1. This is an application on the part of the purchaser of premises No 1, Jugmohan Mullick Street, for an order that the sale held by the Registrar on 26th July 1935 be set aside and the money paid by the applicant refunded. There is an alternative prayer that a reference be directed to the Registrar to enquire and report on the title of the premises. On behalf of the respondent to this motion Mr. Mazumdar has stated that he is agreeable to an enquiry as to title, but the applicant preferred to proceed with his application to set aside the sale. The sale was held pursuant to a final mortgage decree, and the petitioner was declared the highest bidder and purchaser for a sum of Rs. 34,500. The petitioner paid the sum of Rs. 8,625 to the Registrar being twenty-five per cent of the purchase money. The petitioner contends that the vendor was unable to give him a good title, and he seeks to have the sale set aside. It appears that the property was purchased in 1887 by one Hanuman Das, a Hindu governed by the Mitakshara School of law. By his will, dated 20th October 1901, Hanuman Das directed that his charities at Nawalgarh and Barua should for ever be continued and the expenses thereof met out of the income of his estate and should form a charge on his estate. The expenses at Barua were stated to be Rs. 750 yearly. The expenses at Nawalgarh were Rs. 400 yearly.
2. On 18th February 1916 the executors of Hanuman's will conveyed the estate including the property No. 1, Jugmohan Mullick, Street to Gajadhar, the defendant in this suit, subject to the charge of Rs. 750 yearly for the carrying out of the religious trust to which I have referred. On 7th September 1917 Gajadhar purported to release the property from the charge, and created a charge for the payment of that sum of Rs. 750 on certain other properties at Siliguri. On 13th March 1931 Gajadhar mortgaged No. 1, Jugmohan Mullick Street, in favour of the plaintiff who instituted this suit on his mortgage on 9th February 1933. There was the usual final decree and the sale by the Registrar took place on 25th July 1935. In support of the application Mr. Bose for the petitioner complains that neither the will nor the probate, which, he says, are two of the most material documents, was abstracted. It is true that this was not done, but in the affidavit on behalf of the plaintiff Seary Lal explains that neither the will nor the probate was in the plaintiff's possession, and that they were unable to procure them from the defendants. A copy of the will has now been produced and it is on the record of this application. The material part to which I have referred has been set out in the petition. The second line of argument on behalf of the petitioner is that the action of Gajadhar purporting to release the property from the charge in favour of the charity was illegal and improper.
3. It is further contended that even if the shifting of that charge from the properties on which a charge was placed by the testator was in order, the further charge of Rs. 400 on Nawalgarh remained, and this was an incumbrance which should have been mentioned in the notification of sale. Reference is made to Ch. 27, Rule 9 of the Rules and Orders of this Court, Original Side, which states:
Where the property or any portion of it is to be sold subject to an incumbrance the nature and the amount of such incumbrance shall, as far as practicable, be also stated.
4. No incumbrance has been mentioned, and it is argued therefore that the property must have been sold free from incumbrances, and inasmuch as an incumbrance is now disclosed no good title can be given by the vendor. Reference has also been made to Section 55, T. P. Act, which in effect states that the seller is bound to disclose any defect in title and that it is his duty to discharge incumbrances unless the property is sold subject to incumbrances. Reliance has been placed on the case (1910) 2 Ch 438 In Re: Evans and Bettell's Contract (1910) 2 Ch 438. In that case it was held that not even the Court had jurisdiction to set apart a fund to answer annuities and legacies and distribute the rest of the property released from the charge, and notwithstanding the setting apart of the fund it was held that a purchaser of part of the distributed property may validly object to the title in the absence of any release from the annuities and legacies, and an order under Section 5, Conveyancing and Law of Property Act. On behalf of the vendor reference has been made to the abstract and to the sale, more particularly, the abstract of the indenture of release made by Gajadhar Agarwalla on 17th September 1917, where the whole history of the property and of the dealings with it have been set out. In that document there is a recital of the will of Hanuman Das which states that in giving certain legacies he directed that the charities at Nawalgarh and Barua should for ever be continued and the expenses thereof should be met out of the income of his estate and should form a charge on his estate and that the expenses at Nawalgarh should be Rs. 400 per annum and at Barua Rs. 750 per annum. There is a recital that the will was duly proved and that after obtaining probate the executors administered the estate.
5. Clearly those recitals give the substance of the will so far as it is material to this application and mention the probate. There is therefore no substance in the contention that the will and probate have not been abstracted. Under Ch. 27, Rule 15 of the Original Side Rules, it is provided, that on the notification and conditions being settled a fair copy thereof and of the abstract should be filed in the Accounts Department of the Registrar's Office, and it is stated that in accordance with the rule a copy of this document was filed in the Registrar's Office. Under Rule 20 of the same chapter the notifications and conditions of sale are to bo read out and the name of each bidder is to be entered in the Registrar's note-book and each bid offered by him entered opposite his name. In the affidavit of Pearilal it is stated that the purchaser and his attorney inspected the abstract of title. In the affidavit in reply it is stated that the abstract of title was not inspected. At any rate, it was there for inspection and any failure to inspect it was the fault of the purchaser. The conditions of sale are in the form set out in the Rules and Orders as far as condition 14. Condition 15 is added and is as follows:
The plaintiff has not in his possession any title deeds or documents other than those disclosed in the abstract of title and the purchaser shall not be entitled to make any objection or requisition in respect of such title deeds or documents and shall accept the recitals in the documents mentioned in the abstract of title as correct.
6. It is stated that this condition was specifically added owing to the inability of the vendor to obtain the will and the probate which he states were not in his possession. The purchase was subject to the conditions of sale including condition 15 to which I have just referred, which states that the purchaser shall accept the recitals; and the purchaser has signed the bidding paper on the understanding that the purchase is subject to the conditions of sale. In my opinion the recital which I have already referred to in the document of 17th September 1917 gives the purport of the will and probate and the other recitals which set out the history of the property state the facts from which the purchaser is able to form his own conclusion as to whether a good title can be obtained or not.
7. There is a recital of a conveyance by the executor to Gajadhar and that Gajadhar was advised that the executors could not in any way modify the effect of the terms in the will nor select any specific property for the operation of the charges created by the will. There are further recitals that Gajadhar had since 18th February 1916 been maintaining the trust of Barua out of the income of the general estate and not out of the rents and profits of No. 1 Jagmohan Mullick Lane which were said to have been charged with the payment of the Rs. 750 per month. There is a further recital of the release by Gajadhar of the premises from the charge and the transfer of that charge on to the properties at Siliguri which were paying an annual rent of Rs. 7-0-3. In fact, as I have already stated, the whole history of the property is set out and it is for the purchaser to decide whether on the facts which are contained in that abstract he can or cannot obtain a good title. I have been referred to the case in In Re: Sandbach & Edmondson's Contract (1891) 1 Ch 99, the head-note of which is as follows:
A condition of sale requiring the purchaser to assume certain facts is not misleading, if the vendor believes the facts to be true, even though the condition is intended to cover a flaw which goes to the root of the title In such a case it is not necessary to explain in the condition the specific defect in the title which the condition is intended to cover.
8. In his judgment Lord Halsbury says:
If there were an actual misstatement or such an imperfect statement of the facts as in the result makes what is stated untrue, the condition would be so tainted by falsehood that it could not be insisted on as against the purchaser misled by such taint or falsehood. But now that the facts are all known the condition appears to have been aptly and properly framed to prevent the purchaser insisting on proof of what was then and is now believed to be the fact but which the vendor is not in a position to establish by legal proof.
9. In my opinion the facts here are very similar. The vendor has set out in the abstract of title the facts so far as he is able to state them, but owing to his inability to get possession of the will and probate he has inserted Clause 15 of the conditions of sale to prevent the purchaser insisting on proof of what was believed to be a fact but which the vendor is not in a position to establish by legal proof. I can find no misstatement or such imperfect statement of facts as in the result makes what is stated untrue. The same principle is laid down in Blaiberg v. Keeves (1906) 2 Ch 175. The property there was described as freehold, and in one of the conditions of sale it was stated that the property was formerly held on a lease for 500 years at an yearly rent of one shilling but the property had been assigned many years previously free from the said rent, and the purchaser should assume that the rent had been released and was no longer charged on the property. By a deed poll in 1902 the property was expressed to be enlarged into a fee simple and the condition stated that it should be assumed that the deed poll operated as an effectual enlargement. It was there held that the vendor might reasonably believe the property was free-hold and was therefore justified in so describing it in the particulars, and then, by the conditions, requiring the purchaser to assume the facts establishing the free-hold title, which the vendor knew he would have a difficulty in proving. There again it is doubtful whether legally the property was in fact freehold as it was described; but it was being sold as such and the vendor in the conditions of sale put the purchaser on notice by stating the facts Warrington, J. at p. 183 says as follows:
All that the vendor has done is to describe the property as being held upon a particular tenure, which he believed, and reasonably believed, on sufficient grounds, might be the true tenure on which it was held. Then, knowing that he might have a difficulty in proving the fact of freehold tenure, in the proper part of the document, i.e., the conditions, which shew how he is going to establish his title, he throws upon the purchaser the burden of assuming the facts the proof of which might have been difficult.
10. The principles involved in these cases seem to me to be a complete answer to the contention of the petitioner that the property with which we are now concerned was sold free from incumbrance. The facts were all set out and it was the duty of the purchaser to assume the burden of finding out from those facts whether or not he could obtain a good title. In my opinion no good reasons have been advanced as to why the sale should be set aside and the application is dismissed with costs.