1. The defendants are the appellants. On 30-4-1945 they entered into an agreement with the respondent Ex. P. 4 for the sale of a cocoanut thope for the price of Rs. two lakhs. An advance of Rs. 25000 was paid on that date. The respondent made further payments towards the sale price and got into possession of the properties on 14-7-1945: vide Exs. D. 1 and D. 2. The transaction itself was completed by the execution of a sale deed Ex. P. 15 by the appellants on 20-7-19-15. On 2-9-1946 the respondent sent a notice, Ex. P. 16, wherein he complained that the extant of the property given in the sale deed was not correct, that there was a deficiency of about 21 grounds and that the appellants should pay Rs. 32500 by way of compensation.
2. The appellants sent a reply, Ex. p. 17, on 12-10-1946. They stated that what was sold was a cocoanut thope within well-defined boundaries, that the extent of the properties was immaterial and that the purchaser was not entitled to any compensation. Thereupon the respondent filed the present suit for recovery of a sum of Rs. 24097 by way of compensation and damages. It is alleged in the plaint that the appellants represented and assured the purchaser that the property was of the extent of 6 cawnies, 5 grounds and 1035 1/4 square feet, that on the basis of this assurance the price was fixed at Rs. 1325 per ground, mat in fact there was a deficiency to the extent of 15.4 grounds, that the representations of the appellants aforesaid were fraudulent and that they were liable in damages. The amount of compensation claimed was Rs. 24097 particulars for which were given in para. 2 of the plaint. The defendants denied that they made any specific representations as regards the extent Of the property and stated that they took the measurements only from the previous title deeds, that what was agreed to be sold was only the cocoanut thope and that the extent was a mere misdescription, that there was no fraud on their part and that the plaintiff was not entitled to any compensation.
3. The following issues were framed:
l. Did the defendants represent that the suit property which they sold as per the sale deed executed by them on 20-7-1945 consisted of 6 cawnies 5 grounds 1035 1/4 sq. ft. and was the sale price arrived as on 'the basis of the extent as alleged by the plaintiff or was the extent inadvertently inserted and the boundaries alone being the criterion as alleged by the defendants in para. 9 of their written statement? ,
2. Are the defendants liable for compensation for the deficiency in extent and if so to what extent?
3. Are the defendants liable for extra charges incurred by the plaintiff by way of stamp and registration and interest and loss of profits claimed by the plaintiff?
4. Is the suit bad for non-joinder of parties?
5. To what relief is the plaintiff entitled? (4) The suit was tried by Bell J. As appears from the judgment two contentions were urged before him. One was that the property conveved was a parcel of land within well-defined boundaries and that the mention of the area was a mere misdescription and that the plaintiff had got what all he had bargained for namely, all the properties within the stated boundaries and that, therefore, he was not entitled to any compensation. The learned Judge agreed with this contention and observed as follows:
"He (advocate for the defendants) says that if one takes the sale deed alone and disregards all the surrounding circumstances, letters and other documents in accordance with the rule indicated in -- 'Durga Prasad v. Rajendra Narayanan'. 41 Cal 493 at p. 507 (PC) (A) then the fact that there is an inaccurate description of the area of the land in question does not matter, because in the sale deed the property is otherwise clearly described by boundaries.
Undoubtedly, if that were all that was to be said about this case, he would be right; unfortunately, however, there is another clement which has entered into the transaction and that is the element of fraud."
5. Then the learned Judge dealt with the contention of the plaintiff that the defendants had committed fraud; examined the documentary evidence in the case and came to the conclusion that the appellants knew the real extent of the property conveyed under Ex. P. 15 and that they made deliberately false statements giving a larger extent for the purpose of inducing the plaintiff to enter into the transaction and he accordingly granted a decree in favour of the plaintiff for the amount claimed by way of damages for fraud. It i3 against this decree that the defendants have preferred this appeal.
6. Mr. K.V. Ramachandra Aiyar, the learned advocate for the appellant, argues that the finding of the learned Judge that his clients had been fraudulent is not justified by the evidence.
7. The first question that has to be determined is whether the appellants knew the real extent of the property and whether they were guilty of fraud in describing the property as of the extent of 6 cawnies 5 grounds, 10351/4 sq. ft. We have been taken through the entire record. We are of opinion that the evidence does not justify this finding. In fact the learned advocate for the respondent made no serious attempt at supporting the judgment on this point. We shall, therefore, briefly refer to the broad features of the case bearing on this question. The property which is the subject matter of the sale was purchased by Munuswami Gramani, the father of the appellants, on 2-2-1926 under Ex. P. 1. It is there described as a cocoanut garden and its boundaries are well-defined and its extent is stated to be about 6 cawnies 5 grounds and 1035i sq. ft. Munuswami Gramani paid only a small portion of the price under Ex. P. 1 and for the rest he executed a mortgage. Shortly thereafter he died and the appellants became entitled to the property. They were minors and their mother was acting as their guardian. The mortgage executed by Munuswami Gramani was never redeemed and it was being renewed from time to time in favour of various persons and 'one respondent actually took delivery of the title deeds from the mortgagee.
8. It is thus clear that the title deeds relating to the suit property never came into the possession of the appellants. The extent of the property as given in Ex. P. 4, the agreement dated 30-4-1945 was copied from Ex. P. 1 and in all the documents relied on by the plaintiff the same extent is repeated. The appellants gave a statement to the respondent on 7-5-1945, during the progress of the negotiations. That is Ex. P.- 6. There they say:
"We were very young when our father died, we had no opportunity to handle the title deeds of 59, 60, 60A Edward Elliot. Road, Mylapore, such of the title deeds as were available were all with the mortgagees."
The correctness of this statement has not been impugned and it strongly negatives the supposition that the appellants must have had knowledge of the true extent of the property.
9. Some comment was made on the fact that while in some documents the extent is given as "about" no such qualification is to be found in some other documents but we are unable to draw any conclusion from this variance, because these kinds of statements occur indiscriminately' at all stages of the correspondence. On 30-4-1945 two documents come into existence, Ex. p, 4, agreement and Ex. p. 5 receipt for payment of Rs. 25000 by way of advance. In Ex. p. 4 the-property is described as measuring, about 6 cawnies 5 grounds and 1035i sq. ft. whereas in Ex. P. 5 the word "about" is omitted. Then again Exs. P. 6, P. 7 and p. 7 (a) are all of them, dated 7-6-1945 and delivered to the plaintiff for investigation of title. While Exs, P. 6 and P. 7 omit-the word "about" in describing the extent, Ex. P. 7 (a) mentions the property as measuring about 6 cawnies 5 grounds and 10351/4 sq. it. It is, therefore, not possible to draw any inference that the appellants knowing the real extent deliberately omitted the word 'about" and thereby practised fraud on the plaintiff.
10. Exhibit P. 9 h a letter dated 16-9-1945 sent by the appellants to the plaintiff. Therein they ask for advance payment of portion of the consideration so as to enable them to discharge their debts. The statement in Ex. P. 9 which is relied on by the plaintiff is "the monthly rent for the-garden is Rs. 800, extent 150 grounds". The extent given in this letter differs from that given, in the other letters and can only be regarded as approximate.
11. The document most relied on against the appellants is Ex. P. 10, which is a copy of a letter-addressed by the appellants to the Tahslldar of Madras. It is as follows
The Tahsildar of MadrasP2 . Sir,
Sub: Patta for R. S. Nos. 1064, 1071, 1074, G cawnies, 5 grounds, 10351/4 sq. ft.
Please issue a patta for the above property. Our mother was the guardian and we are the-only sons who have since become adults. The-matter is urgent as we are arranging for sale-of the property.
Sd. M. Delli Gramani,
and Sd. M. Pumshotham;"
12. The argument for the plaintiff is that in 1932 the register in the Collector's office gave the-correct extent of the cocoanut thope which is the subject matter of the sale, that the appellants must have had knowledge of it and that Ex. P. 10 was given to the plaintiff with a view to put him off the track and mislead him into-thinking that the correct extent was six cawnies, 5 grounds and 1035J sq. ft. and prevent him from-ascertaining the correct extent from the office of the Collector. Defendant 2 as D. w. 1 has deposed that the original of Ex. P. 10 was taken by the plaintiff for the purpose of being despatched to the Tahsildar and that he signed it and the original only at the instance of the plaintiff. Plaintiff as P. w. 2 has denied this.
13. We find it difficult to impute to the appellants knowledge of what had taken place in the-Tahsildar's office in the year 1932. They were then minors. Their mother put her thumb impression in the register in the Collectorate, Ex. P. 11. There is no proof that an extract of this was obtained by the mother or that the appellants were aware of it. In view of the fact that title deeds had all along been with the mortgagees, the evidence on the side of the defendants-that they did not know of this seems probable. The extent appears to have been taken from'Ex. P. 1 and repeated in all the subsequent correspondence. On the materials, therefore, we are unable to hold that the appellants had become aware of the true extent of the property before- 1958 the date of sale and that they had made a fraudulent statement about the extent of the property in Ex. P. 15. The plaintiff is, therefore, not entitled to compensation on the ground of fraud.
14. It is, however, argued by Mr. M.S. Ven-katarama Aiyar, the learned advocate for the respondent, that the plaintiff is entitled to compensation even apart from any question of fraud. He contends that the extent of the property is a material factor in fixing the price and if there is an error in the statement of that extent the vendor must submit to a proportionate reduction of the price even if he wag himself honest and mistaken and that on this principle the plaintiff is entitled to compensation. In support of this contention a number of authorities, English and Indian, and passages from text books were cited but they mostly deal with claims for specific performance and under the law the rights of a purchaser under a contract of sale materially differ from those of a purchaser under a deed of conveyance. While the matter is still in the stage of an agreement and if an error is discovered in the quality of the estate or in its quantity, the purchaser is entitled either to rescind the contract or to claim specific performance thereof with abatement of price on account of shortage in extent. In such a case if the deficiency was small in relation to the total extent of the property, Courts of Chancery granted specific performance with compensation. But where the deficiency was considerable, the relief by way of specific performance was refused, the party being left to his remedy at common law for damages.
15. --'Hill v. Buckley', (1811) 34 EB 153 (B), is the leading case on this point. There the agreement described the property as of the extent of 217 acres and 10 perches but on measurement it was found to be less by 26 acres. The purchaser claimed specific performance and abatement of price on account of the deficiency. There was a finding that there was no fraud on the part of the vendor. In granting a decree for specific performance and compensation, the Master of the Rolls observed as follows:
"Where a misrepresentation is made as to the quantity, though innocently, I apprehend the right of the purchaser to be to have what the vendor' can give; with an abatement out of the purchase money for so much as the quantity falls short of the representation. That is the rule generally, as, though the land is neither bought nor sold professedly by the acre, the presumption is that in fixing the price regard was had on both sides to the quantity which both suppose the estate to consist of. The demand of the vendor and the offer of the purchaser are supposed to be influenced in an equal degree by tile quantity which both believe to be the subject of their bargain. Therefore a rateable abatement of price will probably leave both in nearly the same relative situation in which they would have stood if the true quantity had- been orginally known".
16. The passages in the text books which were quoted on behalf of the respondent all deal with this question and refer to the relief which may be granted in suite for specific performance when there is innocent misrepresentation and they are based on the statement of law in -- '(1811) 34 ER 153 (B)'. This b what Darts says in his work on "Vendors and Purchasers", Edn. 8, Vol. I, p. 565:
"The purchaser will be entitled to compensation for a deficiency in quality even though the estate is not sold professedly by measurement."
This passage occurs in Chap. 13 which deals with matters relating to completion of the contract of sale and the authority cited is. -- '(1811) 34 ER 153 (B)', and similar cases. The same remark applies to the following passages from Williams on Vendor and Purchaser, Edn. 4 p. 725 "The purchaser, therefore, is as a rule entitled if it turns out that there is a mere deficiency whether of area, estate or right and whether substantial or not between the property described in the contract and that offered in fulfilment thereof to enforce the specific performance of the contract, taking such interest in the property sold as the vendor has and receiving compensation for the deficiency. For example, where a vendor described the land sold as containing a much greater quantity than its actual area, he was obliged at the purchaser's suit to convey what estate he had and to allow compensation for the deficiency." The passages from Sugden's "Vendors and Purchasers" are in the same terms and based on the statement of law in -- '(1811) 34 ER 153 (B)' and relate to claims for specific performance. In the Indian law this principle is embodied in Section
14. Specific Relief Act.
17. But when once the matter has passed beyond the stage of contract and the transaction has resulted in a conveyance it is well established that the purchaser has no longer the right to rescind the transfer on the ground that the representation is erroneous or claim compensation for the same. In -- 'Wilde v. Gibson', (1848) 9 ER 897 (C), Lord Campbell observed: "If there be in any way whatever, misrepresentation or concealment, which is material to the purchaser a Court of equity will not compel him to complete the purchase but where the conveyance has been executed, I apprehend, my Lords, that a Court of equity will set aside the conveyance only on the ground of actual fraud." In -- 'Brownlie v. Campbell', (1880) 5 AC 925 (D), Lord Selborne observed as follows: "The contract is ultimately entered into upon those terms. Passing from the stage of correspondence and negotiation to the stage of written agreement, the purchaser takes upon himself the risk of errors. I assume them to be errors unconnected with fraud in the particulars and when the conveyance takes place, it is not so far as I know, in either country the principle of equity that relief should afterwards be given against that conveyance, unless there be a case of fraud, or a case of misrepresentation amounting to fraud." These are cases in which the purchaser sought to rescind the conveyance but the same principle applies as regards claims for compensation. In di3cussing the rights of a purchaser after conveyance. Darts states the law in the following terms:
"A claim after conveyance, simply for compensation in respect of defects in the estate, will be dismissed in the absence of an express condition for compensation' (Chapter 13 at p. 683, Vol. II).
18. In Halsbury's Laws of England, Vol. 29, paragraph 669 is as follows: "After completion of the contract, the transaction is at an end as between vendor and purchaser, and as a general rule, no action either at law or in equity can be maintained by either party against the other for damages or compensation on account of errors as to quantity or quality of the property sold unless such error amounts to a breach of some contract, or warranty contained in the conveyance itself, or unless some fraud has been practised by the purchaser."
'Jollliffe v. Baker', (1883) 11 QBD 255 (E), is a direct decision on this point. There it was found that the actual extent of the property was less than what was specified in the sale deed and the error was discovered after the conveyance was executed. It was also found that there was no fraud on the part of the vendor. On these facts It was held that the purchaser, was not entitled to compensation. In -- 'Clayton v. Leach', (1890) 41 Ch D 103 (F), the lessor granted sub-lease stating that it was for 21 years. In fact it was only for a period of 14 years. The under-lessee claimed compensation on the ground of misdescription. It was held -that inasmuch as the transaction had been completed by the conveyance the claim for compensation was not maintainable in the absence of any agreement therefor In the deed of conveyance. It was observed by Cotton L. J. that "There was no contract to make compensation for defects", and by Lindley L. J. that "The covenants in-the lease give him no remedy". These authorities clearly establish the position that after conveyance a claim for compensation for errors is not maintainable apart from the terms of the deed.
19. As against these cases, the learned advocate for the respondent relied on the decision in --- 'In re Turner and Skelton', (1830) 13 Ch D 130 (G), as an authority for the position that such compensation should be claimed. In that case the agreement which preceded the conveyance contained a clause that if there was any error or misstatement the sale should not be annulled but compensation made. The error in quantity was discovered after the conveyance and a claim for compensation was made in terms of the above clause. It was resisted on the ground that that clause in the agreement ceased to have any operation after the conveyance was executed. In repelling this contention, Jessei M. R. observed as follows:
"No boob can be produced to show that it was thought to be settled law that a purchaser loses his right to compensation by taking a conveyance, and on what principle should he do so. The theory is that he has contracted to take compensation if there is any variation from the particulars. Why, then should he lose it by taking a conveyance? The only reason that can be alleged is that everything is supposed to be settled between the parties but why should there be an obstacle to the right of the purchaser when the defect is discovered afterwards?"
20. The 'ratio decidendi' of this case is that if in an agreement to sell there is a provision by the vendor to make compensation for deficiency it is not annulled or superseded by the conveyance. In coming to this conclusion the learned Master of the - Rolls followed the decisions in -- 'Cann v. Cann'. (1830) 3 Sim 447 (H) and -- 'Boss v. Helsham', (1886) 2 Ex. 72 (I). In both these cases, the agreement to sell contained a clause for compensation in. case of error. The deficiency in extent was discovered after the conveyance and compensation granted in terms of the agreement. The following observation of Kellv C. B. in -- '(1868) 2 Ex 72 at p. 77 (P, may in the connection be particularly referred to:
"I acquiesce in the general doctrine laid down on the subject in Sugden's Vendors and Purchasers, and in the difference which the author points out between objections entitling a purchaser to annul a contract before completion of the conveyance, arid those which may be raised after completion, where a Court of Equity will not interfere, and there is no remedy at law, even though the objections are well-founded, because they have not been taken in proper time. But in this case, as if with a view of avoiding these distinctions and differences, the parties- themselves have expressly contracted that if any mistake be made in the description of the property, or any error occurs in the particulars of sale, such mistake or error shall not annul the sale, but a reasonable compensation to be assessed in a specific manner, is to be given. Now, here it is to be observed that no distinction is made, though it would have been easy to make it, between an error or mistake discovered before, and one discovered after, ihe execution of the conveyance."
21. These cases proceed on the basis of an xpress agreement for compensation and do not touch the position that apart from any special contract the purchaser has no claim for compensation. It is scarcely necessary for us to add that the right to compensation recognised in these decisions has no legal relation whatsoever to the award of compensation by Courts of Chancery in actions for specific performance, where the relief was granted not in the enforcement of any agreement, express or implied, of the parties but in the exercise of an equitable Jurisdiction to mould the relief according to the justice of the case.
22. Now we shall examine the Indian uthorities that have been cited before us. In --'Abdulla Khan v. Abdur Rahman Beg', 18 All 322 (J), the plaintiff discovered after the conveyance that the actual extent of the property was less than what was mentioned in the sale deed. He sued for compensation. The finding was that there was no fraud on the part of the vendor. In holding that the plaintiff was not entitled to compensation the learned Judges observed as follows:
"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." This decision is directly opposed to the contention of the learned advocate for the respondent, who however referred to -- 'Doyal Krishna Naskar v. Amrita Lal Das', 29 Cal 370 (K), as dissenting from this decision. But that was a case of a court sale in which the auction purchaser claimed compensation from the decree-holder on the ground that the misdescriptions in the sale proclamation were fraudulent. The Court negatived that claim. Bannerjee J. based his decision on the ground that the considerations applicable to a private sale do not apply to a court sale. There is a passing observation by Maclean C. J. which might seem to throw a doubt on the correctness of the decisions in -- '18 All 322 (J)', but there is no decision that a claim for compensation can be maintained on facts as in the present case.
23. A case strongly relied on by the respondent is the decision in -- 'Suleman Vadu v. Tri-kamji Velji', 12 Bom HCR 10 (L). There, there was a sale of 30 acres, the price having been fixed at Rs. 500 per 'bigha'. After the sale the plot was measured and found to contain 19 acres. The purchasers claimed compensation for deficiency. West J. granted a decree and observed:
"The question seems to be whether the area of the field, as specified, was an essential part of the consideration for the payment made by the plaintiff or whether, although the area is set down as a matter of description he bought and took the field as a particular object Identified and estimated for the purpose of the contract independently of the circumstance of its area being or not being so much as 30 acres. Prima facie the specifications of the area implies we think that the area is regarded as material by the parties and is the quality, or one of the qualities specifically had in view as the basis of their contract."
24. The decision in this case is clearly right, because when price is fixed in terms of area such as acre or bigha and the total area is mentioned, then the extent is a material term and the vendor by implication warrant3 that the property is of a particular extent. The cause of action would then be really damages for breach of warranty contained in the sale deed. Moreover the reasoning in -- '12 Bom HCR 10 (L), proceeds not upon the general principle that in all cases of deficiency the purchaser is entitled to compensation but upon a construction of the terms of the particular sale deed. It is implicit in this decision that if the terms of the sale deed did not warrant a right to compensation the vendor cannot claim it as a matter of law and it appears to have been so understood in the case in -- 'Maha-rudrappa v. Lakshman', AIR 1932 Born 449 (M).
25. We shall now consider the decision in --'Venkatareddi v. Jamal Ahmed Saheb, AIR 1916 Mad 526(N). That was also a case in which the price was fixed in terms of acreage and deficiency was discovered after the execution of the sale deed. On the facts this case is similar to the one in -- '12 Bom HCR 10 (L)', and the decision that the plaintiff was entitled to compensation is clearly right because having regard to the method by which the price was ascertained it might be taken that the vendor warranted the correctness of the extent but there arc observations in the Judgment of Napier J. with which we find it difficult to agree. The learned Judge holds and in our opinion rightly that the claim for compensation could not be rested upon covenant for title, but after stating that the plaintiff would have been entitled to compensation if it had been a suit for specific performance Napier J. goes on to ask why the same claim should not be available after the conveyance. The decision in -- '(1883) 11 QBD 255 (E)', is cited before him, but he prefers to follow -- '(1880) 13 Ch D 130 (G).
26. We are unable to agree that the rights of the purchaser remain the same after conveyance as before thereto and we further fail to see that there is any conflict between -- '(1830) 13 Ch D 130 (G)' and -- '(1883) 11 QBD 255 (E)'. If there is an express agreement -- '(18SO) 13 Ch D 130 (G)' will apply. If not the matter will be governed by -- '(1883) 11 QBD 255 (E). While we agree with the decision in -- 'AIR 1916 Mad 536 (N)', we must respectfully dissent from the reasoning on which the decision is based. There is a later decision of this Court reported in --'Kondal Rao Naidu v. Dhanakoti Ammal', AIR 1938 Mad 81 (O), where the rights of a purchaser to claim compensation on the ground of misdes-cription in circumstances similar to the present case were considered. Gentle J. as he then was held, following the decision in -- '(1883) 11 QBD 255 (E)', that the plaintiff was not entitled to any such relief. We agree with this decision.
27. The learned advocate for the respondent also relied on certain observations in -- 'Mellor "V. Walmesley', (1905) 2 Ch 1C4 (P). There the point for decision was whether the property which was the subject-matter of the litigation passed to the grantee under the terms of the deed. Vaughan Williams O. J. held that the general description was cut down by the dimensions which formed a material part of the description and that the grantee was not entitled to the property while Romer L. J. took- a different view. The observations relied on for the respondent occur at page 174:
"I cannot, however, agree with the learned Judge that the present case is one in which the undoubted rule that, when you have in the words of description a sufficiently certain definition of what is conveyed inaccuracy of dimensions or of plans as delineated will not vitiate or affect that which is there sufficiently defined, applies because the description itself is a description of a piece of land situate on the seashore of certain dimensions which are set forth. These dimensions, in my opinion, are not an addition to something which has already been certainly described, but are part and parcel of the description itself. The words are not inaccurate statement of a quality of that which had already been certainly described or defined, but are part and parcel of that description or definition."
The case has no relevance to the point which we have to determine which is whether the plaintiff is entitled to compensation and not whether a disputed plot has passed to him under the conveyance. The same remarks apply to the case in -- 'Mohamed Abdul Karim v. Abdul Sattar', AIR 1941 Nag 162 (Q). There also the point for determination was as to what passed under the sale deed.
28. To sum up if there is any error in the statement of the extent of the property agreed to be sold the purchaser can claim specific performance with compensation if he can bring his case under Section 14, Specific Relief Act but if the contract has been completed by the execution of the sale deed then the purchaser can claim compensation if he establishes fraud; or if there is a special agreement for making compensation for errors in quantity or if there is a warranty that the extent conveyed by the sale deed is correct. Apart from such cases he has no right to compensation.
29. We have found that there was no fraud. Nor is there any agreement to make compensation for errors in extent. Can the plaintiff claim any compensation on the ground that there is a warranty as to the correctness of the extent. The case put forward in the plaint is that the price was fixed at Rs. 1325 per ground. If this is established it may be possible to grant relief to the plaintiff on the footing that there was an implied warranty that the extent mentioned in the sale deed was correct, but does the evidence establish it? We are of opinion that it does not. The agreement, Ex. p. 4, the sale deed, Ex. P. 15 and the entire correspondence between the parties. Exs. P. 5 to P. 9 refer only to the cocoanut garden and a lump sum as the price therefor. Nowhere do the documents suggest that the price per ground is entered into calculation. In Ex. P. 16 the notice sent by the plaintiff on 2-9-1946 it is merely stated that the price of two lakhs was arrived at on the basis of the extent. It is not stated that the price was calculated at Rs. 1325 per ground. That comes in for the first time only in the plaint.
30. It must be mentioned that there were on the property certain structures and an oil engine and their value was also included in the price. The plaintiff may be right when he deposed that their value was not considerable but the existence of these properties is sufficient to throw considerable doubt on the case of the plaintiff that there was a fixation of price in terms of per ground value. There is also a qualification of the extent by the word 'about' and the plaintiff states that that qualification was made for the purpose of covering .small deficiencies. The defendants deny that the price was fixed on the basis of per ground value and D. W. 1 has also given evidence to that effect. We think that this is probable. Bell J. did not base his conclusion on the existence of any such agreement as is pleaded in the plaint and as stated already he would have dismissed the suit but for the finding of fraud. We are of opinion that the plaintiff has not established that the price was fixed at Rs. 1325 per ground and that no relief could be granted to him on the basis of breach of implied warranty as to the correctness of the extent,
31. We are further of opinion that such an agreement should be established on the terms of the sale deed, Ex. p. 15 and it Is not open to the plaintiff to travel outside the deed and adduce evidence to prove that there was a warranty, 'de hors' the instrument. In -- 'AIR 1938 Mad 81 (O), already cited the price of the land was shown at a lump sum of Rs. 17500 and oral evidence was tendered for providing how the price was fixed. It was held that such evidence was inadmissible. Reliance was placed on the observations of Fry L. J. in -- 'Palmer v. Johnson', (1884) 13 QBD 351 at p. 351 (R):
"When a preliminary contract is afterwards reduced into a deed and there is any difference between them the mere written contract is entirely governed by the deed."
we think that such evidence is inadmissible 'under Section 92 of the Evidence Act. The result then is that the plaintiff has not established any ground entitling him to compensation for the error in the extent.
32. It remains only to add that Bell J. held on a construction of the sale deed that the intention of the parties was to sell a parcel of land within well-defined boundaries namely walls on the north, west and south and a row of houses in the east whose backyards form the eastern limit of the plot and that the measurements should be rejected as 'falsa demnostratio' and for this conclusion he relied on the observations of the Judicial Committee in -- '41 Cal 493 at p. 507 (PC) (A)'. We agree with this conclusion. A3 no argument has been addressed to us disputing the correctness of this construction we do not find it necessary to discuss the question at any length.
33. In the result this appeal will be allowed and the suit dismissed with costs throughout.