1. In this case I have to consider whether a good title can be made to a certain house which has been sold in pursuance of a mortgage decree.
2. The matter was in accordance with the rules of the Court referred in the first instance to the Registrar, who has reported that a good title cannot be made out to the property.
3. Counsel on both sides have cited oases to me as to what sort of title the Court can force on an unwilling purchaser.
4. The result of recent cases on this subject is laid down with precision in the last edition of Fry on Specific Performance, p. 388. On examining the title I will refer afterwards to what is there laid down. The abstract of title started with the mortgage, which recited that the mortgagor was possessed of, or otherwise well and sufficiently entitled to, the house and premises.
5. On investigation the purchaser discovered a deed of the 11th of March 1858, made between the mortgagor and his, brother Earn Chunder Doss and referring to this and other properties. This deed recites that one Jogul Kishore Doss, who was the paternal grandfather of these brothers, purchased in his lifetime (in the name of and appropriated for the sole purpose of the worship of a deity called 'Muddun Mohunjee' established by him) two houses, one of which is the house in question.
6. The first question I have to decide is whether there was any endowment prior to the deed of 1858; the second question is whether the deed of 1858 created an endowment; and the third question is whether, if on the materials before me I come to the conclusion that there has been no endowment, there are circumstances in the title such as to prevent me forcing this title upon an unwilling purchaser. I think the case of Alexander v. Mills L.R. 6 ch. 131 shows that I must come to a conclusion on the first two questions. There Lord Justice James says: 'As a general and almost universal rule the Court is bound as much between vendor and purchaser as in every other case to ascertain and determine, as it best may, what the law is, and to take that to be the law which it has so ascertained and determined.'
7. As to the first question I have come to the conclusion that there is no evidence from which I can be satisfied that there was an endowment prior to the deed of 1858. Much reliance is placed upon an extract from the Collector's register,, showing that on the 22nd of May 1802 a pottah was granted to the idol; that Jogul Kishore, the alleged dedicator, was described as shebait of the idol; and that in 1853 Earn Chunder and Nobin Chunder, the parties to the deed of 1858 and grandsons of Jogul Kishore, were described as shebaits. There is no evidence of the terms of the alleged dedication, and except the recital in the deed of 1858 which is in vague terms, there is nothing to show that the profits of the houses were appropriated to the use of the idol The fact that the house was purchased in the name of the idol, and that the purchaser was described in the Collector's books as the shebait, proves nothing. I cannot be satisfied that there was an endowment until I know what the terms of the endowment were. In the case of Brojo Soonduree Debia v. Ranee Luchmee Koonwaree 15 B.L.R. 176 note : 20 W.R. 95 there was a conveyance to the idol and the shebait, but there was no evidence of the objects of the alleged endowment.
8. It is true that it is difficult to prove the terms of an old endowment, but there is no definite evidence as to what took place before 1858, from which I could infer the terms of the endowment. There is no doubt that the deed of 1858 is inconsistent with the alleged anterior endowment, and that since 1858 the parties have acted on the deed of that year.
9. I think I must bold that prior to the deed of 1858 there was no endowment. In this conclusion I agree with the Registrar. Does the deed of 1858 create an endowment? The first paragraph of the deed recites the partition of the moveable property of the two brothers. The second and third paras, are as follows: 'That the said, Ram Chunder Doss, his family and descendants, shall alone occupy and live and reside in the said house and premises No. 19, Baboram Seal's Lane in Mullungah aforesaid, and shall continue to do so for ever as permanent tenants to the said ancestral idol called 'Muddun Mohunjee,' paying for the same as hereinafter mentioned the rent at the rate of Company's Rupees Five per month, commencing from the first day of the present month of Magh in the Bengalee year One thousand two hundred and sixty-four, and the ground-rent and house-tax, including the expenses for the repairs of the said last-mentioned house and premises, shall be paid and borne by him the said Ram Chunder Doss and his descendants.
That the said Nobin Chunder Doss, his family and descendants, shall in like manner occupy and live and reside in the house and premises No. 10, Carra Doss's Lane in Mullungah aforesaid, and shall continue to do so for ever as perpetual tenants of the said ancestral deity called ' Muddun Mohunjee,' paying for the same as hereinafter mentioned the rent at the rate of Company's Rs. 5 per month, commencing from the said first day of the present month of Magh One thousand two hundred and sixty-four, and the ground-rent and house-tax, including the expenses for the repairs of the said last-mentioned house and premises, shall be paid and borne by the said Nobin Chunder Doss and his descendants.
10. These are the two houses said to be endowed.
11. The 4th paragraph recites the payment of Rs. 1,000 for the purpose of adding buildings to the house No. 10, Carra Doss's Lane, that sum being the difference in value between the two bouses.
12. The 5th and 6th paragraphs are as follows: 'That the said Ram Chunder Doss and Nobin Chunder Doss respectively, and each of their heirs and representatives, will and shall perform the said worship of their said ancestral deity called 'Muddun Mohunjee,' each doing so turn by turn for the space of one year the said Ram Chunder Doss doing so first, commencing from the first day of the present month of Magh One thousand two hundred and sixty-four, and the said Nobin Ohunder Doss doing so in the following year, and the said Ram Chunder Doss doing so the next following year, the said Nobin Chunder Doss the then next following year and so on year by year, and for the purpose of such worship the party or the heirs and representatives of the party, whose turn it shall be to perform the same, shall be at liberty to take and keep with him and them the said idol, together with all jewels and other furniture belonging to the said idol to his usual place of abode as aforesaid during the year of his own turn, and in the event of the party, or the representatives of the party whose year or turn it shall be for him to perform the said worship, not performing the same, it shall be optional to the other party or his representatives to perform the same during that year at the expense of the defaulter.
That each of them, the said Ram Chunder Doss and Nobin Chunder Doss respectively, and their and each of their heirs and representatives, shall, during his and their own turn of worship, apply himself and themselves towards the charges and expenses of such worship as aforesaid, the said monthly rents of the above-mentioned two several houses and premises payable by each of them and his heirs and representatives as aforesaid, together with the additional sum of Company's Rupees Five per mensem to be paid during his and their own turn of worship out of his and their own pocket, and in case any surplus shall remain in the hands of the said parties of the first and second parts, or their heirs or representatives after defraying charges and expenses attendant on the daily worship of the said idol, or for the periodical religious ceremonies thereof throughout the year during his and their turn of worship, the same shall be applied towards the making of some property or other of the said idol.
13. There then come mutual releases.
14. I think this deed does not create an endowment or a charge of any kind. It is only an attempt to tie up the property for the benefit of the heirs of the brothers. The Rs. 5 a month is called rent, but this is merely a name. It is not a rent charge. The deed itself (para. 5) provides the remedy in case of non-payment of this so-called rent. The ordinary remedies for the recovery of a rent charge are therefore excluded.
15. The house is not given to the idol. There is no valid gift of the house to any one. The Rs. 5 a month is not payable by the occupier of the house. It is only payable by the mortgagor and his descendants.
16. The cases of Rajendar Dutt v. Sham Ghund Mitter 6 C. 106, and Ashutosh Dutt v. Doorga Churn Chatterjee 6 I.A. 182 : 5 C.438, relied upon by Mr. Kennedy are distinguishable from the present case. In the former of those cases there was an express gift to the idol, and in the latter there was an express charge in favour of the idol.
17. The next question is whether, having come to the above conclusions, I must still refuse to force the title on the purchaser.
18. At page 388 of the last edition of Fry on Specific Performance, the cases in which a Court would consider a title doubtful are summarized. The only two which can have any application here are numbers 1 and 4. These are:
(1) That there is a reasonable decent probability of litigation ; and
(4) Where the title depends on the construction and legal operation of some ill-expressed and inartificial instrument, and the Court holds the conclusion it arrives at to be open to reasonable doubt in some other Court.
19. I do not see that there is any reasonable probability of litigation. No one seems to have disputed the mortgage or to have asserted any claim on behalf of the idol. I do not think that any Court could have a reasonable doubt as to the construction of this document. There is in it no trace of a gift or charge in favour of the idol.
20. In the result I must hold the title to be a good one. As the state of the title has only been-disclosed be the enquiry, the purchaser must have his costs up to and including the Registrar's report.
21. These will be paid by the plaintiff and added to his claim. The purchaser must pay the plaintiff's costs of the exceptions and of the hearing before me. The rest of the plaintiff's costs must be added to his claim.