MUSAMMAT MOTI BEGAM Vs. AHBAB ALI

JUDGEMENT

(1.) The facts are these: By a sale-deed of the 23 December 1896 Musammat Moti Begam the plaintiff in the suit sold to Ahbab Ali the defendant in the suit a plot of land. The material portion of the sale-deed is as follows:-- "Out of the land to the South of that house, land measuring 16 builder's yards East and West, by 12 builder's yards North and South, together with, foundations of the Southern wall and the well towards the south with a pair of doors and frame, the boundaries of which are set forth below was sold by me etc., etc.." The plaintiff on the basis of the above sale-deed brought an action against the defendant to have it declared that she sold only a portion of the plot lying to the South and measuring 16 by 12. The case of the defendant was that the entire plot within the boundaries was sold and that the specification of the area was immaterial; he further resisted the claim on the ground of equitable estoppel.

(2.) The Court of first instance found that there was no estoppel and constructing the sale-deed to mean that the specific area was sold gave the plaintiff a decree. The defendant appealed but the plea of estoppel was not taken in the memorandum of appeal. The lower appellate Court reversed the decree of the Court of first instance, finding that the intention of the parties was to sell whatever land was included in the boundaries. In support of this, reliance is placed on Abdul, Ghani V/s. Tajamb-ul-Husain A.W.N. (1883) 38. The plaintiff has preferred a second appeal and it is argued by her learned Advocate that, on a right interpretation of the sale-deed, the portion of the land lying to the South of the house measuring 16 by 12 was sold, and that the boundaries may not be regarded as perfectly certain boundaries of the property sold. In support of his contention the learned Advocate relies on the cases of Kumar Rameshar Malio V/s. Ram Tarak Hazra 14 C.W.N. 268 and Durga Prasad Singh V/s. Rajendra Narain Bagchi 37 C. 293 and on the Laws of England, Volume 3, page 138. The learned Vakil for the respondent in answering the contention of the learned Advocate for the appellant argues, that, as the boundaries given in the sale-deed are certain, the specification of the area must be deemed as a mere misdescription. He relies on Sheeb Chander Mahneeah V/s. Brojo Nath Aditya 14 W.R. 301, Kazee Abdul Mannah V/s. Barola Kant Banerji 15 W.R. 394, Baboo Pahlwansingh V/s. Maharajah Moheshur Buksh Singh 16 W.R. 5, Virjivandas and Madhavdas V/s. Mahomed Ali Khan Ibrahim Khan 5 R. 208.

(3.) As I read the sale-deed in question, I feel no doubt that the intention of the parties was that out of the land lying to the South of the house mentioned in the sale-deed only a portion was to be sold. The words "out of" (minjumla) very distinctly show that it was never the intention to sell the whole area but only a portion of it. The specification 16 by 12 which follows minjumla" is another reason showing that that specific area was to be sold. Then the expression "the four boundaries" may refer to the boundaries of the property sold or to the boundaries of the property of the entire plot.