TMI Blog1965 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyed. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation was proved to be incorrect. But in the case before me, the plaintiff knew full well that the defendant had to title and was deliberately purchasing litigation. In Md. Ali Sheriff v. Venkatapathi Raju, 39 Mad LJ 449: AIR 1920 Mad 634 a Bench of this court held that mere knowledge on the part of the vend of a defect in the title of the vendor would not by itself defeat the vendee's right on the basis of a convenient implied by Section 55, clause (2) of the Transfer or Property Act. In the case cited, the property which had been purchased from the widow of a deceased Hindu was sole to the appellants and the reversioners of the widow obtained a decree setting aside the sale by her and took possession of the property sold to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle to the property. In Yegnanarayana v. Yagannadha AIR1932Mad1 , the learned Judge referred to the Full Bench decision in ILR 40 Mad 338 :AIR 1918 Mad FB. Following the dictum in the above Full Bench decision that knowledge of the purchaser of the defect of title in his favour does not affect his right to recover damages, the learned Judge observed at page 5: ...... if an act is unlawful of the doer of it know it to be unlawful as constituting either a civil wrong or a criminal offence, he cannot maintain an action for contribution or for indemnity against the liability which results to him therefrom; and that an express promise of indemnity to him for the commission of such an act is void . In the above case, the facts found we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t affect him. But when the buyer himself knew full well that the seller had no title and was entering into the transaction with full knowledge of want of title this implied warranty cannot be invoked. The validity of the contract itself is questionable as opposed to section 23 of the Contract Act as the object of the agreement itself is fraudulent involving injury to the person or property of another. In the circumstances it has to be held that the plaintiff cannot recover the expenses incurred by him in the prior litigation. 5. The appeal is allowed to the extent indicated above. The judgment and decree of the lower appellate court are set aside an those of the trial court restored. There will be no order as to costs here. No leave. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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