PAULO DAVID DE SOUZA Vs. KRDAPHTARY

JUDGEMENT

(1.) The question arises whether the plaintiff's have made out a marketable title to the property. The first defendant contends that they have not, and on his behalf the following points have been raised, namely, (1) that the order does not in fact empower the second defendant to sell the moiety vested in him; (2) that even if it does, it was obtained by underhand dealing on the part of the second defendant; (3) that the learned Judge had no jurisdiction to make the order; and (4) that the first defendant contracted with the plaintiffs on the footing that they were absolute owners, and the plaintiffs could not force on him a title different to that which he agreed to take.

(2.) I shall deal with these points in order.

(3.) The first point is that the order does not authorise the second defendant to sell the moiety vested in him. I think it does. The agreement was for the sale of the whole property not merely of the interests of the first and third plaintiffs and the fifth and sixth plaintiffs. What was sanctioned was the sale of the whole property. One moiety was vested in the first and the third plaintiffs and the other in the second defendant. That being so, the order empowered the second defendant to execute or join in the conveyance of the property. It was argued that "to execute" means "to sign". I think that what the second defendant was empowered to do was to sell the moiety vested in him and to convey it by the deed of conveyance. This is put beyond all doubt by the second part of the order by which it is provided that the second defendant should hand over the nett sale proceeds of the half share of Lawrence De Souza to the Accountant General of Bombay. It appears from the plaintiffs-letter of October 23 that this direction did not appear in the order originally submitted to the learned Judge, but that he ordered that direction to be added in the order. If the order did not empower the second defendant to sell the moiety vested in him, the direction for handing over "the nett sale proceeds of the half share of the said Lawrence De Souza" would be meaningless. The order is not artistically drawn, but its meaning is plain.