MAHARUDRAPPA DANAPPA SONAR Vs. LAKSHMAN HANMANTAPPA JAMKHANDI

JUDGEMENT

(1.) The only question in this case is, whether the lower Courts have misconstrued the sale-deed, Exhibit 37, in favour of the defendants. The question really depends upon whether the land that was sold to the defendants was particularized- described and identified-with reference to- (1) its measurements : as three acres and four gunthas; and by reference to the land being half of Pot 3, in survey No. 94, or, (2) whether it was sold with reference to the actual piece of land : of which possession was given to the vendee at the time of the sale ?

(2.) A similar question was considered in Suleman Vadu V/s. Trikamji Velji (1875) 12 B.H.C.R. 10 and Mr. Justice West, delivering the judgment of the Court, put the question in the following form (p. 1.2):- The question seems to be whether the area of the field, as specified, was an essential para of the consideration for the payment made by the plaintiff, or whether, although the area is set down as matter of description, he bought and took the field as a particular object identified and estimated for the purpose of the contract independently of the circumstances of its area being or not being so much as 30 acres. Prima facie the specification of the area implies, we think, that the area is regarded as material by the parties, and is the quality, or one of the qualities, specially had in view as the basis of their contract. The Roman law gave an action ex empto in such a case : Et quidem tenetur ex empto venditor etiamsi ignoraverit minorem fundi modum esse : Poth. Pan. L. 19 T.I. Section 68. Paulus is cited in the next section to the same effect. Pothier himself lays down the principle of proportional compensation in his Traits de Vente, Section 258 ; and Secs.1617, 1622 of the Code Civil embody a similar rule. It appears to be founded on justice, and to be the one which should be applied in all such cases, except where it is clear that the precise area was not regarded as material.

(3.) West J. contrasted (1) the area set down as a matter of description, with (2) the field as a particular object identified and estimated for the purposes of the contract independently of the circumstances of its area being as much as was specified.