MISRILAL RAIDANI Vs. NETAICHAND NANDI

JUDGEMENT

(1.) This is an appeal against a decision of Roy, J., in the circumstances stated below: On 21st April 1931 the present appellant Misrilal Raidani entered into an agreement with one Netaichand Nandi for the sale to the latter of Premises No. 6, Temple Street, in the town of Calcutta. The agreement was reduced into writing and is printed on p. 5 of the paper-book. It was stated in the agreement that, subject to the approval of title to the premises by the purchaser's Solicitors, Messrs. G.C. Chunder and Co., these premises were to be purchased by Netaichand Nandi provided it was shown that the fee simple in possession was free from encumbrances, for a sum of Rs. 73,000. On the date of the agreement a sum of Rs. 1,001 was paid by way of earnest and in part payment of the purchase money to the vendor and the vendor agreed to deliver or cause to be delivered all the title-deeds of the said premises to the purchaser's Solicitors within seven days from the date of the agreement and the sale and purchase was to be completed within six weeks from the date of delivery of the title-deeds. The vendor agreed that sufficient time before the date fixed for completion to make out a good title to the premises to be sold to the reasonable requisitions of the purchaser's Solicitors was to be had. The agreement further provided that in case the title was not approved of by the purchaser's Solicitors the vendor should, on demand, refund to the purchaser the earnest money and should also pay his costs of and incidental to the investigation of title; such costs however were not to exceed Rs. 80 in aggregate.

(2.) What happened was this: The property to be sold was apparently in possession of the Governors of the Mayo Hospital. The property in question was sold to the present appellant Misrilal Raidani on 30 September 1918 by means of a regular conveyance from the Governors of the Mayo Hospital. On 28 April 1931 Messrs. G.C. Chunder and Co., sent certain requisitions to the vendor: (1) as to the authority of the Governors of the Mayo Hospital to convey the property as they did in September 1918 to Misrilal Raidani; (2) as to a certain mortgage of the premises in question with the Allahabad Bank ; and (3) as to whether it was necessary that the members of the family of Misrilal Raidani?the family being one governed by the Mitakshara School of Hindu Law ?should join, and about certain other matters. The vendor's Solicitor was Mr. Hem Chunder De and a copy of this letter containing the requisitions was sent to Mr. De on 30 April 1931. Mr. De was not in a position to answer the requisitions and he wrote in to say that he was communicating with Messrs. Sanderson and Co., who were the Solicitors of the Governors of the Mayo Hospital and that as soon as he got the necessary information he would communicate again. Nothing apparently was done in the matter of answering the requisitions between 13 May 1931 and 2 June, 1931. On this last mentioned date Mr. De purported to answer Messrs. G.C. Chunder and Co s., requisitions. On 8 June 1931 Messrs. G.C. Chunder and Co., took up this position that the Governors of the Mayo Hospital were not in a position to sell without express authority and that such authority must be shown by the vendor's Solicitor. The letter of 8 June is an important one and it will be found printed on p. 105 of the paper-book. In course of their letter Messrs. G.C. Chunder and Co., observed as follows: The Governors of the Hospital were in the position of Trustees of a Public Charitable Trust and, in the absence of an express authority to sell, they cannot by their own resolution invoke such authority. Unless such authority is satisfactorily proved we shall not be in a position to accept the title.

(3.) This letter was replied to on the next day and the only point that was made-in that letter was that the Governors-were satisfied that they did not require-any sanction of the Government for the sale by them of property in their possession or as belonging to the Mayo Hospital. On 22 June, Mr. De?the Solicitor on behalf of the vendor?wrote to say that the property in question, namely, Premises No. 6, Temple Street, vested in the Governors of the Mayo Hospital with right of disposal and as such the sanction of the Local Government was unnecessary. It may be mentioned in passing that no one has raised any question of the necessity of sanction of the Local Government up to the present point. Mr. De went on to add: "Had it not been so, it would have been extremely unlikely that responsible personages like the Metropolitan of Calcutta, the Chief Justice and Judges o the High Court and others would have participated in the sale." The only comment that is necessary on this statement is that it was an entirely fortuitous circumstance that the Trustees of the Mayo Hospital happened to be, among others, the Metropolitan of Calcutta (obviously a mistake for the Metropolitan of India) and the Chief Justice of this Court; but, in my opinion, no comfort whatsoever could be derived by the vendor from the circumstance that among the Trustees were men of distinction like those referred to above. Messrs. G.C. Chunder and Co., replied to this letter on 25 June and they pointed out, rightly enough, that the mere fact that personages like the Metropolitan, the Chief Justice and other Judges had participated in the sale was no proof of title of the Governors of the Hospital to sell the property in the absence of authority conferred on them by the original trust or by an order of Court. This letter provoked a reply from Mr. De which is printed on p. 113 of the paper-book. Apparently nothing came out of the correspondence and finally on 2 July, 1931 Messrs. G.C. Chunder and Co. intimated that their client?the purchaser?was not prepared to accept the title and in the circumstances the title was rejected. The title having been rejected there was some further correspondence on the demand of Messrs. G.C. Chunder and Co. that their client, the purchaser, should get back the amount of the earnest money which he had paid?a request which was not complied with; and finally on 5 January 1932 the present suit was filed by the purchaser asking for a refund of the earnest money which has been paid.