John Edge, Kt., C.J. and Blennerhassett, J.
1. In this case the plaintiff seeks compensation for misdescription of the area of land which he had purchased from the defendants. The sale was completed. The sale-deed was executed. The purchaser went into possession; and it was not until the lapse of a year and a half from the date of the sale that it was discovered that the area of the land in question was short of the area mentioned in the sale-deed. There was no agreement to make compensation in case of misdescription such as one finds as a rule in conditions of sale or agreements of sale in England. Consequently the plaintiff can only succeed if he makes out a case of fraud, and that he was damnified by reason of fraud. The Munsif apparently found that there was no fraud, and that the statement as to the area was an innocent statement made by the vendors relying on the area mentioned in the sale-deed to them. The Subordinate Judge in appeal did not try the issue as to whether there was fraud in fact or not; but held that the misstatement as to the area was fraud in law which entitled the plaintiff to succeed.
2. The attention of neither of the Courts below was drawn to the judgments in the case of Derry v. Peek L.R. 14 App. Cas. 387. Sir Frederick Pollock in his Law of Fraud in British India--one of the Tagore Law Lectures--throws out the suggestion that Courts in India need not follow decisions of the House of Lords in England. In one sense that is true. The House of Lords is not the Court of Appeal from Courts in India. In another sense it is in our opinion a suggestion not capable of support. The House of Lords is the highest legal tribunal in England. It is the legal tribunal which lays down the law, subject to the rights of Parliament, for Great Britain and Ireland. Their Lordships of the Privy Council have held that, where the law is not certain in India, Courts in India ought to follow the law of England. In any event, the Judicial Committee of the Privy Council, being composed almost exclusively of the Lords of Appeal, presumably would decide a point of law like this as it was decided in the House of Lords. We, at all events, feel bound to accept the law as laid down by the House of Lords in Derry v. Peek, as on this particular point it does not appear to be in conflict with any of the Code law of India. We are not now dealing with a case in which a plaintiff asks, on allegations of misrepresentation, to avoid a contract. We are dealing with a case in which a plaintiff seeks compensation or damages for injury alleged to have been suffered by him by reason of misrepresentation as to a matter which is alleged to have been one of the bases of the contract. It appears to us that in order to obtain compensation or damages, there being no agreement to pay compensation in case of misdescription, and this not being a case for specific performance of a contract, the plaintiff must make out a fraudulent misrepresentation which he accepted as true and which induced him to enter into the contract, and, further, which caused him damage. The Subordinate Judge, if his attention had been drawn to the decision of the House of Lords to which we have just referred, would no doubt have framed and tried the proper issues of fact. As those issues of fact which we deem necessary to the disposal of the case have not been tried, we must refer under Section 566 of the Code of Civil Procedure the following issues for trial by the Lower Appellate Court:
1. Was the statement as to the area made by the vendors with an honest belief in its truth, or was it made without belief in its truth, or recklessly by the vendors careless as to whether it was true or false?
2. Did the vendee-plaintiff in this case conclude the contract of purchase believing that the statement as to the area was correct, and was he induced to complete that contract believing that statement to be correct?
3. As it has already been found by the Lower Appellate Court that the plaintiff did suffer damage to the amount stated, we need refer no issue on this point. Ten days will be allowed for objections on the return of the findings.