1. This is an appeal from a judgment of the Temporary Subordinate Judge of Masulipatam, allowing a claim for compensation by the purchaser of certain land in respect of a deficiency in extent. The District Munsif disallowed the claim on the authority of the case reported as Abdullah Khan v. Abdur Rahman Beg 18 A.p 322 : A.W.N. (1896) 81. The Subordinate Judge, Belying on the case reported as Doyal Krishna Naskar v. Amrita Lal Das 29 C.P 370, where Abdullah Khan v. Abdur Rahman Beg 18 A.P 322 : A.W.N. (1896) 81 was dissented from, allowed the claim. The basis en which the claim is made is not stated in the plaint, but it was sought in argument to base it on the implied covenant for title relying on the case reported as Tavala Nageswara Row v. Saripalli Sambasiva Raw 11 Ind. Cas.337 : (1911) 1 M.W.N. 361. In my opinion that case does not apply. A covenant for title, is not a covenant that the land purported to be conveyed is of the extent stated in the sale-deed, but, as shortly defined in Section 55 of the Transfer of Property Act, a 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. Further, this suit is well known in English Law and has never been based on a covenant for title. In my opinion the suit is brought for part failure of consideration owing to a mutual mistake. Admittedly where a contract has been made and one of the parties is unable to perform the whole of his part of it, but the part which must be left unperformed bears oiiy a small proportion to the whole of its value, a suit lies at the instance of the other party under Section 14 of the Specific Relief Act, (I of 1877) for direction by the Court for specific performance of so much of the contract as can be performed with compensation in money for the deficiency. If, therefore, the parties had discovered their mistakes as to the area prior to the conveyance, the vendee could have brought a suit asking for compensation; and seeing that the Specific Relief Act is intended to give reliefs of a certain class where an injury has been suffered, it seems necessarily to follow that a legal injury is presumed by this Act to exist, for which the Act provides a remedy at one stage. I am, therefore, clear that there is a cause of action arising out of a legal injury. This is the view taken by the Courts of Equity in England : vide the leading case of Hill v. Buchley 17 Ves. 394 : 11 R.R. 109 : 34 E.R. 153 and Dart's Law of Vendors and Purchasers, 7th Edition, page 675.
2. The only question that remains is whether this claim cannot be made after the execution of the conveyance. That point is expressly decided by Jessel, M.R., in In re Turner and Skelton 13 Ch. D 130 : 49 L.J. Ch. 114 : 41 L.T. 668 : 28 W.R. 312. The learned Master of the Rolls says as follows : No book 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 purchaser can only investigate the state of the property before completion by permission of the vendor, which permission the vendor is not bound to give. When the mistake is one which a purchaser could not by due diligence dissover, why should he be held not to be entitled to compensation?' The learned Master of the Rolls followed an earlier decision, Cann v. Cann 3 Sim. 447 : 30 R.R. 184 : 57 E.R. 1065 and decided in favour of the vendee. It is true that a different view was taken in Jolliffe v. Baker 11 Q.B.D. 255 : 52 L.J.Q.B. 609 : 48 L.T. 966 : 32 W.R. 59 : 47 J.P. 678 but I am prepared to follow the decision of this high authority as I find nothing in any Statute which makes the principle inapplicable.
3. The appeal will, therefore, be dismissed with costs.
4. Sadasiva Aiyar, J.--I entirely agree and have nothing to add.