070-NLR-NLR-V-12-PONNIAH-v.-DINGIRI-AMMA.pdf
C 287 )
Present: Tlie Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
PONNIAH v. DINGIRI AMMA.
D. C., Kandy, 18,632.
Sale- of immovable property—Express ■warranty of title, words sufficientto create—failure to give possession and warrant and defend title.Where in a deed of transfer the vendor agreed 'as follows:—“ I hereby agree on behalf of myself, my heirs, &c., to settle anydispute which may hereafter arise in respect of the title herebyconveyed ; and I further hereby declare that I have done nothingbefore these presents to invalidate the title hereby conveyed,”—Held, that these words amounted to an express and absolutecovenant to defend the vendee’s title against any disputeswhatsoever.
A
PPEAL by the plaintiff from a judgment of the AdditionalDistxict Judge (A. C. G. Wijeyekoon, Esq.) dismissing
liis action. The facts sufficiently appear in the judgment of theChief Justice.
H. A. Jayewardem, for the plaintiff, appellant.
Hansom, for the defendant, respondent.
Cur. adu. milt.
August 31, 1909. Hutchinson O.J.—
The plaintiff says that Tikiri .Banda, purporting to be the ownerof a certain field, sold it to him for Rs. 300, and conveyed it to himby deed of May 9, 1905 ; that Tikiri Banda died intestate in 1906,and the defendant is his administratrix; that the plaintiff broughtan action in the Court of Bequests of Matale to recover the landfrom persons who were in possession, and that he in that actioncalled on this defendant as such administratrix to defend his title,that the defendant failed to do so, and the action in the Court ofBequests was dismissed; and that by reason of the premises hesuffered damage, which he claims now to recover. The damageshe puts at.Rs. 300, the price which he paid to Tikiii Banda; Rs. 60interest thereon; costs which he incurred in the Court of Bequestsaction; making a total of Bs. 493*75.
The District Judge dismissed the action on the ground that thecovenant in the deed of transfer does not state that the vendor hasa good title, and that he will warrant and defend it. – The deed is inSinhalese ; and the covenant, according to the translation filed inthe District Court, runs thus: “ I undertake that if any dispute wereto arise in respect of the said property,-1 or my heirs and assigns shall
1909.
August 31-
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1909.
August 31.
Here HINSONC.J.
have the same settled, and declare that I have before this committedno act so as to affect this sale.” The translation made, for us by ourMudaliyar is : “ I hereby agree on behalf of myself, my heirs, &c.,to settle any dispute which may hereafter arise in respect of thetitle hereby conveyed; and I further hereby declare that I havedone nothing before these presents to invalidate the title herebyconveyed.” The District Judge held that this covenant was limitedto the vendor’s own acts and. to disputes arising therefrom.
Decisions as to the meaning of other covenant more or less similarare not of much use, unless they establish some principle or rule ofconstruction. The respondent relied oh Silva v. Ossen Saibo;1 theappellant on Silva v. Loku Banda.2 In my opinion the covenantwith which we are concerned is an express covenant, absolute, andnot in any way limited, to settle all disputes which may arise inrespect of the title to the property ; and that can only mean, usingour English terminology, that the seller will defend the buyer’s title.
There were issues as to whether there was any consideration forthe conveyance to the plaintiff, and whether the alleged sale wasnot a sham one to enable the plaintiff to litigate for the lands againstthe persons in possession. The District Judge has not recorded anyfinding on them, but I think there is no evidence to support anaffirmative finding on them-
The plaintiff has proved the amount of his costs in the Court ofBequests action; and in my opinion the decree of the DistrictCourt should be set aside and judgment entered for the plaintiff forRs. 493-75, with costs in both Courts.
Middleton J.—
I agree with my Lord that the words of the clause relied on bythe appellant’s counsel constitute an express covenant to wax-rantand defend title by the defendant, and that the appeal should beallowed, and judgment entered for the plaintiff as prayed for.
Appeal (Mowed.
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»[1992) 2 C. L. R. 19.* (1901) S N. L. R. 194.