JHAMAKLAL Vs. MISHRILAL

JUDGEMENT

(1.) MISHRILAL Respondent -Defendant had certain lands situated on the Station Road in the town of Mandsaur. He agreed with the Plaintiff to sell a plot of land 80 ft. x 60 ft. to the Plaintiff at the rate of 5 annas per square foot. Pursuant to this contract, a sum of Rs. 500/ - was paid as advance towards the purchase price on 11 -2 -46. The Plaintiff's case, now, is that when he called upon the Defendant to complete the transaction and to execute the sale -deed, he met Shri Kacharsingh, Defendant's lawyer and from him he came to know that the land was agricultural one and could not be used for building purposes.

(2.) THE following two issues framed are material for deciding this appeal:

(3.) THERE are several decisions on the point as to what a material defect is. The test of materiality was laid down by Tindall C.J. in Flight v. Booth, (1834) 1 Bing (N.C.) 370 (A) and it has been followed by High Courts in India (see for example Lallubhai v. Mohanlal : AIR 1935 Bom 16 (B)). It has been held in the English case that a defect to be material must be of such a nature that it might be reasonably supposed that if the buyer had been aware Of it, he ought not have entered into the contract at all, for he would be getting something different from what he contracted to buy.