SHRIMANT KHANDERAO SHIVAJIRAO GAEKWAR Vs. D D ROMER

JUDGEMENT

(1.) THIS is an originating summons taken out by the purchaser of a block of buildings known as Sethna House and Sethna Cottage on the Carmichael Road for the price of Rs. 8,00,000. The contract was an open contract. It is common ground that the late Mr. R. D. Sethna purchased a large plot of land which included the property in question. From time to time parcels of that larger area were sold to Sir Homi Mehta, Amritlal Amarchand and Khimji Assur Virjee. The rest is sold to the plaintiff in this suit. The plaintiff has purchased two lots. In respect of one the vendors still hold a portion and there is no dispute between the parties in respect of the covenant to produce title-deeds which cover that lot, In respect of the other lot where the vendors do not own any portion of the land covered by the original deed the parties have come to Court to determine whether the defendants are entitled to retain the title-deeds as claimed by them in the correspondence. The purchaser has completed the sale under protest and has taken out this summons to determine his right to recover those title-deeds from the defendants.

(2.) ON behalf of the plaintiff it is argued that the last lot having been sold under Section 55(5) of the Transfer of Property Act he is entitled to possession of the title-deeds. It is contended that so long as any portion of the land covered by the original sale-deed remained vested in the vendors they could hold the title-deeds, but when the last lot was sold they had no right to retain the title-deeds. ON behalf of the defendants it is argued that they had given a covenant to different purchasers to produce title-deeds, and because the plaintiff is the purchaser of the last lot he is not entitled to possession of the title-deeds. The vendors having given to different purchasers of different lots a personal: covenant to produce title-deeds the purchaser of the last lot could not insist on the delivery of the title-deeds to him.

(3.) UNDER the agreement for sale the parties had agreed that the costs of solicitors of each party should be borne by themselves but the out-of-pocket charges were to be borne by them equally. UNDER the circumstances I direct that the costs of preparing the deed of covenant should be borne in accordance with the agreement for sale between the parties both as regards the out-of-pocket expenses and the solicitors' own charges. As regards the costs of the suit it is clear that it became necessary because the defendants had taken up a contention that they were not bound to give over the title-deeds at all. As in my opinion that contention was incorrect, the defendants as representing the estate of Mr. R. D. Sethna should pay the costs of the suit out of the estate of the deceased come to their hands.