1. This is a plaintiff's appeal against the judgment and decree of the Subordinate Judge, Delhi, dismissing the plaintiff's claim for refund of money as against defendants Nos. 2 to 8 who are the legal representatives of Azizud Din,
2. The property in dispute belonged to one Ghaus Mohammad, who died on the 29th October 1939 leaving a step-brother Nowab Qasim as his heir under Muhammadan Law. Syed Hussain defendant No. 1 claimed this property as donee from Ghaus Mohammad. On the 11th May 1942, Syed Hussain mortgaged this property to Abdul Rahim by a registered mortgage deed which is Exhibit P. 7 at page 55 of the paper book, and on the 13th August 1942 the same Syed Hussain made a sale of the property to Azizud Din and it was provided in a separate agreement which appears not to have been registered that he would be entitled to exercise the right of repurchase within three years from the date of the sale.
3. On the 24th March 1943, Nowab Qasim who was the heir of the original owner sold the property to Mohammad Ahmad Allahwala who brought a suit for possession against Syed Hussain and Azizud Din and Nowab Qasim on the 27th May 1943. On the 27th September 1943 Syed Hussain and Azizud Din sold that very house to Mohammad Ismail Japanwala for Rs. 5,000/- by Exhibit P. 3 which is at page 73 of the paper book. Mohammad Ismail Japanwala, was a party to the suit for possession which was brought by Mohammad Ahmad Allahwala. On the 31st May 1944, the suit of Mohammad Ahmad Allahwala was decreed and it was held that Syed Hussain and Azizud Din and therefore Mohammad Ismail Japanwala had no title in the property. This was upheld by the High Court.
4. On the 17th July 1945, Mohammad Ismail Japanwala brought the suit for return of purchase price and Rs. 616/- as damages or in the alternative as interest. The trial Court found that Syed Hussain and Azjzud Din had no title but Syed Hussain was liable to refund of the purchase price and not Azizud Din or his legal representatives. The plaintiff has come up in appeal praying for a decree against Azizud Din also.
5. In the sale deed the vendors are Hakim Syed Hussain executant No. 1 and Hakim Azizud Din executant No. 2. After reciting about the previous sale and the agreement of repurchase dated the 13th August 1942 it is stated in the deed of sale as under:
'We have entered into an agreement that out of the price of the house, executant No. 2 will receive Rs. 2360/- and rent on account of his right to sell the house from the vendee at the time of the registration of this sale deed, and executant No. 1 Rs. 2,650/-on account of his right to take back the property, which accrues to him under the said agreement from the vendee of the house at or before the time of the registration. According to this agreement, we both the ven-dors executants will distribute the price mutually. Both of us the executants are in possession of the house mentioned above, and have, as full owners, the right to sell the same without the interference of anybody.....If per chance, any person comes forward as a coparcener, co-partner, co-sharer, claimant or objector in respect of the house sold and the entire house sold or a part thereof goes out of the possession of the vendee, then we the vendors, i.e., I, executant No. 1 will be answerable therefor, liable for the costs of the Court and refund of the sale price to the extent of the loss suffered by the vendee.'
The counsel for Mohammad Ismail Japanwala submits that on a true construction of this document the guarantee of title is not only on behalf of Syed Hussain but also on behalf of Azizud Din. As a matter of fact, so submitted counsel, Azizud Din was the owner of the property at the time when the sale was made and Syed Hussain had only a right of repurchase, and as the agreement in the latter's favour was by an unregistered document even under the law as it prevails in the Punjab no question of mortgage arises. In any case, there was a guarantee of title by both Syed Hussain and Azizud Din and therefore the decree should, it was submitted, have been against both of them. As I read the document, the deed of sale in favour of the appellant, I am of the opinion that this was a guarantee given by both Syed Hussain as well as Azizud Din, According to section 55 of the Transfer of Property Act, the princi-pals of which apply to this State, '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'. At page 339 in Mulla's Transfer of Property Act the words 'in the absence of a contract to the contrary' have been construed in the following words: 'The implied conditions enumerated in this section are supplemented or varied in actual practice by numerous particular conditions. Such conditions are strictly construed in favour of the party whose rights are restricted.'
Mulla has also referred to 'SEATON v MAPP', (1846) 2 Coll 556 at p. 562, where Vice-Chancel-lor Knight Bruce said as follows:
'I think, and have always thought that when a vendor sells property under stipulations which are against common right, and place the purchaser in a position less advantageous than that in which he otherwise would be, it is incumbent on the vendor, to express himself with reasonable clearness; if he uses expressions reasonably capable of misconstruction, if he uses ambiguous words, the purchaser may generally construe them in the manner most advantageous to himself.'
6. It appears to me that the learned Subordinate Judge was misled by the fact that in the deed of sale particularly in that clause which dealt with indemnity the words were--'then we the vendors, i.e., I executant No. 1 will be answerable therefor'. The rule of construction in regard to these contracts is what I have quoted from Mulla's Transfer of Property Act, and therefore the plaintiff was entitled to have these conditions construed in his favour. The whole tenor of the document shows that the liability was of both Syed Hussain and Azizud Din and it could not under the law, from these words alone which I have quoted above, be held that in regard to this matter the liability of Azizud Din had been excluded. As I have said before the real vendor was Azizud Din himself. In these circumstances it could not be said that the real seller would not be liable to the return of the purchase price but a person who had only a right of repurchase would be. I have already said that the true effect of the transaction of the 15th August 1942 was that there was a sale by Syed Hussain in favour of Azizud Din but Syed Hussain had a right of repurchase of the property and this did not amount to a mortgage.
7. In these circumstances in my opinion the learned Judge was in error in holding that Azizud Din was not liable for the return of the purchase price, I therefore allow this appeal, modify the decree of the trial Court, and decree the suit against Azizud Din also.
8. In view of the fact that there is no appearance for Azizud Din, the parties will bear their own costs in this Court and the Court below.
9. I agree.