VARGHESE Vs. PAPPY AMMA & OTHERS

JUDGEMENT

(1.) THE plaintiff in O.S. No. 26 of 1956 of the court of the Subordinate Judge of Parur is the appellant before us. The suit was for setting aside a sale deed, Ext. P. 5 dated 15 -6 -1122, executed by the defendants in favor of the plaintiff and for the recovery of the amounts paid in pursuance of that document. The lower court held that the plaintiff was not entitled to a cancellation of the sale deed and dismissed the suit. We entertain no doubt that the decision was right and has to be sustained.

(2.) THE only reason alleged in support of the prayer for setting aside the sale was that the plaintiff's attention was not drawn to a prior encumbrance affecting three of the seven items of property sold by the defendants, items 2, 5 and 7 of the A schedule to Ext. P. 5. It is not disputed that there was such an encumbrance, a simple mortgage created on 16 -2 -1094, and that the simple mortgage had matured into a decree, the decree in O.S. No. 53 of 1098 of the District Court of Parur.

(3.) NO fraud has been proved. Counsel for the appellant does not contend that there was fraud and that it affects the transaction. In such a case we must bear in mind the distinction made by Lord Campbell and quoted in 11 Q.B.D. 255: