AHMEDBHAI HABIBBHOY Vs. SIR DINSHAW MANECKJI PETIT BART

JUDGEMENT

(1.) The appellant, Mr. Ahmedbhai Habibbhai, a well-known wealthy Khoja merchant of Bombay, in January 1907 entered into a contract to sell a very valuable property situate at Mount Pleasant Road, Malabar Hill, to the late Mrs. Awabai Fraraji Petit. The offer and acceptance resulting in the contract of sale of this property, is evidenced by two letters, respectively dated the 31st of January and the 1st of February 1907. By his letter Mr. Ahmedbhai agrees to make out a good title to the property free from all incurabrances and claims whatsoever, and the sale was to be completed within two months from the date of the offer. A formal preliminary agreement containing the terms of this contract was within the contemplation of the parties, and a draft of the contemplated agreement was prepared by Bai Awabai s solicitors, but, for reasons not necessary to discuss, the same was not executed. There is no difference between the parties as to the terms of the contract arrived at between them. The material term, for the purposes of this litigation to consider, is more fully set out in Clause 3 of the draft agreement, which provides: "That the vendor will clear at his own expense, all incumbrances and claims on the said property and will otherwise make out a good title thereto free from all reasonable doubts, claims and demands."

(2.) The appellant is a Khoja and is admittedly governed by Hindu Law in matters of succession and inheritance. At the date of the contract, there were existing and are now existing two sons, two grand-sons and one great-grand-son of the appellant, and it is not disputed that if the property, the subject-matter of the sale, was ancestral in the hands of Ahmedbhai, his male issue would have an interest therein.

(3.) After the contract for the sale of this property was made, there ensued certain correspondence between the solicitors of Bai Awabai and Mr. Ahmedbhai. For the purposes of this appeal, it is not necessary to refer to the correspondence previous to the 29th of July 1907, on which date Bai Awabai s solicitors wrote to the solicitors of the vendor, specifically stating that his sons and remoter male issue had on birth acquired an interest in the property ; that some of them were making a claim to the property and were objecting to the alienation thereof; that one of them Mr. Hoosenbhai had actually made a claim to one of Bai Awabai s solicitors himself and under the circumstances they called upon Mr. Ahmedbhai to obtain the concurrence and consent of all persons, who would be entitled to an interest in the property on the footing that it was ancestral in his hands. They stated that they did not consider that a good title free from all claims could be made out till their requisition was complied with.