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1916 Supreme(SC) 84
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PARKER OF WADDINGTON, LORD SUMNER, SIR JOHN EDGE, AND SIR LAWRENCE JENKINS.
SHRINIVASDAS BAVRI - Appellant
Versus
MEHERBAI - Respondents
On Appeal From The High Court at Bombay.
Decided On : December 7, 1916.
Solicitor for appellant: G. C. Farr.
Solicitors for respondents: E. F. Turner & Sons.
Recitals in a deed serve as evidence only against the parties to the deed and their successors. Registration of a deed does not extend this evidentiary value to third parties, and such recitals are insufficient to establish a marketable title if reasonable doubts persist.
Headnote:(A) Registration Act, 1877 - Marketable Title - Evidentiary value of recitals in a deed - A vendor is obligated to deduce a marketable title free from all reasonable doubts - Recitals in a deed are, strictly speaking, evidence only as against the parties to the deed and those claiming through or under them - The registration of an instrument under the Registration Act does not alter the evidentiary value of the recitals contained therein against third parties.
(B) Conveyancing - Custom regarding age of deeds - In the absence of a specific custom or contractual agreement, recitals in a recent deed may not be sufficient to satisfy a purchaser of the truth of the facts recited, especially when original title deeds are missing.
(C) Limitation Act, 1908 - A claim for the recovery of a debt secured by an equitable charge may be extended beyond the statutory limitation period by payments on account of principal or interest.
Facts of the case:
A purchaser entered into an agreement to buy property, requiring the vendors to provide a marketable title free from reasonable doubts. The property had been subject to a mortgage. The vendors produced a registered release executed by one of the mortgagees, who claimed to be the sole heir of the deceased co-mortgagee, stating the debt was paid. However, the vendors failed to produce the original mortgage memorandum and certain title deeds. The purchaser requested evidence regarding the heirship of the deceased mortgagee and an indemnity for the missing deeds, which the vendors refused, asserting that the recitals in the registered release were sufficient.
Findings of Court:
The court found that the recitals in the release deed were not conclusive evidence against potential other heirs of the deceased mortgagee. The registration of the deed did not make the recitals evidence against third parties. Consequently, the vendors failed to discharge their obligation to provide a marketable title.
Issues: Whether the production of a registered release deed, reciting the death of a co-mortgagee and the satisfaction of a mortgage, without further evidence of heirship or production of original deeds, constitutes a marketable title free from all reasonable doubts.
Ratio Decidendi: Recitals in a deed are only evidence against the parties to the deed and their successors. Since the vendors could not prove the deceased mortgagee had no other heirs, and since the deeds were missing, there remained a reasonable doubt regarding the title. The registration of the deed does not enhance the evidentiary value of its recitals against third parties.
Result: Appeal allowed; orders reversed; deposit to be returned with interest and costs.
Legal Category Hierarchy
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property law
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conveyancing
- marketable title
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mortgages
- equitable charge
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conveyancing
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evidence law
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documentary evidence
- recitals in deeds
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documentary evidence
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practice and procedure
- vendor and purchaser summons
Judgement
Appeal from a judgment and decree of the High Court (November 11, 1914) affirming a judgment of McLeod J.
By an agreement dated October 18, 1913, the respondents agreed to sell property at Napean Sea Road in Bombay to the appellant for Rs.65,000. The agreement provided that the purchaser should pay Rs.5000 as deposit on the execution of the agreement and that the purchase should be completed within two months. Clause 5 was in the following terms "that the vendors shall deduce a marketable title, free from all reasonable doubts, to the said property, and shall at their own costs clear all defects in and complete the title, and shall soon after the execution of these presents deliver, or cause to be delivered to the purchaser, or his solicitors, all the deeds and documents relating to the said property for investigation of their title thereto." Clause 6 provided for requisitions in writing after the production of the deeds and documents, and that if the vendors should be unable or unwilling to meet or comply with any objection or requisition they should be at liberty to rescind the sale, and that in that case the vendor should return the deposit without interest but with costs.
The respondents were transferees of a mortgage of the property created by one Ramdas Kessowji in 1908. The title appearing from the mortgage showed that on July 31, 1888, one Tricumji sold and conveyed the land to one Shivlal, who on August 7, 1888, sold and conveyed to Ramdas Kessowji. On April 20, 1892, Ramdas Kessowji had mortgaged the property to Damoderdas Sunderdas and Gordhandas Sunderdas jointly on the terms stated in their Lordships judgment. This mortgage was effected by a deposit of the two deeds of 1888, and by a memorandum of charge registered under the Registration Act, 1877 . The vendors did not produce the memorandum of charge, or the deed of July 31, 1888. They produced a certified copy of a deed of release, registered under the above Act, executed on September 30, 1902, by Gordhandas Sunderdas only, his execution being acknowledged by indorsement under the Act. By this deed, after reciting that Damoderdas Sunderdas died on July 4, 1902 leaving the executant as his only heir and legal representative, and that the mortgage had been paid off, Gordhandas Sunderdas released the property from the equitable charge. The vendors also produced a registered copy of the deed of July 30, 1888, and a declaration by Ramdas Kessowji, made in 1911, that that deed and the release had been lost or mislaid by him and that he had not deposited either of them as equitable security.
The appellant purchaser made requisitions requiring (inter alia) a declaration as to the fact that Damoderdas had no other heirs than Gordhandas Sunderdas by some respectable person acquainted with the family, also an indemnity against any possible rights which might have been created by parting with the deed of July 31, 1888, and the original release of December 30, 1902, which deeds Ramdas Kessowji had declared to be lost. The respondents by their answers stated that the release itself showed that the moneys were paid off and that the return of the deeds to Ramdas was sufficient; they declined to procure the declaration required. They also declined to give the required indemnity.
After correspondence between the respective solicitors the appellants solicitors cancelled the contract and demanded the return of the deposit.
On July 14, 1914, the appellant filed a plaint and issued an originating summons under r. 210 of the High Court Rules, asking the Court to determine whether he had rightly cancelled the contract, and whether the respondents had made out a reasonable title free from reasonable doubt. The summons was heard by McLeod J., who held that the respondents had made out a title in compliance with the agreement.
Upon appeal Sir Basil Scott C.J. and Davar J. affirmed the decision. The learned judges were of opinion that the Registrars copy of the release of. Decem
