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Nilmoney Auddy Vs. Dinendra Nath Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal428
AppellantNilmoney Auddy
RespondentDinendra Nath Das and ors.
Cases ReferredJones v. Williams
Excerpt:
- .....8th february 1928 for the enforcement of an equitable mortgage by deposit. the mortgagor was one banku behary dhar and the mortgagee was dinendra nath das and the deed deposited was a conveyance dated 22nd december 1893 : and the deed was deposited with a view to create an equitable charge on the one-third share claimed to belong to banku behary dhar, the mortgagor. the sale was held on 15th march 1929 and that sale was held under certain conditions of sale of which the sixth is important for the present purpose. that condition required the party having the carriage of the proceedings to deliver to the purchaser an abstract of the title, subject to the stipulations contained in those conditions. it went on to provide as follows:the purchaser shall, within seven days after the actual.....
Judgment:

Rankin, C.J.

1. In this case, the appellant is one Nilmoney Auddy a person who purchased at a sale held by the Registrar of this Court under a final decree for sale dated 8th February 1928 for the enforcement of an equitable mortgage by deposit. The mortgagor was one Banku Behary Dhar and the mortgagee was Dinendra Nath Das and the deed deposited was a conveyance dated 22nd December 1893 : and the deed was deposited with a view to create an equitable charge on the one-third share claimed to belong to Banku Behary Dhar, the mortgagor. The sale was held on 15th March 1929 and that sale was held under certain conditions of sale of which the sixth is important for the present purpose. That condition required the party having the carriage of the proceedings to deliver to the purchaser an abstract of the title, subject to the stipulations contained in those conditions. It went on to provide as follows:

The purchaser shall, within seven days after the actual delivery of the abstract, deliver at the office of Mr. S.K. Dutt the attorney of the plaintiff at No. 2, Hastings Street in the town of Calcutta a statement in writing of his objections and requisitions (if any) to or on the title as deduced by such abstract, and to and in respect of the description of the property, and upon the expiration of such last mentioned time land in this respect time is to be deemed of the essence of the contract) title shall be considered as approved of and accepted by the purchaser, subject only to such objections and requisitions, if any.

2. Now, the abstract as to which I shall say something in a moment was delivered on 19th March 1929 and that document was shortly as follows : The root of title was the instrument of 22nd December 1893 and that was a registered kabala whereby Sreemati Abhoy Kally Dassey and her husband Digambar Day transferred the property in question to Sreemati Prosad Dasi Dassey wife of Brojo Nath Dhar. The next instrument abstracted is the equitable mortgage which is being enforced in the present proceedings, namely of 2nd September 1924. This is a letter from Banku Behary Dhar to the plaintiff Dinendra Nath Das depositing the deed of 22nd December 1893 which was in the name of Sritnati Prosad Dasi Dassey another of Banku Behary Dhar by way of further security for a loan of Rs. 5,000 on the mortgage of some of the trust properties of Prem Lall Mullick. On the same date, there was a letter from the mortgagor Banku Behary Dhar and one Sreemati Radharani Dassey to the plaintiff stating that an order for sale made in a certain suit had been cancelled and that any claim on the property in respect thereof had come to nothing. The documents that are further contained in the abstract are the preliminary decree in this suit, the Registrar's report and the final decree.

3. Now, with reference to this abstract, two questions arise. One is whether it as a perfect abstract in the sense that it contains with sufficient fulness the effect of every instrument which constituted the title of the vendor and in the sense that it contains further a statement of all the facts necessary to deduce a title in the vendor. That is the first question. Assuming that it is a perfect abstract, the second question arises, namely, whether the objections to the title which we have now to consider are objections which go to the root of the title and which show that the purchaser would be getting a bad title or are objections not discoverable on the face of the abstract. These two questions arise because on 11th April 1929 the purchaser took an objection to the effect that the abstract contained nothing to show why the property of Srimati Prosad Dasi Dassey was supposed to have come to the hands of Banku Behary Dhar. As a matter of fact, the purchaser inspected the documents mentioned in the abstract on 20th March. A claim was sent in on behalf of Banku Behari's sons on 11th April 1929 to the effect that they inherited the property under their paternal grandmother's will, namely the will of Srimati Prosad Dasi Dassey. Thereupon, the purchaser took out a summons before the learned Judge asking for an enquiry into the title and for certain other reliefs. The learned Judge has refused to order an enquiry into the title on the ground that, by virtue of Clause (6) of the condition of sale, the purchaser is precluded from making any of his present objections to the title.

4. The first question is whether this is a perfect abstract. In my opinion, it is plainly imperfect. The facts upon which title depends, such, for example, as the death of a father where the title has to be shown to have devolved upon the son are important parts of an abstract of title. Nobody supposes that an abstract would be even reasonably complete, if it left out facts of that character upon which devolution of title depends. It would be idle to abstract a document showing a transfer by A, if facts are not recited showing that the property had vested in him. In my judgment, this abstract, on the face of it, is imperfect by reason that it alleges none of the facts upon which the vendor relies for the purpose of showing that the property, prima facie the property of Prosad Dasi Dassey, became the property of Banku Behary Dhar. But the abstract is not only defective in that respect. It appears that one of the letters of 2nd September 1924 is insufficiently abstracted and that the insufficiency is extremely important. It appears that the letter of deposit goes on to use words which show or at least suggest that, in 1924, the mortgagor Banku was professing to have been for twenty years in separate possession of his one-third share with a separate realization of rents in respect thereof, a claim which points to his right in this property having derived not from his mother who was alive but in some other way. Now, this portion of the letter which purports to be abstracted was most improperly left out. An abstract which treats a letter in that way departs by a very long distance from being a proper or even a fair abstract and, on that ground alone, I should be of opinion that this abstract does not sufficiently contain the contents even of the documents which it purports to give. It is quite true that the vendor in this case does not purport to make title through any will of Prosad Dasi Dassey and it would be entirely a bad criticism of this abstract to say that it was bad because that will was not abstracted. The abstract is a hopeless one because it fails to set forth the facts necessary to disclose the title which the vendor at the time was asserting and in my judgment, it is not necessary in point of law, to go further.

5. The case law which has been cited to us is, I think, clear. We have been referred to the cases of Hobson v. Bell [1839] 2 Beav. 17, Blacklow v. Laws [1842] 2 Hare 40; Want v. Stallibrass [1873] 8 Ex. 175 and Pryce-Jones v. William [1902] 2 Ch. 517. The effect of the case law, in my judgment, is that the time within which the purchaser would be barred under such a stipulation as this dates from the delivery of a perfect abstract in the sense which I have described, not an abstract necessarily which shows a perfect title (which is an entirely different thing) but an abstract which sufficiently shows all the documents and gives all the facts upon which such title as the vendor is professing is based. Even if in this case it could be said that the absence of the facts as to the devolution of title to Banku Behary Dhar could be ignored, it is to my mind quite impossible that the purchaser should be held in a matter of this sort to be bound by the stipulation as to time when one finds that this abstract in dealing with the letter of 2nd September 1924 deliberately conceals a part of the document which would call the purchaser's attention to the very question whether or not this mortgagor could make a title through his mother or whether such title as he had had come to him in another way e.g., by devolution from his father or by mere adverse possession. It is quite out of the question that the purchaser should be bound by the stipulation as to time when the abstract does not even deserve the epithet of being candid as regards the document with which we are dealing.

6. Assuming that these points could be got over, there would remain the further-question whether, if this abstract could be treated as a perfect abstract, Clause (6) of the condition of sale would debar the purchaser from an enquiry into the title. It seems to ma that, if the purchaser is asking for an enquiry into the title, when that enquiry has taken place, the Court will be in a better position to say whether the position here is that the vendor has got a good title which requires to be strengthened or supplemented in various ways. If it be true that there is no proper devolution, of the title from the mother, then, of course, no title at all his shown and the cases seem to show that such a stipulation as this is not to be used to thrust upon the purchaser a property to which, there is no title at all. The case before Joyce J., Pryce-Jones v. Williams [1902] 2 Ch. 517, has been relied upon for the proposition that, unless the objection is as to the document which is the 'root of the title,' the clause will prevent the purchaser from asserting his objection. II doubt extremely whether that is the correct distinction. The case itself was one in which the equitable title was clear but by reason of the absence of a formal assignment the legal estate was technically on the Crown and the Court, was satisfied that it could be got in.

7. In these circumstances, I am of opinion that this appeal should be allowed with costs and that we should direct an enquiry into the title. Any further relief that the purchaser may desire in the matter, he will obtain on the original side. We set aside the order of costs made by Panckridge, J., and the costs of both parties in the application) before Panckridge, J., will be dealt with under Chap. 27 of the rules of this Court and will depend upon the result of the application.

Buckland, J.

8. I agree.


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