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Madras High Court
Visalakshi Ammal And Ors. vs Veeraswami Naiker And Ors. on 18 July, 1927
Equivalent citations: AIR 1927 Mad 1072
Author: Wallace

JUDGMENT

Wallace, J.

1. It is argued for petitioner that the covenant set out in Transfer of Property Act, Section 55 (1) (g), is not one which runs with the land and the difference in language between (1) (g) and the proviso to (2) supports that view. It is also supported by the remarks in a case reported in Venkataranga Ayyar v. Ramaswami Ayyar A. I. R. 1926 Mad. which relies on Srinivasa Achari v. Gananaprakasa Mudaliar [1907] 30 Mad. 67 a ruling under the corresponding Section 65 as regards mortgages. The view of the lower Court that the proviso in Sub-section (2) covers Sub-section (1) (g) also cannot be upheld. Ex. A-1 only purports to sell such interest as the vendor had and not an absolute freehold free of all encumbrances. Sub-section (2) therefore does not import the sale of any such freehold.

2. Plaintiff’s claim under Section 55 (1) (g) is limited to a claim against his vendor i. e., defendant 2, and he is not entitled to a decree against defendant 1.

3. I modify the decree of the decree of the lower Court and direct that the name of defendant 1 be struck out of the decree. Defendant 1 will get her own costs from plaintiff here and below, and the plaintiff will get his costs from defendant 2 in the Court below.


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