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Madras High Court
Krishnan Nambiar And Ors. vs Kannan And Anr. on 21 October, 1897
Equivalent citations: (1898) ILR 21 Mad 8
Bench: Benson, Boddam


JUDGMENT

1. The learned Advocate-General on behalf of the appellants argues that, as the covenant of title was not embodied in words in the sale-deed, but is implied by law under Section 55 of the Transfer of Property Act, it cannot be regarded as a contract in writing registered, and therefore does not fall under Article 116
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Article 116:

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Description of suit. | Period of | Time from which period begins to run
| limitation. |
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For compensation for the breach | Six years … | When the period of limitation would
of a contract in writing registered. | | begin to run against a suit brought on
| | a similar contract not registered.]
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of the second schedule of the Limitation Act, but under Article 115.

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[Article 115:

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For compensation for the breach | Three years … | When the contract is broken, or
of any contract, express or implied, | | (where there are successive breaches)
not in writing registered and not | | when the breach in respect of which
here in specially provided for. | | the suit is instituted occurs, or (where
| | the breach is continuing) when it ceases.]
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2.With that contention we cannot agree. The contract of sale being in writing and registered, all terms which the law implies, or reads as part of the contract, must also be regarded as part of the registered writing.

3.This view was that adopted by Parker, J., in Chinna Narayana Reddi v. Peda Rama Reddi appeal against Order No. 82 of 1890 reported in 1 Mad. L.J. 479. The suit was therefore not barred by limitation.

4.The only other ground urged is that the lower Courts were wrong in deciding that the tar wads title to the property was not a question to be gone into in the present suit, as it had been decided in the former litigation.

5.In that litigation the present plaintiff and the second defendant (as representing the tar wad) were joint plaintiffs, and it was then found as. between each of them and the persons in possession of the property that the second defendant and his tarwad had no title to the property. The title to the property is therefore res judicata as between the persons in possession and the second defendant and his tarwad. It is idle to contend that, in these circumstances, and useful purpose was, or could be, served by admitting evidence as to the tarwad’s alleged title. On both grounds then the second appeal fails and is dismissed with costs.

6.The plaintiff files a memorandum of objections to so much of the decree as disallows his claim for costs of the former litigation, viz., Rs. 527-15-2 plus Rs. 69-11-0 and for interest on the purchase money prior to the plaint.

7.On both points we think the objections are vaild. The costs of the litigation which resulted from the breach of covenant of title are proper damages and not too remote. The omission as regards interest is clearly a clerical error. We allow the memorandum of objections with costs in the Lower Appellate Court and in this Court, and modify the decree accordingly. The rate of interest will, however, be 6 percent, as allowed by the District Judge, not 12 percent, as claimed. We allow interest at 6 per cent, on the costs of the former litigation.


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