Shahzad Singh vs Narain Kurmi and Another

Walsh, J.—In this case it has been found that, although the mortgage was invalid, the defendant deliberately concealed the truth from the plaintiff and pretended to be the owner, whereas he knew perfectly well that what he had was only an interest in an occupancy tenancy. The result of the authorities is that if the plaintiff was a partner to that bargain and deliberately entered into it with full knowledge of the circumstances, he has no remedy. The suit is based upon an entirely different hypothesis. The claim made by the plaintiff is that he, the mortgagee, was deceived into lending his money upon a security which the defendant knew was bad. If that is not a fraud, fraud does not exist.

The allegation is that the mortgage-money had been obtained from the plaintiff by practising fraud, and the suit is brought to get it back. The lower appellate Court has found the facts in accordance with this plea. We are of opinion that the law is well settled, and that there is no answer to plaintiff''s claim. The probability is that there is some authority where this has already been clearly laid down. If there is not, we are prepared to lay it down to-day, that it is no answer to an innocent plaintiff, seeking to recover money which has been paid by him through deceit by which the plaintiff was induced to enter into an invalid transaction, to say that the transaction being invalid no action lies. Such a suit is not based upon the transaction. It is based upon the fraud of the defendant and is bound to succeed. We so hold, and we dismiss the appeal with costs.