SHEIKH MUHAMMAD IBRAHIM Vs. NAKCHHED RAM SUKUL

JUDGEMENT

(1.) This appeal arises out of a suit to recover a sum of Rs. 878-1-0 the balance of the price paid for a share in a village under the following circumstances. The entire village was mortgaged in the first instance to one Parsotam Das. It was subsequently mortgaged usufructuarily to three persons, named, Sheodat, Nakchhed and Balak Ram. Parsotam Das brought a suit against the mortgagor for sale, obtained a decree and when the village was put up for sale he purchased it himself. He had not made the puisne mortgagees parties to this suit. He then brought a second suit against the puisne mortgagees. That suit was compromised and it was agreed between the parties that the puisne mortgagees were to pay Rs. 2,065 in redemption of Parsotam Dass's mortgage. In pursuance of this compromise, Sheodat paid one-third of Rs. 2,065 and obtained possession of one- third of the village. Nakchhed, the defendant in this suit, paid the remaining two- thirds of Rs. 2,065 and obtained possession of two-thirds of the village. This two- third share he sold to the plaintiff for a sum of Rs. 3,199. Then Balak Ram, who is the brother of Nakchhed, brought a suit against Nakchhed and the plaintiff to recover one-third share of the village on payment of one-third of Rs. 2,065. The suit was decreed and the money was paid, and the one-third share of the village was taken out of the plaintiff's possession. The plaintiffs in this suit sought to recover one-half of Rs. 3,199 less Rs. 721 already received. The suit was decreed by the Court of first instance. The lower appellate Court dismissed the suit. The learned District Judge held that the plaintiff either knew or ought to have known exactly what he was buying, that the sale-deed in the plaintiff's favour contained references to the decree of the 5 of March 1904 and the compromise and that these references were quite sufficient to put the plaintiff upon an enquiry as to the defendants title. Holding that the plaintiff knowingly bought a defective title, the learned District Judge dismissed the suit.

(2.) On second appeal to this Court, it is contended that having regard to the provisions of Section 55, Clause 2, of the Transfer of Property Act, the plaintiffs were entitled to the relief they ask for. Section 55, Clause 2, is to the following effect: "The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same." We have had the sale-deed in the plaintiff's favour read to us. It begins by a reference to the decree and compromise under which Wakchhed obtained possession of two-thirds of the village. In the operative part of the document, it in clear and unambiguous terms transferred to the plaintiffs the full rights of ownership in the two-thirds of the village free from all incumbrances. We think that while the reference to the decree and the compromise in the beginning of the sale-deed would operate to save the vendor from a charge of fraud, they were quite insufficient to relieve the vendor from the obligation imposed upon him by Section 55, Clause 2, of the Transfer of Property Act.

(3.) We are of opinion that the decision of the Court of first instance was the right one. We allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellants will have their costs in this Court and in the lower appellate Court including fees in this Court on the higher scale.