Judgement

Appeal (No. 104 of 1925) from an order of the High Court in its appellate jurisdiction (February 13, 1925) reversing an order of that Court in its original jurisdiction.

7 Law Rep. 55 Ind. App. 81 ( 1927- 1928) Puran C hand Nahatta V. Monmotho Nath Mukherjee

268

A consent decree of the High Court ordered specific performance of a contract by which the respondents had sold to the appellant certain premises in Calcutta, subject to a good title being made upon inquiry. The Official Referee reported that the respondents had failed to make a good title, upon grounds which appear from the judgment of the Judicial Committee.

Upon objections to the report Ghose J. affirmed the report so far only as it related to alleged defects under the Registration Act.

Upon an appeal Sanderson C. J. and Rankin J. held that a good title had been made.

1927. Nov. 11, 14. De Gruyther K.C. and Kyffin for the appellant.

Sir George Lowndes K.C. and Dube for the respondents.

With regard to the mortgage of 1886 reference was made to Chutterput Singh v. Maharaj Bahadoor

(L. R. 32 L A. 1.), and in reference to the alleged defect in registration to Mahomed Ewaz v. Birj Lal (( 1877) L. R. 4 I. A. 166.); Kesho Deo v. Hari Das (( 1899) I. L. R. 21 A. 281.); and Kanhaya Lal

v. Sardar. (( 1907) I. L. R. 29 A. 284.)

Dec. 5, The judgment of their Lordships was delivered by

VISCOUNT SUMNER. This appeal arises in a vendors suit for specific performance of a contract, dated February 20, 1920, for the sale of a house, No. 13 Marsden Street, Calcutta. The appellant defended the suit on the ground that he could not be required to accept the title offered to him, because (a) the house was included in an outstanding and enforceable mortgage, dated March 27, 1886, which constituted a blot on the title; and (b) because, partly by reason of the vendors failure to produce a certain power of attorney, which ought to have been produced, and partly because the person, who appeared before the registrar to acknowledge the execution of the conveyance with which the vendors title began, did not satisfy the requirements of the Registration Act, the title offered was incomplete. Ghose J. upheld his objection, but his judgment was reversed by the High Court of Calcutta on appeal.

The facts are these. On April 29, 1853, Hari Mohan Sircar executed a family deed of trust of sundry properties, which included the house in question. In 1879 his grandson, Brojo Nath Sircar, was a trustee. On May 19, 1879, a suit was brought against the trustees for the construction of this deed, for the ascertainment of the respective rights of the parties interested thereunder, and for directions as to the administration of the trust.

By a decree dated August 31, 1885, it was declared (inter alia) that Radha Nath Sircar, another grandson and one of the beneficiaries, was entitled to a one-sixth share of the surplus income of properties which included No. 13 Marsden Street, and after other declarations and directions it was B ordered that the trustees should retain their costs of suit out of the trust properties. Thereupon, and while further proceedings in the suit were still pending, Radha Nath Sircar mortgaged his one-sixth share on March 27, 1886. This is the outstanding mortgage in question.

On March 10, 1887, a further order was made in the suit for sale of No. 13 Marsden Street and other properties, in order to raise the money for payment of the trustees costs payable under the decree of August 31, 1885. The sale was duly held and the house was bought by the father of the present respondents, the vendors to the appellant. Pursuant to the order of the Court the trustees, Upendra

7 Law Rep. 55 Ind. App. 81 ( 1927- 1928) Puran C hand Nahatta V. Monmotho Nath Mukherjee 269

Nath Bose and Brojo Nath Sircar, executed a conveyance accordingly on September 2, 1890, which was registered on May 2, 1891. For some reason the conveyance was signed on behalf of Brojo Nath Sircar by Joy Krishna Bose, purporting