Howes A-G CJ:

The facts and arguments appear sufficiently from the judgment.

In this summons, taken out under s. 4 of the Conveyancing and Law of Property Ordinance (Cap. 118), the plaintiff, the purchaser of the land, asks for a declaration that (i) he is not precluded by cl 4 of the special conditions of sale from raising his objection that a mortgage dated 28 February 1934 is defective; (ii) that a good title to the land had not been shown; (iii) that the defendant (the vendor) be ordered to repay the sum of $300 paid as deposit; and, (iv) that the defendant be ordered to pay the plaintiff's costs of investigating the title and of this application.

Clause 4 of the above conditions read:

The title shall commence with an Indenture of Conveyance dated 8 February 1935 (Registered in vol 867 No. 110) and made between Seena Oona Soona Pana Pillappa Pillai of the one part and Lim Siew Hock of the other part.

The Purchaser of the property shall not require the production of or investigate or make any requisition or objection in respect of any deeds or documents not in the vendor's possession.

The law applicable to summonses of this nature was considered at length in the case of Re National Provincial Bank of England and Marsh, [1896] 1 Ch 190.

The cases on the question whether and how far the inquiry into title has been limited by the conditions of sale, fall into two categories:-

(a) Where the conditions preclude the purchaser from making requisitions upon or inquiries from the vendor as to his title, - which relieves the vendor from complying with or answering any such requisition or inquiry, but does not prevent the purchaser from showing, by any means in his own power, that the vendor's title was defective; and

(b) Cases in which the conditions preclude the purchaser not only from making such requisitions upon and inquiries from the vendor, but from making any inquiry or investigation about the title anywhere; which may quite validly be stipulated, and will generally, provided that the stipulation be clear, altogether preclude inquiry and investigation for every purpose.

In some cases, there may be a condition that the title shall commence with a deed of a certain date and that no earlier or other title shall be required or inquired into by the purchaser: in others, that a lessor's title should either be produced or inquired into.

In the present case, the title is to commence with a conveyance dated 8 February 1935 made between SOSP Pillappa Pillai and Lim Siew Hock; and the purchaser "shall not require the production of or investigation or make any requisition or objection in respect of any deeds not in the vendor's possession."

These conditions, therefore, only precluded the purchaser from investigating or objecting to deeds not in the possession of the vendor; and did not prevent the purchaser from showing that the title was defective.

Mr. Parsons, solicitor for the purchaser, on 12 April 1937 applied for the loan of the title deeds; and as the result, Mr. Fung sent not only the conveyance of 2 February 1935 but the other title deeds going back to 4 July 1919, which led to the discovery of a mortgage dated 28 February 1934 given by one Savena Chidambaram Chettiar, as administrator of the estate of VRS Saminathan Chettiar, to SOSP Pillappa Pillai (the vendor in the above conveyance of 8 February 1935) as security for his personal account with SOSP Pillappa Pillai. The latter, in exercise of his power of sale as mortgagee, conveyed the land to Lim Siew Hock, through whom the subsequent title is derived.

Mr. Parsons contends that this mortgage of the land by the administrator as security for his personal account, discloses a breach of trust; and consequently, the mortgage and subsequent dealings with the property are defective.

On the strength of this alleged defect, Mr. Parsons, on behalf of the purchaser, demanded the return of the deposit ($300) and $27 costs for investigating the title. On Mr. Fung's