CHEKKU MOULAVI Vs. KUNJU

JUDGEMENT

(1.) This Second Appeal is by the 1st defendant in a suit for damages for breach of covenant of title in the sale deed executed by him in favour of the plaintiff. He was the owner of suit A and B schedule properties. He obtained the same by virtue of the decree in the partition suit, O.S. No. 500 of 1931, subject to a charge for Rs. 2000/- in favour of Mahomedunni. On October 31, 1945, he sold A schedule property to the plaintiff as per Ext. A-2, and the B schedule to the 2nd defendant by another document. The sale deed Ext. A-2, made mention of a hypothecation for Rs. 1,500/- executed by the 1st defendant in favour of one Ayidruman but not of the charge declared by the decree in favour of Mahomedunni, and made an express covenant assuring you hereby that there is no debt, other than the one for Rs. 1,500/- mentioned above, charged on the property scheduled hereunder and also that there are no other persons interested in this property. According to the plaintiff the charge in favour of Mahomedunni was suppressed by the vendor, the 1st defendant. Mahomedunnis rights devolved on Kunhali by successive assignments and the latter instituted a suit to enforce the charge, in O.S. No. 752 of 1945, and secured decree, Ext. A-4, against the plaintiff and the 2nd defendant for Rs. 2,970/-. Plaintiff had to pay Rs. 2,170/- and the 2nd defendant

(2.) The contention was that the plaintiff was well aware of the charge when he took Ext. A-2, and therefore the covenant in the deed was of no consequence, that the omission to mention the prior encumbrance in favour of Kunhali was at the request of the plaintiff who wanted to avoid payment to him, and that the plaintiff has not been defrauded by any suppression of defect in the title of the vendor and had therefore no cause of action for damages against the 1st defendant.

(3.) The Munsiff dismissed the suit, but the Subordinate Judge decreed the same. Hence this Second Appeal by the 1st defendant.