HAJI OOSMAN HAJI ISMAIL Vs. HAROON SALEH MAHOMED

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Crump. The suit oat of which the appeal arises was filed by the plaintiffs to enforce an agreement to sell certain immoveable properties to the defendant for Rs. 1,55,000. The defendant agreed to buy the properties in suit and paid Rs. 5,000 as earnest money to the plaintiffs. The vendors had agreed to make out a marketable title. It is not necessary to refer to other terms of the agreement. Two of these properties had been previously purchased by the plaintiffs from the defendant, and there was no difficulty as to the title to those properties. The third property had been bought by the plaintiffs from one Fakir Mahomed, a Cutchi Memon, who conveyed the property to them on April 29, 1920, on behalf of him-.self and his minor brother. That conveyance is Exhibit E. The property belonged to the father of Fakir Mahomed who had bought it in 1884 from one Hajee Adam Oosman Nuran. That conveyance is Exhibit B.

(2.) It appears from the correspondence that there was some difficulty felt by the purchaser with regard to thin property. By the letter of October 9, 1920, the defendant called upon the vendors to obtain letters of administration to the estate of the deceased Joosab Hajeo Cassum Pirmahomed on the ground that the recitals in the conveyance were not sufficient evidence of the fact that Joosab Hajee Cassum Pirmahomed had died intestate in 1911 and had left only two sons. The vendors did not accept the position taken up by the defendant that letters of administration to the estate of the deceased father of their vendors were necessary. Subsequently in the requisitions for title an inquiry was made as to whether Fakir Mahomed had any male issue. It appeared that Fakir Mahomed had two sons, and in the letter of December 7, 1920, the defendant raised the objection that as the sons of Fakir Mahomed would have a vested interest in the property according to the law applicable to them the title was defective. The vendors did not accept the correctness of this-position. In the letter of December 15 objections to the title were categorically stated on behalf of the purchaser, namely, first, that the objection as to the want of satisfactory proof of the fact that Joosab Hajee Oassum Pirmahomed had died intestate and had left only two sons, Fakir Mahomed and Mahomed Salleb, as-his heirs was not removed, and that in order to meet that difficulty they insisted upon letters of administration being taken out to the estate of the deceased Joosab Hajee Oassum Pirmahomed, and, secondly, that the sons of Fakir Mahomed had a vested interest in the property in question, and that as their interest was not conveyed to the plaintiffs the title was defective. The plaintiffs offered by their letter of December 18 to-give further proof by way of a declaration from two respectable members of the Jamat to the effect that Joosab Pirmahomed had died intestate and had left only two sons as his heirs according to the rules of Hindu law as to succession applicable to Cutchi Memons; and, as regards the second objection, they contended that according to the law applicable to Cutchi Memons the sons had no vested interest in the property of then father. The purchaser replied by his-letter of December 22 that he was not prepared to accept a declaration of two respectable members of the Jamat as proposed.

(3.) In the end, on account of the difference between the parties on these two points, the present suit was filed by the vendors to enforce the agreement between the parties. The defendant in his written statement pleaded that he was right in insisting that letters of administration should be obtained to the estate of Joosab Pirmahomed, that the two sons of Fakir Mahomed had a vested interest in the property and, as the interests had not been conveyed to the plaintiffs, the title was not marketable. The defendant counter-claimed the earnest money paid by him and Rs. 15,000 by, way of damages for failure on the part of the plaintiffs to make out a marketable title. Parties gave no evidence beyond the documents which have been put in, and which are printed in Part III of the Paper Book, subject to this that the proceedings in a certain suit were sought to be put in by the defendant but rejected by the Court as irrelevant. The notes of the trial Judge indicating that fact should have been printed: but they are not to be found in the Paper Book. The issues raised were: (1) whether the plaintiffs deduced a marketable title to the property thirdly described in Schedule B of the plaint; and (2) whether the defendant should be entitled to his counter-claim. The learned trial Judge came to the conclusion that the plaintiffs had deduced a marketable title, and accordingly decreed the plaintiffs claim for specific performance of the agreement. The prayer for damages in the plaint was not pressed and a decree was passed on that basis, the defendant's counter-claim being rejected with costs.