hisheirs may sue the vendor or his heirs when the abligation arises fromconvention. Voet. XXI., 2, 17. Express convenant as to title may heenforced against the heirs of the vendor. 25 Hals. 469.
Heirs are bound by obligation of ancestor, though they are notexpressly named in the contract, except where the obligation is personalto the ancester, or arises ex delicto. Walter Pereira (1013) 594.
D. S. L. I Abeyesekere, for defendants, respondents.—Plaintiff havingcompromised case 10.520, cannot maintain this action.
In any case, plaintiff should have instituted a possessory suit (Jina-Aaxa. v. Duraya -).
Jayawickrema, in reply.—In Jinadasa v. Duraya (supra) the case of an■express covenant as to title was not considered
November 2, 1931. Akbak J.—
By deed No. 442 of .September 21, 1921, one Ranhamy sold to theplaintiff 12 lahas of a certain paddy field for a sum of Bs. 300 and bythis deed he covenanted that he had ' ‘ full power and legal right to selland dispose of ’’ the above field. He further undertook to settle alldisputes if any alul bound himself and his heirs to procure any deeds orother writings relating to the said premises, if required. These are theexpress covenants in the deed. The plaintiff was ousted from theeastern 6 lahas in 1928 by the heirs-at-law of one Punchirala, a brotherof the above-mentioned Banhamv. The plaintiff-appellant thereuponbrought case No. 19,250 for declaration of title and recovery of possessionof these 6 lahas. and. Banhamv being dead, the plaintiff noticed theheirs-at-law of Ranhamy, who are the defendants in this case andrespondents to this appeal, to warrant and defend the title conveyed byRanhamy. Although the respondents took time to file their statements -they did nothing further in that case. ■ On the date of the trial of thatcase, it was discovered that Ranhamy had in 1917, as first- defendant in aease No. 12,299. filed answer and also given evidence to the effect thathe and the heirs of his deceased brother Punchirala were in possessionof this field. As a result- of this discovery the plaintiff admitted the title •of Punchirala's heirs to -J of the field. In this action the plaintiff suedthe heirs of Ranhamy for recovery of half the purchase money, not onlyon the ground that the defendant had failed to warrant and defend theplaintiff's title, but also on the ground of a breach of an express covenantb3’ Ranhamy contained in deed No. 442 that he had good and lawfulright to sell the whole field. All the facts I have stated abovewere admitted at the trial. The parties went to trial only on theseissues. —
Was plaintiff justified in instituting a rei vindicatio action in
R. 19,520, instead of a possessory-suit ?
Has plaintiff, having compromised C. R. 19,520, any causeof action against these defendants ?
119 N. L. R. 277.
* 20 N. L. R. 152.
284
AKBAR J.—Dingiri Ammo v. Xludiyanxt.
f{. If the answer to the above issues is in the affirmative, i<> whatdamages, if an;, is plaintiff entitled ? Damages are admittedto be as claimed, if plaintiff succeeds on the law.
There was a long legal argument by counsel and the learned Com-missioner dismissed the plaintiff's action with costs holding that Han-hamy had not bound himself and his heirs, i-c., to warrant and defendtitle of the premises conveyed and that he had expressly omitted to do so" because he wished to avoid making his children liable for the sins oftheir father He also held on the authority of the case of .Ihuidasa, v.Duraya '. that the plaintiff having compromised her action in ('. R. 19,520'she had forfeited any right she might otherwise have had to sue hervendor. In these remarks of the learned Commissioner, he omitted tonotice that the plaintiff had expressly amended his plaint on June 17,
1 Off 1, adding a cause of action on the express covenant by Ranhamythat he had good and lawful right to sell the. whole field. So that theplaintiff claimed .to recover the sum mentioned in the plaint not only onthe failure to warrant and defend title, but also on the breach of theexpress covenant of title. The case of Jinadasa v. Duraya (supra)was an action de evictione for a breach of the undertaking to warrantand defend title. The obligation to give vacant possession and towarrant against eviction and the necessity of notice and judicial evictionas pointed out by De Sampayo J. in the case of Misao v. Hadjear 2, wereobligations and requirements under the Roman-Dutch law. AsMr. Justice de Sampayo further pointed out. in the. Roman-Dutch law,there was no obligation on the part of a vendor to convey good title.So that the remarks of the learned Commissioner with regard to the point-that the plaintiff had forfeited her right to claim a refund of a part of thepurchase money because she had compromised her action in caseNo. 19,520 can only have application to the covenants under the Roman-Dutch law and can have no application to an express covenant of titlegiven as in this case. Mr. Justice Sampayo made this quite clear whenhe stated as follows:—“ Consequently any express warranty of titlemay with us be enforced without .the preliminary condition of notice andeviction. Venderpoorten v. Scott is an authority for that proposition.See particularly the judgment of Wendt J., where he points out thatin that case the defendant did not covenant that he had good title. Theopinion of the learned Judges was that, if he had done so, it would nothave been necessary to go into the question whether he had been noticedto warrant and defend the title which he had conveyed to the plaintiff.”In the view that I take that the case should be retried, it is not necessaryfor me to state my opinion on the questions of law discussed by theCommissioner. The three issues that were framed by the learned Com-. missioner are therefore inadequate to decide this case. The issuessuggested by the Proctor for the plaintiff on June 10, 1931, must headded to the three issues accepted by the learned Commissioner and thecase must go back for a retrial before another Judge. The decree andthe judgment will be set aside and the case sent back for trial on flie
1 20 N. L. R. 15K.
* 19 N. L. R 217.
LYALL GRANT J.—Pcrera v. Abdul Hamid.
28o
three issues accepted in this case and issues marked Nos. 5 and 6 suggestedj>y the plaintiff's Proctor on June 10, 1931, with liberty to the partiesto add any other issues arising on the pleadings. The plaintiff s appealwill he allowed with the costs of the appeal only. The costs alreadyincurred will abide the further result of this case.
Appeal allowed.