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Judgment
Wallis, C.J.—This is an appeal from the judgment of the Subordinate Judge of Bezwada in a suit brought by the Zamindar of South Vallur
against the defendants, from one of whom he had purchased a certain village, to recover the costs which he was put to in defending his title to the
village against a third party. He bases his claim upon an indemnity contained in a deed of sale executed by the second defendant who was the
actual vendor, and also on a covenant contained in an indemnity bond executed by the first, third and fourth defendants, her husband and two sons
respectively.
The Subordinate Judge has given judgment for the plaintiff, and we think he is right. The covenants in the deed of sale and in the indemnity bond
are practically the same, and the covenant in the sale deed is, accurately translated in paragraph 8 of the Subordinate Judge''s judgment. It says:
If the previous owners or any others setting up any rights by transfer from them or any others claiming themselves to be their heirs or any others
claiming under any other title should lay any claim or file any suit regarding the title and interest of the property sold and if by such claim or suit any
sort of loss should accrue to your title or enjoyment all such obstructions we will remove at our cost and secure to you absolute right and
enjoyment.
Now, although the language used here is somewhat cumbersome, we agree with the learned Subordinate Judge that the effect of these words is
to impose upon the covenantor the duty of indemnifying the plaintiff from costs in suits like this in which he was obliged to defend his title to the
village. However, the case does not stop there, because the deed goes on:
Hereafter wards, (b) if anybody should file a suit, or (e) if there should be any dispute regarding the nature of the grant or of the tenure of the
village from the Government or from any others and if there should accrue any losses on that account, all those also we will remove at our cost and
will secure to you absolute right and enjoyment.
Now, we are clearly of opinion that, even if the first covenant is not clear, these words are sufficiently wide to cover the present claim, because
a suit has been filed and loss has accrued on that account to the plaintiff who has had to defend the suit at great expense. Therefore, we hold that
both the clauses contain a covenant of indemnity which the plaintiff is entitled to enforce in this suit.
The only other question which has been argued before us is whether the plaintiff is entitled to recover only the taxed costs, or costs between
solicitor and client, or what corresponds to that in this country, the actual costs which he has bad to pay to his own legal adviser. We are only
concerned in this case with the practice in cases of indemnity such as the present and with regard to such practice it appears to be well-settled law
in England that a party is entitled to recover costs as between solicitor and client, and it obviously must be so, because unless it ware so there
would be really no indemnity at all. That has been laid down by the high authority of Lord Tenterden in Smith v. Compton (1832) 3 B, & Ad.,
407, and Martin, B. and Pigott, B., in Howard v. Lovegrove (1870) L.R., 6 Ex., 43, and by Buckley, J., as he then was, in Great Western
Railway v. Fisher [1905] 1 Ch. 316. The system of awarding costs in litigation is somewhat different in England from what it is in India. There is no
system here of taxing costs as between a client and his vakil We do not lay down that under such contracts anything which a party had agreed to
pay or actually paid, could be recovered without regard to whether his conduct was reasonable or not; there can be no question here that what
was paid was reasonable having regard to the condition of things prevailing here, and was such a payment as would have been allowed if there
were taxation here as between client and vakil corresponding to taxation between solicitor and client in England. No better proof of that need be
mentioned than the fact that the defendants approved of the engagement of the late Mr. V. Krishnaswami Ayyar, one of the leaders of the Bar in
Madras, and when he became a judge they suggested to the plaintiff that he ought to get another vakil of the same position at the Bar, which of
course meant that be should be retained upon somewhat similar terms. It cannot be suggested that there was anything unreasonable in the conduct
of the plaintiff, or that he incurred any expense which he ought not to recover under his contract of indemnity.
We may also mention as regards this point that notice was given at a very early date to the defendants in this suit of the suit which had been
instituted against the plaintiff, inviting them if they liked to come in and conduct the defence.
The only other point is as regards interest. The plaintiff has claimed and the Subordinate Judge has allowed interest at 9 per cent. Having regard
to the position of the parties and the general circumstances of the case, we think that the rate of 6 per cent. is quite adequate, and we accordingly
vary the lower Court''s decree by giving 6 per cent instead of 9 per cent; otherwise the appeal is dismissed with costs.