V.M. Meerkanni Rowther vs A.V. Periyakaruppan

Venkatasubba Rao, J.—This appeal raises two questions of law : first, in a suit by a purchaser against his vendor for breach of covenant of

title, is he bound to waif; till his possession is disturbed? Secondly, in such a suit on whom is the onus of proof? Although I am upholding the lower

appellate Court''s judgment, I must say that its view on the first point is wrong. Covenants for title must be ''distinguished from covenants for quiet

''enjoyment; in the case of the former, they are, if broken, ""necessarily broken immediately upon the execution of the assurance which contains

them."" (Dart''s Vendors and Purchasers, Edn. 8, p. 663.) The purchaser may bring an action immediately without waiting to be evicted or

disturbed : (p. 665). The law is stated in the same terms by Sugden. A covenant for title,"" says the learned author, ""in broken immediately after the

execution of the deed, if the seller does not possess the estate professed to be granted and the purchaser is not bound to wait till ho is evicted; but

a covenant for quiet enjoyment affords no right of action until a disturbance."" (Sugden''s Vendors and Purchasers, Edn. 13, p. 498.) The view of

the learned Subordinate Judge therefore that the plaintiff was not entitled to sue, as his possession was not disturbed, is clearly wrong.

As regards the question whether the defendant had good title or not, the lower Courts have come to opposite conclusions. The property sold is

said to he a shop with some vacant space adjoining it. The north to south measurement of the entire site is given in the deed of sale as 62 feet. The

District Munsif finds that the defendant''s title to the shop has been made out but that he is not entitled to more than 28 feet north to south. The

Subordinate Judge, differing from the Munsif, seems to think that the entire property belongs to the defendant the District; Munsif bases iris

conclusion upon the fact that the rent deeds Exs. 1 and 2, executed by the defendant previous to the sale did not comprise the entire property; but

those deeds expressly exclude the two vacant sites on the north and on the south, whereas the sale deed includes thorn. In the rent deeds the two

vacant sites are stated to belong to the defendant. The reasons given therefor by the District Munsif for his judgment ate wrong. The Subordinate

Judge''s finding is a somewhat halting one. What then is the position? There is very little evidence on the plaintiff''s side to show that the defendant

is not the owner of the entire plot; so far as the defendant is concerned, his evidence is merely to the effect that the property descended to him

from his ancestors and that he was in undisturbed possession. In these circumstances, it seems to me that the case ultimately depends upon the

question, on whom is the onus of proof? No Indian decision bearing on the question has been cited, but the point has been fully discussed in a case

decided by the Court of Appeal in England : Stoney v. Eastbourne Rural District Council (1927) 1 Ch. 367.

In the action damages were claimed for breach of an implied covenant for title. It is pointed out in the judgment; first, that under the

Conveyancing Act, 1881, the covenant of title does not extend to all persons through whom the vendor derives title, but only to a limited class of

such persons; in other words, the purchaser is protected against acts done by the vendor or by some person through whom he derives title

otherwise than by purchase; and secondly, (this is the point with which we are concerned) in order to succeed in the action, she plaintiff must allege

and prove a breach of the covenant. The question of the onus was directly raised in the case, and Romer, J., held that it lay upon the plaintiff; the

point was fully considered by the Judges of the Court of Appeal and they concurred with his decision. In Howard v. Maitland (1882) 11 Q.B.D.

695 the point was not expressly decided; this'' is assumed to be the law. The evidence in this case is, as I have said, inconclusive, but the onus

being upon the plaintiff, I must hold that he has failed to discharge it. In the result, the second appeal fails and is dismissed with costs. Leave to

appeal is refused.