OUSEPH VARKKEY Vs. OUSEP CHACKO AND ORS.

JUDGEMENT

(1.) THE Plaintiff is the Appellant. Under Ext. A sale deed Defendant 1 sold to the Plaintiff three items of properties. But Plaintiff did not get possession. He has, therefore, brought the suit for recovery of possession of the properties sold to him. with mesne profits both past and future. It was also prayed that if, for any reason, recovery of the properties could not be granted to him a decree may be given to him for the refund of the purchase money with interest thereon from Defendant 1. The suit was decreed in respect of two items. The Plaintiff's claim for relief in respect of item No. 2 and also the alternative relief claimed in the plaint were refused by both the courts and against that portion of the decree he. preferred appeal S.A. 33 of 1120. Defendant 2 had also preferred an appeal in S.A. 19 of 1120. A Division Bench of the Travancore High Court heard both the appeals and dismissed S.A. 19 of 1120 with costs and allowed S.A. 33 of 1120 in part and granted Plaintiff a decree for a sum of Rs. 113 1/13 against Defendant 1. At the time when Plaintiff's appeal was heard Defendant 1 did not put in appearance. After the decision of the appeal he filed a petition to set aside the ex parte decree in appeal and the petition was allowed. This appeal has thus again come up for hearing before us.

(2.) THE question of the right of the Plaintiff to recover possession of item 2, was concurrently found against by the courts below and this point is not urged in second appeal. The learned advocate for the Plaintiff, however, contends that since there was a total failure of consideration in respect of item No. 2, there is no justification for refusing the alternative relief for return of a proportionate share of the sale price in respect of that property. We think that there is considerable force in this argument. It is contended by the learned advocate for Defendant 1 that what the Plaintiff has described in the plaint is not the property that was actually conveyed to him under the sale deed. There is no force in this contention. The boundaries given in the plaint are those that are given in the sale deed and the Plaintiff has clearly averred in the plaint that the property that was intended to be convoyed and was actually conveyed, is the property that is described in the plaint. But in the written statement of Defendant 1, the above allegations in the plaint were not denied and, therefore, have to be taken as admitted. It is true that there is no indemnity clause in Ext. A. But it is seen that Defendant 1 had, some time before Ext A, sold the property in question to Defendant 5 under Ext. V and put him in possession. Thereafter he sold the same property to the Plaintiff under Ext. A stating therein that he was the owner at the time and that he was in possession and enjoyment of it. Defendant 1 knew that the representation that he made in Ext. A was false and on the strength, of that representation he received consideration for the document. This is, therefore, a case of fraudulent misrepresentation and the principle of 'caveat emptor' can not apply. Therefore in the circumstances of this case, we think that the Plaintiff is entitled to a decree against Defendant 1 for the proportionate purchase money for item No. 2.

(3.) THE learned advocate for the Respondent contends that in any event Defendant 1 cannot be made personally liable for the amount, since Defendant 1 sold the property on behalf of a syndicated As is evident from Ex. A the sale was executed by Defendant 1 in his own capacity for the properties which, he stated, belonged to him. In these circumstances, we do not think that Defendant 1 can avoid his personal liability in respect of the transaction.