1. This is an application for the review of a judgment dated the 8th May 1912. The matter is in my opinion an exceedingly unfortunate one. On the 6th of May 1912 the purchaser at a sale held by the Commissioner of Partition under the provision of an order of the 23rd of May 1910 applied to the Court that a reference should be directed to the Registrar of the Court to enquire and report under Rule 426 as to whether the vendor could make a title to the property. That order was made, and it was not then discussed as to whether the order was made in respect of an ordinary sale by the Court, or whether it was a sale out of Court. Subsequently an application was made to have that order set aside on the ground that it was ex parte. It appearing, however, from the records of the Court that the persons who had the carriage of the proceedings were not unrepresented, that application was dismissed, and now an application is made to review the judgment on the ground that the sale was not by the Court, and also on the ground that it appears from the conditions of sale that the purchaser bound himself to accept whatever title the vendors might have in the property. The application is made on the ground that there is an apparent error on the face of the record.
2. Now, the first point is one I have dealt with before. In Golam Hossein Cassim Ariff v. Fatima Begum (1910) 16 C. W. N. 394. I tried to point out the difference between a sale by the Court and a sale under the authority of the Court, or out of Court, a distinction which is well recognized in England, but is not so carefully recognized in this country. In one case the Court makes the title to the purchaser; in the other case the Courts only authorize either the parties to the suit or the person having the carriage of the proceedings to sell the property and to make a title to the purchaser. Chandr nath Biswas v. Biswanath Biswas (1870) 6 B. L. R. 492n decided by Mr. Justice Macpherson is to the same effect, and there he decided that the addition of a condition that the conveyance should be settled by the Judge in Chambers, if the parties disagree, did not make the sale one by the Court. There is no doubt this is a matter of considerable importance in this country, as sales by this Court are taken to be of considerable value as establishing the title of the purchaser, and I cannot help regretting that in the present case, where it appears from the order of the 23rd of May 1910 that the Commissioner of Partition was only given liberty to sell by public auction, that conditions of the nature of condition 18 should be inserted in the conditions of sale. Condition 18 states that the sale is to be deemed and treated for all purposes as a sale by the Court, and the other conditions are all liable to lead the purchaser to believe that he is buying property, the title of which is going to be made to him by the Court: for instance you come across such a statement in the conditions as 'the party having the carriage of the proceedings' and other conditions which would lead any person to believe that the sale was one by the Court. It seems to me that on that point the sale is not one by the Court, but is one made by the Commissioner of Partition under the authority of the Court.
3. The other argument which was addressed to me by Mr. B. C. Mitter is one of much graver import, because the one as to whether this is a sale by the Court or a sale out of Court is merely one of procedure as to whether the purchaser can apply on a summary proceeding in this suit to have the question decided, or whether he has to be relegated to a separate suit. The other point Mr. Mitter has raised goes to the root of the whole matter, because he says on conditions of sale like this the purchaser is bound whether the title is good, bad or indifferent, and whether the vendor can make any title or no title to the purchaser; the purchaser has bound himself by these conditions of sale that on the sale by the Commissioner of Partition he will take the title whatever it may be without enquiry or requisition, and the two conditions that he relies upon are first of all condition 6, which states that there are no documents of title except those mentioned in the abstract of title, and the purchaser shall not be entitled to call for any other document. The point that Mr. Mitter makes on that is with reference to a document in the abstract. That document it is true is not a document dealing with the title of the property at all, but is a bond of indemnity. True it is that it contains recitals of importance relating to the pedigree, but not in any way of itself affecting the title to the property. He said the abstract commences with such a document and precludes the purchaser from requiring any evidence of title under condition 6. On the authorities I am not satisfied that that is so. The document of title with which the abstract commences or purports to commence has got to be, prima facie, a document which is a proper root of title, and a deed of indemnity indemnifying the past committee of a lunatic obviously has nothing to do with the title at all, and that document is in no sense a root of the title.
4. Then the other condition that he relied on is condition 9: 'the purchaser shall assume the statement in the abstracted document to be true, and shall accept the title disclosed in the abstract, and no objection to the title shall be allowed.' The first point Mr. Matter has made on that is with reference to this deed of indemnity. The deed of indemnity not affecting the title, the purchaser is not bound to accept the recitals in that document as conclusive on matters relating to the title, unless he has by express condition contracted to do so.
5. The other portion of the conditions Mr. Mitter has relied upon is as to the purchaser accepting the title as disclosed in the abstract, and that no objection to the title, shall be allowed. He says that the purchaser has agreed to buy whatever title the vendors may be able to transfer to him, though that title may be the mere right to receive a pepper-corn as rent from the property in perpetuity, or it may be nothing at all. That I do not agree with at all. It seems to me if you are going to sell property to which you have got no title, or a remote or shadowy title, you ought to tell the purchaser in express and clear words what you intend to sell to him. It is not sufficient to dress the matter up and say that the purchaser shall accept the title as disclosed by the abstract and no objection shall be allowed, because that pre-supposes that an absolute title is to be shown by the abstract; but if it appears aliunde, as Mr. Pugh says, that they have evidence which, so far from showing that the vendors have an absolute right to convey to the purchaser, shows that the property is subject to a permanent lease at a small rent, then I have no doubt myself that the purchaser is not bound to accept such a title. It seems to me to hold otherwise would be a perfect scandal, that by a condition stating that the purchaser was to accept the title disclosed by the abstract the purchaser has bound himself to pay Rs. 8,000 in order that he might get nothing. I regret myself that the conditions of sale have been drawn in this form, and that a review of judgment must be granted on the ground that this is not a sale by the Court.
6. I think this is a case where I ought to make no order for costs.