Madras High Court
Kasturi Naicken vs Venkatasubba Mudaly And Anr. on 28 March, 1889
Equivalent citations: (1896)6MLJ170
JUDGMENT
1. One Tayammal, a Hindu widow, sold certain land to the appellant in 1867, and the appellant sold it again to the respondent for Rs. 3,000 in February 1884. The appellant professed to sell as owner, and the sale-deed executed by him contained the following clause:--"There is no takarar of any sort whatever on the said land ; should any takarar arise, I will myself come forward and settle it."
2. Tayammal's son subsequently instituted. original suit No. 759 of 1885 to set aside the sale, on the ground, that Tayammal WAS incompetent to sell, and obtained a decree, which was confirmed in appeal on the 29th August 1886. Thereupon.the respondents brought this suit, upon the covenant contained in the sale deed, to recover back the purchase money.
3. The Judge decreed the claim, and accepted the clause in question as evidencing a covenant for title. It is urged in appeal, that the claim is barred by limitation. If the clause in question amounted to a covenant for title, Article 116 would apply, as [163] observed by the Judge, and no question of limitation would arise. We consider that the construction placed by the Judge is correct, whether regard is had to the langauage of the sale-deed or to Section 55, Clause 2 of the Transfer of Property Act.
4. No other point is urged in appeal, and we dismiss it with costs. ?
Note--This case was followed in appeal suit 60 of 1888. As to limitation see article 83, Schedule II, Limitation Act and Pepin v. Chancier, I.L.R., 5 C. 811,