1. The point for decision in this case is no doubt one of some importance, and if we entertained any serious doubt upon it, we should certainly have reserved it for further consideration. But it really seems to us not to admit of any question.
2. The learned Counsel for the appellants rested his contention upon several points:First, that the rule of English law as to guarantee for quiet enjoyment, which is involved in a demise of property has not been applied to cases in this country; next, that a darpatni is not a lease, but is rather an out-and-out sale; third, that if there were any general principles which otherwise enabled a purchaser to look for indemnity, he had deprived himself of that protection by making a particular stipulation; and last, that in fact the purchaser has had his consideration for that for which he paid the value, and therefore he has no right to be indemnified.
3. Now, it seems to us that patnis, darpatnis, and sepatnis, although they may not be in strict analogy with leases in England, lie somewhere between out-and-out sales and leases, and that at all events they contain in themselves sufficient of the nature of a lease to incline us to give the grantee or taker, in cases where it is otherwise equitable, that protection which a lessor in England is understood to guarantee his lessee for possession of the land. In the first section or preamble of Reg. VIII of 1819, patnis and the subordinate darpatnis and sepatnis are throughout spoken of as tenures and under-tenures, and the instruments granting them are called leases, The fact that a consideration is commonly paid does not seem to us to make the transaction as one of pure sale, because it arises from this generally that the grantors are persons in need of money. Their needs vary with circumstances, and according as their need for money is greater or smaller, the consideration is in proportion larger or smaller, and the rent reserved is accordingly smaller or greater. It seems to have been thought, not only by Mr. Justice. Kemp, but also by Sir Barnes Peacock, that the rules applicable to the relation of Landlord and Tenant in England, would be applicable in this country, whenever no precise rule regulating the subject is to be drawn from the. Hindu or other common law, and certainly where those principles appear to be equitable, we should be inclined to apply them.
4. Then it is said that the plaintiffs in this case have put themselves out of Court by stipulating for the refund of their purchase-money in a particular contingency.
5. Now, putting aside the fact that deeds in this country are not prepared with the assistance of attorneys or counsel, and that we are not necessarily bound to draw the same inference from stipulations or omissions here as we should draw in England, it seems plain enough that the parties in this case sought to provide for the consequence of any act of bad faith as between the grantor and the grantee. It may be that they overlooked the fact that the law already provided sufficient protection, but at any rate they thought it advisable to insert this stipulation, and it was accordingly inserted. What has occurred in this case, however, is an accident of a different kind. No bad faith is imputed to either party, but the vis major of the Court has been called into exercise, and the transaction has proved altogether void. On its being pointed out that the regulation in such cases expressly protected the purchaser of the tenure which had been sold and of which the sale had been afterwards set aside, the learned Counsel suggested that the express provision for protection in his case would seem to exclude the protection going further. But it seems to us that that is not quite the effect of the section. The section does not so much declare that the purchaser, whose sale is afterwards set aside, shall be indemnified, as provide for the precise, immediate, and simple manner in which that is to be done, by directing that he shall be made a party to the suit for setting aside the sale, and that the decree by which the sale is set aside shall contain a provision for his being indemnified.
6. Then, in the absence of any precise rule, this Court is called upon to apply the principles of equity and good conscience. We find that the transaction between the plaintiff's and the defendants in this case is the direct result and outcome of a previous transaction in which the defendants had paid money, and in which they had been indemnified on the transaction being set aside. We have no doubt that in like manner as they have been indemnified for the loss they ought to be compelled to refund to their grantees, the plaintiff's, the amount paid by them. For these reasons we think the Judge is right, and that this appeal must be dismissed with costs.