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. Decembe