AKBARALLY A ESKI Vs. EFFY ANDRADE

JUDGEMENT

(1.) THIS is a suit by a purchaser against the vendor of an immoveable property for recovery of the amount deposited as earnest under the agreement of sale and also for the costs of the abortive sale. The property agreed to be sold was house No.739, under scheme No.3 at Khar. The vendor by the agreement declared that the tenure of the land contracted to be sold was freehold. The title was rejected by the purchaser on the ground that the vendor had failed to prove that the tenure was freehold.

(2.) IT was contended on behalf of the defendant that the term that the tenure was freehold had been inserted in the agreement by the common solicitor of both the parties, although the defendant had made plain to him that she did not know what the term meant and had only told the solicitor that she was the owner of this property. Two issues were raised on this plea, being issues Nos. 1 and 2; but after some evidence had been led on these issues, namely the evidence of the defendant herself, while she was under cross-examination, Mr. Madon for the defendant stated that he did not desire to press these issues with the result that the only question which I have to decide is whether the defendant has made out a marketable title to the property according to the terms of the agreement of sale.

(3.) THE term is borrowed from the law of real property in England, which until Lord Birkenhead's Act had been one of the most difficult branches of English law. It is unfortunate that the term should have been introduced into conveyancing in India where the history of land tenures has little in common with its counterpart in England; but since the term finds a place in the agreement of sale which I have to interpret, I have to assign to it a legal meaning as closely resembling the meaning of the term in England as Indian conditions permit.