RAMALINGA PADAYACHI Vs. NATESA PADAYACHI

JUDGEMENT

(1.) THE defendant is the appellant. The respondent-plaintiff filed a suit for recovery of the sale price paid by him to the defendant and for damages suffered by him. The defendant sole the suit property along with standing chilli crops on 30-9-1954 to the plaintiff by means of a registered sale deed for Rs. 700. One Manickam Pillai, who was the owner of S. F. No. 20/14 and 21/2, agreed to sell S. F. 21/2 to the defendant and S. F. 20/14 to one Rajammal and others Sale deeds were executed by Manickam Pillai as per agreement. When the sale deed was actually within in favour of the defendant in respect of S. F. 21/2, S. F. 20/14 was wrongly inserted. A similar mistake was committed in the case of the sale deed in favour of rajammal. In spite of this mistake, the defendant was actually enjoying S. F. 21/2, a land of inferior quality without irrigation facilities, whereas Rajammal was enjoying S. F. 20/14, a land superior in quality having irrigation facilities. After the sale, the parties were in enjoyment of their respective properties for four years. The mistake was subsequently found out and rectification deeds were executed on 5-8-1954. The plaintiff, a relation of the defendant and an enemy of Rajammal's husband coming to know of the mistakes in the sale deeds executed by Manickam Pillai and with a view to giving trouble to Rajammal's husband prevailed upon the defendant to execute a sale deed in his favour of Rs. 700 in respect of S. F. 20/14. After purchasing the property, the plaintiff filed a suit O. S. 178 of 1954 against rajammal and other for declaration of his title and in the alternative for possession. He lost in all the courts incurring certain expenses. The present suit is filed by the plaintiff for the recovery of the sale price and for expenses incurred by him in the courts in the litigation in O. S. 178 of 1954. So far as the purchase price of Rs. 700 is concerned, there is no controversy here. The trial court gave a decree against the defendant directing the return of the purchase price with interest and disallowed the expenses incurred by the plaintiff in the prior litigation. The plaintiff preferred an appeal regarding the expenses disallowed in the prior litigation. The plaintiff preferred an appeal regarding the expenses disallowed in the prior litigation. The lower appellate court allowed the expenses as well and decreed the suit as prayed for by the plaintiff. In this second appeal, it is contended that the plaintiff is not entitled in law to recover the litigation expenses.

(2.) IT is common ground that the plaintiff knew that the defendant had no title to the property conveyed by him. The defendant was also aware of the fact that he was not entitled to the survey number which he had conveyed. The plaintiff prevailed upon the defendant to execute the conveyance for the purpose of giving trouble to his avowed enemy Rajammal's husband and others. The question that arises for consideration is whether under the circumstances, the plaintiff can claim the refund of not only the purchase price but also the damages which he suffered.

(3.) SECTION 55 of the Transfer of Property Act provides that in the absence of a contract to the contrary, the seller is bound to disclose to the buyer, any material defect in the property of which the seller is, and the buyer is not aware and which the buyer could not with ordinary care discover. Sec. 55, clause 2 of the Act provides that the seller should be deemed to contract with a buyer that the interest which the seller professes to transfer, to the buyer subsists and that he had power to transfer the same. It has been held that mere knowledge of the defect in title by the purchaser would not disentitle him to recover the damages sustained by him due to defect in title. In Adikesavan Naidu v. Gurunatha Chetti, ILR 40 Mad 338: (AIR 1918 Mad 1315)a Full Bench of this court held that the knowledge of the purchaser of the defunct of title in his vendor did not affect his right to recover damages. In the case before the Full Bench it was also held that the manager of a joint Hindu family who agreed to sell immovable property belonging to himself and the mint members of the family was personally liable under S. 73 of the Contract Act, for damages for failure to perform the contract when it was found that it was not binding on the minor. The fact as found by the Full Bench in that decision at page 350 are as follows-