1. The real question in this appeal is whether or not the respondent is entitled to have a certain sale to him set aside; or whether he is bound by it and only entitled to compensation for a certain misdescription in the property sold. The facts are as follows: The application to the Court below was by one Aghore Nath Mookerjee, who was the purchaser of certain premises comprised in lot No. 3, at a sale held by the Registrar in the mortgage suit on the 8th July 899. The applicant asked for one of three reliefs: he asked for the rectification of the boundaries in the certificate of sale of the premises sold to him or for compensation in respect of a certain cock-room as to which he says there has been a misdescription in the particulars, or otherwise that the sale to him of the premises might be 'Set aside, and the purchase-money refunded with interest. Nothing turns upon the first head of relief sought: this has been abandoned.
2. The property, lot 3, is thus described in the notification: 'All that partly three-storied, partly two-storied, and partly one-storied tenanted house and premises No. 8, Ram Comul Mookerji's Street, at Kidderpore in the suburbs of Calcutta, and the land appertaining thereto, and on part whereof the same is built, containing 7 cottahs 1 chittack and 13 square feet, and bounded on the south by Earn Gomul Mookerji's Street, on the west by a lane with privies belonging to the estate of Digumbar Dass, deceased, oh the east by a blind lane, and on the north by the dwelling house of Prokash Chunder Mookherjee.' The conditions of sale contained this condition (No. 12): 'If any error or misstatement shall appear to have been made in the particulars or description of the property, such error or misstatement, if capable of compensation, shall not annul the sale nor entitle the purchaser to be discharged from his purchase, but a compensation shall be made to or by the purchaser, as the case may be, and the amount of such compensation shall be settled by a Judge in Chambers.'
3. On the 8th of July, the applicant paid a portion of the purchase-money and by an order dated the 19th August 1899 it wag ordered that the applicant should be at liberty to pay into Court the balance of the purchase-money with interest, 'but without prejudice to his right to raise any question as to title or compensation, with liberty to the petitioners to apply with regard to the boundaries of the property, if so advised, and that thereupon the sale be confirmed and a certificate of sale should be granted to the petitioner as the purchaser of the property as aforesaid.' The balance of the purchase-money was paid in. The applicant complains that there has been an error or misstatement in the particulars, or misdescription of the property in two respects. He says that he will not get the area, which was sold to him, seven cottahs odd, unless a certain lane with certain privies shown on the plan (Exhibit A) are included. He is right in this contention, and it has been conceded by Mr. Pugh, who appears for the Administrator General of Bengal, the vendor, that the lane and privies must be given to the applicant. I need then say nothing more about this.
4. Then he says that a certain cook-room shown on the plan as the building on the north-west corner just above the words 'open space covered' was intended to be included in his purchase; that it is not included, and consequently there is an error or misstatement in the particulars in regard to this cook-room--an error or misstatement of sufficient importance to warrant him ashing to have the whole sale annulled. This cook-room has A boon sold to the purchaser of lot No. 4, and he will not give it up. It has been conceded by Mr. Pugh that there has been an error or misstatement in the particulars as to this cook-room, and we are, therefore, relieved from going into that question.
5. Then arises the question. What is the relief to which under those circumstances the appellant is entitled
6. Is he entitled to have the sale annulled, or only to compensation for the error or misdescription in question?
7. The learned Judge in the Court below, without giving his reasons for his conclusions, only said that ho thinks 'the best and the fairest course was to annul the sale,' and has accordingly done so.
8. The Administrator-General appeals against that decision, and his contention is that, having regard to the circumstances of the case, it is not one of those cases in which the misdescription goes to the very essence of the contract and materially alters the substance of it, but that it is a case in which an adequate compensation can be given, and he relies upon the 12th condition. The applicant himself puts compensation in the forefront of his claim, and only asks that the sale may be set aside, if he is not entitled to that. This is how I road the expression 'otherwise' in the prayer of his application. And the reservation in the order of the 19th August 1899 points to compensation, and not to an annulment of the sale.
9. The purchaser says, however, that the house is valueless without the cook-room, and he says in paragraph 19 of his petition that the lot so purchased by him will not be habitable, inasmuch as there is no other place in the said promises which can be used for a kitchen, and a house without a kitchen is of no use. And that view is supported, though not so strongly, by Mr. Cotton, who says that there does not appear to be any other suitable place in premises No. 8, Ram Comul Mookerji's Street, to erect a cook-room.
10. The question then resolves itself into this: whether the misdescription goes to the essence of the contract and materially' alters the substance of it, so that the purchase cannot be enforced upon the purchaser. I may refer to the case of Fawcett and Holmes (1889) L. R. 42 Ch D. 150, where the Court lays down that in each case the question, depends on the view of the Court as to the importance of the misdescription.'
11. Looking at the plan, and giving all due weight to the applicant's evidence, I think it is difficult to say that this misdescription goes to the very essence of the contract. No doubt a house without a cook-room is not of much use for purposes of habitation; but looking at the plan and the nature of the property sold, I am not disposed to say that there is no place on the premises where a cook-room cannot be built, and if so, the error in the particulars is one which to my mind is capable of compensation, and condition 12 applies.
12. The misdescription does not appear to me to be of such importance as to warrant the Court in saying that the sale ought to be annulled; on the contrary, I think the case is covered by the 12th condition. It has not been disputed that the purchaser is entitled to an enquiry as to what the amount of compensation ought to be.
13. There is one other point which was taken as a preliminary objection, though rather late, that the appellant is out of time as regards his appeal. Without going in detail into the dates, I think that in the present case the time for appealing must be taken to run from the time when the order appealed against was signed.
14. The result is that the order of the Court below wilt be discharged, and a declaration made that the petitioner is entitled to compensation in respect of the misdescription in relation to the cook-room, the amount to be determined by the Judge in Chambers; and there will also be a declaration that he is entitled to the lane and the privies to the west of the premises.
15. We allow no costs of this appeal as between Mr. Pugh's and Mr. Garth's clients. Mr. Sinha's client will have his costs of this appeal from Mr. Pugh's client. We do not interfere with the order as to costs in the Court below.
16. The only difficulty that I have felt in this case is whether the compensation which the auction-purchaser A might claim under No. 12 of the conditions of sale is such as is contemplated by that rule of sale, or whether relief cannot he more properly and more easily granted by a resale. This was apparently the opinion' held by Mr. Justice Sale. Ordinarily it would be easy in a case within this condition of sale to ascertain the amount of compensation due to an auction-purchaser by reason of any error or misstatement in the particulars or description of the property sold. In the present case the compensation will be determined not only by a deduction of the value of the land which he has not obtained, but in addition to that it must be ascertained what is the depreciation in the value of the premises actually purchased by the loss of this land, and the out-houses standing thereon. This cannot be readily ascertained. The inquiry will involve some expense and delay, whereas a resale would give the same result to the parties without such inconvenience. The amount is no doubt, however, capable of compensation, and on this ground I agree with the order which it is proposed to give.
17. I also agree with the learned Chief Justice, and for the reasons stated by him, in thinking that this appeal should be allowed, as well as with respect to the enquiry directed regarding the amount of compensation to which the applicant is entitled.
18. No question has been raised as to the authority of the Court in & proceeding such as the present to go into that question. And what we have to determine is whether, upon the proper interpretation of the 12th condition of sale, the error which has admittedly arisen in regard to the property sold comes within the condition and may be made the subject of compensation.
19. It appears to me that it would be difficult, in view of the form in which the applicant sought the assistance of the Court, to say that this question ought to be answered otherwise than affirmatively. What he asked for was that the western boundary of the premises sold might be rectified, or that such compensation should be allowed him in respect of the cook-room as to the Court might seem proper, or 'otherwise,' that is, failing redress in either of these forms, that the sale might be rescinded. He asked for compensation as an alternative to a rectification of boundaries, 'which latter it was not in the power of the Court to grant. It is difficult to see how he can now say that the case was not a fitting one for compensation.