Bawa, K.C. (with him Balasingham and’ M. W. H. de Silva).for respondents.
' cur. adv. vvlt. *
February 15, 1917. Shaw j.—
One Meera Lebbe Isma Lebbe donated certain property to. Ins threesons, burdened with a fidei! commissum in favour of the survivorsof them-
C *74 )
Shaw J.
Sulaikam- ■ummahv.Ahamadu-lewai
The appellant, one of the sons, by deed of Januaiy 11, 1893,purported to sell to another brother, Adam Lebbe, his one-third share.Adam Lebbe, by deed of April 22, 1912, donated the one-third shareso purchased to the respondents.
After the death of Adam Lebbe, the appellant, who was then theonly surviving son of Meera Lebbe Isma Lebbe, the original donor,ejected the respondents, by action D. C. Battiealoa, No. 4,193, onthe ground that the property passed to him under the fidei com-^nt88um, and that' Adam Lebbe could not pass any interest in theproperty to the respondents.«
The respondents have now retaliated by bringing an action againstthe appellant for breach of warranty of title in his conveyance toAdam Lebbe of January 11, 1898. The District Judge has decidedthat the appellant, by the deed of January 11, 1893, agreed towarrant and defend title as absolute owner, and that the plaintiffs,the assignees from Adam Lebbe, are entitled to sue for the breachof warranty, and has deferred (his finding as to the amount of thedamages.
I think the decision is right. The deed purports to be an absolutetransfer to Adam Lebbe, his heirs, administrators, and assigns of theundivided one-third share of the land, and provides that the one-third “ shall from this day for ever be possessed and enjoyed by thesaid Ismail Lebbe Marikar Ad^m Lebbe Marikar, his heirs, adminis-trators, and assigns as purchased property according to their willand pleasure, and declaring that the share of land hereby sold, trans-ferred, and set over is free from all encumbrances, and that any dis-putes or objections arising shall be warranted and defended by me,Ismail Lebbe Marikar, the transferor. ” In fact, the transferorhad not a good title to the one-third, as he only had a life interestin the one-third, unless he'survived his brothers, and the one-thirdwas not free from encumbrances, in that-it was burdened with the fideicommi88um in favour of the surviving son of Meera Lebbe IspnaLebbe. I am unable to accede to the contention that the deed onlypurported to convey such rights as the transferor had, in view of theclear wording of the clause set out above. In view of the direct con-tract in the deed of January 11, 1893, with the assigns of the pur-chasers and the recent decision of this Court in Hadjiar v. Don,1I am of opinion that the present action lies at the suit of the.plaintiffs, and that there has been a breach of the warranty isclear, for in the words of Lascelles C.J. in Fernando v. Per era:2“ How can property which is burdened with a( fidei commiesum—the .most troublesome of- all encumbrances—be described as freefrom encumbrance? *
I would dismiss the appeal with costs, and remit the case to theDistrict Court for the assessment of the damages.
i (1918) 19 N. L. B. Blit.a (1914) 17 N. L. R. at page 164.
( 475 )
Db Sampayo J.—WJ®
Hie facts leading up to this case are as follows. The field called Sulc&aq^Periavelly belonged to one Ismail Lebbe, who by deed datedFebruary 24, 1877, gifted it to his three sons, (1) Adam Bawa, (2) UmatAhamado Lebbe, the defendant, and (3) Meera Lebbe, subject to a• life interest in his wife, Asiatuzmna, and subject also to the conditionthat on the death of any of the three sons the share of the deceasedshould devolve on the survivors, and that they should *' not otty,mortgage, transfer, or otherwise alienate the said" property or anypart of it to others. ” By deed dated January 11, 1893, whileAsiatumma was still alive, the defendant sold his third share to hisbrother Adana Bawa, and entered into certain covenants as to title,which will be presently mentioned more in detail. Asiatumma diedin February, 1912, and Adam Bawa by his deed dated February 22,
1912, donated two-thirds share of the land (i.e., his original shareand his purchased share) to his wife, the/first plaintiff, and his sons,the second plaintiff and Ismail Lebbe. 'The last named has sincedied, and the second plaintiff is the administrator of his estate. AdamBawa having himself died, the defendant in 1915 raised theaction No. 4,193—D. C. Batticaloa against the plaintiffs, claiminga third share of the land, on the footing that by virtue of the conditionin Ismail Lebbe’s deed of gift the two-thirds share, to which Adam.Bawa was entitled at his death, devolved upon himself and his re-maining brother Meera Lebbe, and that the gift of Adam Bawawas invalid and inoperative. On an appeal to this Court thedefendant’s contention was upheld, and a decree was entered inhis favour for one-third share as .claimed. The plaintiffs havethereupon brought the present action against the defendant fordamages for breach of the covenants contained in his deed of sale infavour of Adam Bawa. The District Judge, on the issues thus arising,held in favour of the plaintiffs and set the case down for trial as tothe amount of damages, and the defendant -has appealed.
The defendant in the deed by which he sold the third share toAdam Bawa recited the terms of the original deed of gift, and statedthat the donees were thereby only prohibited from disposing of the*land to strangers, and that “ alienation in any manner could beeffected between them, ” and proceeded to sell to his brother AdamBawa his third share for the sum of Rs. 833, the receipt of which wasacknowledged. He further covenanted as follows:‘ “ And so the
undivided one-third share of the land aforesaid, with rights of outlet,inlet, &c.. appertaining to it, and all' interests that I, the said IsmailLebbe Marikar Ahamado Lebbe Marikar, have in the same shall fromthis day for ever be possessed and enjoyed by the said Ismail LebbeMarikar Adam Lebbe Marikar, his heirs, administrators, andassigns as purchased property according to their pleasure, and de- .daring (sic) that the share of land hereby sold, transferred, andSet over is free from all encumbrances, and that any disputes or
Da SampavoJ
Svlaikam-ummah v.Ahamadu-lewai
( 476 )
objections arising shall be warranted and defended by' me, IsmailLebbe Marikar, the transferor* ” The deed was in Tamil. Thetranslation from which the above passage is taken does not appear*1to be quite perfect, but the sense and the intention of the grantorare sufficiently plain. It is to be noted that the only reservation'made in the deed is the life" interest of Asiatumma, and no allusionis made to the condition that the interest Sold was to devolve on thesurviving brothers on the death of the grantee, Adam Bawa. Onthe contrary, the deed in form, and substance purported to conveyabsolute title to the third share. It is "true that, as already decidedby the Court in the previous action, the deed did not in law take awaythe effect of the condition in the original deed of gift, but that wasmanifestly not the view of the defendant himself or Adam Bawa atthe time. In the previous action the plaintiffs had to yield to thelegal result of facts, but the question now is whether'the plaintiffsare not entitled to sue for damages on the covenants contained inthe defendants deed.
' The claim is resisted on behalf of the defendant on several grounds..It is, in the first place, contended that the defendant sold and con-,veyed good title to such interest as he had, and that the fact of thethird share reverting to the defendant and the other brother was due,not to his own fault, but to a disability of Adam'Bawa himself, andVoet 21, 2, 2 is cited in support^ of this contention. This passagein Voet has, I think, no application whatever to the present case.What he there says is that .eviction is not considered to have takenplace if the purchaser is deprived of the thing by the exercise ofretractus legalis by third parties, such as the agnates of the vendor.What this retraction means will be seen from Voet 18, 3, 9. Itappears that the agnates of the owner of property had a right ofpre-emption given to them by the law or retractus legalis as distin-guished from a right of pre-emption created by contract or retractusconventionalis, whereby they could claim the property from thevendee, and Voet says that, when this right is exercised by theagnates, the deprivation cannot be aseribed to the fault of the vendor,but is due to a circumstance arising from a provision of the law.Even in such a case the same passage shows that the vendee isentitled ,to recover the price, though not id quod interest or damages.The appeal, therefore, cannot succeed on this point..
It is also contended that the defendant did not covenant for goodtitle, but only agreed to warrant and defend the title against disputesand objections,, and that as Adam Bawa knew of the possibledisputes and objections, no action can be maintained. I havealready stated that the whole tenor of the deed shows that thedefendant intended to sell the property absolutely. -He not onlyconveyed it to Adam Bawa and “his heirs, administrators, andassigns, ’’ but covenanted that they should possess it “ for ever ”,and that it was “ free from all encumbrances. “ The last phrase ii
( *vr )the context, whatever limited meaning it may have in other deeds, *****‘refers-not merely to mortgages or charges, but also to all such burdens Db Sampayoas fidei commissa, which may affect the title, for as Laacelles C.J. J-said in Fernando v. Perera:1 “ How can property which is burdened.. Sulaikam-wath a fidei commissum—the most troublesome of all encumbrances—be .described as free from encumbrance? ” The defendant followed lewaithis up by covenanting that he would warrant and defend titleagainst all disputes and objections. These are express covenants,and therefore even knowledge of defects on. the part of Adam Bawawill not affect the liability of the defendant. It may be added, how-ever, that there is no reason to infer such knowledge, but ratherthat both the defendant and Adam Bawa, as the peculiar languageand form of the deed itself shows, persuaded themselves that therejwere no such defects. In my opinion this argument also fails.
The last point taken requires more serious consideration. It isargued that only Adam Bawa or his legal representative, and notniTignlftr successors like the plaintiffs, who are donees, could maintainan action for eviction, and 3 Maasdorp's Institutes 162 hasbeen cited. This passage is founded on Voet 21, 2, 17, which laysdown that “the particular successors, &c., for instance, secondpurchasers, cannot sue unless cession of action has been made totheta by the first purchaser ” (Berwick's translation, 2nd ed.,page 524). See also Voet 21, 2 21, where the principle is said to bethe absence of privity of contract. A similar point arose in Hadjiarv. t>on,a in which Ennis and Schneider JJ. held that, where thecovenant was not with the vendee alone, but with him and hisassigns, there was purity of contract between the vendor and thevendee's assigns, and that an action could be brought by the latterwithout, cession of action. The question, however, appears torelate to the practice of conveyancing and form of contract ratherthan to the obligations of a vendor in respect of successors from thevendee, and I share the doubt expressed by Schneider J. in theabove case whether the passages cited from Voet hate any appli-cation at the present day in Ceylon. However this-may be, theauthority of the decision in Hadjiar v. Don (supra), witf£ which, ifI may say so, I quite agree, disposes of the argument oh* behalf ofthe defendant.
There is no question on the. facte as to the breach of the covenantfor good title, and as regards the covenant warranting and defendingthe title against disputes and objections, the defendant was himselfthe disputant and objector, who successfully evicted the plaintiffs,so that he cannot Be heard to say that there was no breach of thatcovenant. I would dismiss the appeal, with costs. –
Appeal dismissed.
1 (1914) 17 N. L. B. at page 164.
2 (1916) 19 N. L. R. 212.