088-NLR-NLR-V-57-DHARMAWATHIE-HAMINE-Appellant-and-KIRA-Respondent’.pdf
1955Present: Basnayake, A.C.J., and Pulle, J.
1>HA1UIAWATH1J£ HAMIXE, Appellant, and KIRA,
'Respondent*
S. (J. Sit—]). (J. Kigali':, (},.'>!)■»
I "etc tor and purchaser—Covenant to tcarrant ttitil defend title—Act io roi viildicat i'>instituted by purchaser—A'o/ice to ceiulor—Dismissal oj action—Duty ofpurchaser to appeal—Liability of ccndor to pay damages. .
Where a purchaser of immovable property fails to succeed in a vindicatorynotion instituted by him in respect of the property, his omission to appeal tothe Supremo Court does not exempt tho vendor from liability for damages forbroach of his covenant to warrant and defend title, if tho vendor was givensufficient notice of tho action but did not induce the vendee to appeal.
jAlFPEAL from a judgment- of the District Court, Kegalle.
N.K. Choksy, Q.C., with E. D. Cosine and O. if. da Silva, for theDefendant-Appellant.
//. IK. Juycwardcne, Q.C., with A. C. if. Crais, for the PJaintiff-Respondcnt.
July 2S, 1055. Bassavakk, A.C.J.—
This is an action for damages in a sum of Ks. 3,f>00 for failure to warrantand defend title to a field called Kaththottiyc Cumbura alias AnclolnwcKumbura which the plaintiff-respondent (hereinafter referred to as therespondent) purchased from the defendant-appellant (hereinafter re-ferred to as the appellant). The respondent was never able to getpossession of the field. He was first obstructed by one Chara. Therespondent thereupon brought an action against him. In that actionthe respondent was declared entitled to the northern half of the field.When the respondent proceeded to take possession of the northern halfto which he was declared entitled, two persons by name Sandara andScelawathie obstructed him. He was thereupon compelled to institutea second action in the District Court, this time against Sandara andSeclawathic. The respondent failed in that action, but did not appeal.The instant action is the sequel to that failure.
The present appeal is by the respondent’s vendor who has been cast indamages. Learned Counsel for the appellant contends that the noticeserved on her was defective in that she was not asked to intervene inthe action. In support of his contention he lias referred us to the easeof Ajtftuhamy v. Singho el al. ’. He relics on the following passage in thejudgment at page 9S :—
“ The demand to warrant and defend title need not necessarilybe in writing, although, perhaps, it is the most convenient form ofmaking the demand. Tho demand may be verbal where the vendoris asked by the vendee to intervene in the action and to establish thotit-lo that has been conveyed”.
1 IS N. L. II. or..
1
-LVU
23. X. B S17CU—1,0'JU (5/OG)
lie also relied on the ease of Jinadasa v. Daniya1. In that easede Sampayo J. having referred to a passage from Vocl 21, 2, 30, goes 911to say :•.
“ The same passage in Vocl shows that if the purchaser is defeatedin the action and docs not appeal, or, having appealed, does not pressthe appeal, in a’ ease where the vendor has not intervened or under-taken the defence {absentc vcnditorc), he is likewise deprived of anyremedy against the vendor
On the authority of that statement learned Counsel submits that the res-pondent should have appealed in the second action and as lie did notappeal he is not entitled to the redress he claims in the instant action.
It is unsafe to rely on an isolated passage from Vort and base an argu-ment thereon without examining the entire context in which it occurs.The passage in question occurs in the title “ Dc Kvictionibus et DuplaoStipulatione ” (Bk. XXI, Tit. II)—“ Of Evictions and Warranty of Titleanil the Covenant for Double Value ”. Xonc of the other commentatorsdeals with this subject in as much detail as Vocl. After discussingseveral aspects of eviction and warranty of title Voct goes on to say inparagraph 20 of that title :
It must now be observed that a person from whom a thing hasbeen evicted cannot sue his auctor (i.c., vendor) or the other personsabove mentioned on account of eviction unless he has given himtimeous notice that the suit (for eviction) has been commenced, and,according to Our Usages, a copy of the plaintiff's libel : not for thepurpose of transferring the suit to him and to his forum, but ratherin order that he may take part (intervene) in the litigation {at lilea-s-s is tat) and undertake the defence in the forum of the party sued, andestablish his title …. This notice having been given, whetherthe “ auctor ” takes part in the suit in order to prevent collusion,or suffers that the purchaser constitute him “ procurator in remsuam ” (procurator in his own interest) or whether he does not openlyassociate himself with the suit, but supplies the defendant with assis-tance and proof for the assertion of the right,—or whether he docsnone of these after being cited onc-c or oftencr according to the usagesof the place, but altogether neglects the suit (in all these cases) he(the purchaser) has recourse against his “auctor” after evictionprovided the purchaser himself has not failed to defend it with all hispower ; lest- otherwise the “ auctor ” should be considered to havebeen defeated rather on account of absence than because he had abad cause
The notice that should be given to the vendor need not be given throughthe Court.- It can be given by the purchaser to the vendor in person 2and may be given not only before but even after litis conlcstutio providedit be given before it is too late for the vendor to intervene, for untildecree the vendor is entitled to an opportunity of .defence3. Failure togive notice of proceedings to evict the purchaser is not fatal to ail action
1 J'J -V. h. /.;>■.5 Y>o1. JU-. XXI, Tit. II. rim. -jt.
/l.i.l, s| ,0 -2>.
for breach of warranty if the purchaser can show a manifest want ofright on the part of his “ auctor ” 1 or where it is agreed that notice neednot be given or where the auctor lias intentionally concealed himself inorder to prevent notice being served on him
It should be borne in mind that Vo cl discusses the subject of warrantyof title and eviction mostly from the angle of the purchaser who is calledupon to defend an action for eviction. The considerations governingthe ease of a purchaser who is called upon to defend an action in evictioncannot bo appliod indiscriminately to the ease of a purchaser who playsnot. a passive but an active role in asserting his title by instituting legalproceedings. Judged by any standard the respondent is entitled tosucceed.
The appellant- was given notice of the second action which resultedin t-lio respondent’s eviction, both before and after its institution. Shewas not only- summoned to give cvidenco but was also noticed throughthe Court in the following terms:—
" You are hereby' summoned to appear* in this Court in person onihe J:?th day of [December 1049 at nine o’clock in the forenoon to giveevidence on behalf of tho plaintiff in the abovenamed action and h>warrant and defend the title conveyed by you to the -plaintiff in the aboveas per copy of plaint sent herewith.
“ And y'ou are not to depart thence until yon have- been examinedor have produced the documents and tho Court has risen or unlessyou have obtained the leave of the Court
The appellant was called ns a witness by the respondent in that actionand was in Court tlmoughout the proceedings.
Having had ample notice of the proceedings in which the respondentwas evicted and after being afforded every opportunity of interveningin those proceedings the appellant is not entitled to escape her liability'on the ground that the respondent did not appeal, without even endea-vouring to show that he had a reasonable chance of success in an appealand that she did all she reasonably' could to bring that fact to his noticeand induce him to appeal.
Learned Counsel for tho respondent relied on two decisions of thisCourt, viz., Wirawardanc v. Jlalnaike3 and launchi Appuhamy v. Jtum-hukpolha 4. They' do not call for any discussion as tho view wo havetaken is in accord with those decisions.
For the above reasons wc think that the appellant is not entitled tosucceed in this appeal.
The appeal is accordingly dismissed with costs.
Put.lk, J.-—I agree.
A ppbtil dism issed
4 Ibid § 22* Ibul § 24.
3 22 *V. T.. Ji. 2 tO.* J i N. L. It. 333.