1. In this ease the question is whether there is a contract excluding the applicability of Section 55, Clause 1 (g), T. P. Act. The appellant purchased the properties in question from the respondent and later on it was discovered that there was a charge on the property. Some amount was paid by the plaintiff towards the charge which had ripened into a decree and he filed the suit out of which the second appeal arises for recovery of the sum paid by him. The trial Court granted the decree but the appellate Court reversed it and hence the second appeal. The sale deed executed by the respondent in favour of the appellant is Ex. A dated 4th September 1937. The respondent bank had purchased this property in court auction held in execution of a mortgage decree in O.S. No. 27 of 1931 on the file of the Sub-Court, Tuticorin against one Shanmugasundaram Pillai and others. The document, Ex. A, recites that the properties described in the schedule attached thereto were the properties of the vendor, the vendor having purchased the same in court auction mentioned just now. It goes on to say, after referring to the court auction and the delivery of possession to the vendor,
the vendor has thereby acquired title to sell the same and whereas the vendor has agreed with the purchaser for the sale of the lands, buildings, trees and premises with all that stand thereon for the price of sum of Rs. 15,800 only. . . The vendor doth hereby convey and grant unto the vendee his successor and assigns all the right, title and interest of the vendor as purchased by him in court auction in the properties and parcels of lands, and all appurtenances thereto more particularly described in the schedule hereunder...
The question is whether there is a contract to the contrary within the meaning of Section 55. Section 55 says:
In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following...
Clause (1), Sub-clause (g):
The seller is bound to pay all public charges and rent accrued due in respect of the property upto the date of the sale, the interest on all incumbrances on such property due on such date, and except where the property is sold subject to incumbrances, to discharge all incumbrances on the property then existing.
In the present case the property was not sold subject to encumbrances. Therefore, in the absence of a contract to the contrary, the vendor is under an obligation to discharge the incumbrances then existing on the property, that is, the encumbrances existing on the date of the sale. In this case there is no express contract relied upon by the respondent. It was said that there was an implied contract and that implied contract is to be inferred from the sole circumstance that the title conveyed is described to be that derived under a court auction held in execution of the decree already mentioned. It is said that because the vendor expressly stated that what he conveyed was all the right, title and interest of his as purchased by him in court auction, a contract to the contrary is to be implied. As laid down by this Court in Mohamed Ali v. Venkatapatiraju A.I.R. 1920 Mad. 634, the contract to the contrary must be expressed in a clear and unambiguous language. The learned Judges said this at page 452:
The law is well settled that the effect of a covenant for title is not to be got rid of except by the vendor indicating to the purchaser by use of clear and unambiguous expressions that he did not mean to guarantee that he had a good title to the property and was entitled to convey the same.
The observations which were made with respect to title are equally applicable to the case of a covenant against encumbrances or to the obligation on the part of the vendor to discharge encumbrances then existing on the properties. Mr. Mulla in the Transfer of Property Act says this at p. 313, Edn. 2.
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. In Seaton v. Mapp (1846) 2 Coll. C.C. 556, Vice Chancellor Knight Bruce stated the principle of construction 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.
This is sometimes expressed to be that the provisions of Section 55 can be excluded only by an express contract, that is, by clear and unambiguous language contained in the sale deed itself, clearly indicating that the covenants, implied by that section with reference to which every person is supposed to contract, are not to apply in the particular cases. The decision of the lower appellate Court is reversed and that of the trial Court restored with costs both here and in the lower appellate Court. Leave refused.