MEGHJI MOORJI Vs. TYEBALLI KAMRUDDIN

JUDGEMENT

(1.) [His lordship, after setting out the facts of the case at considerable length, proceeded as follows:] In the appeal before us on these facts, it has been contended that there was no waiver on the part of the plaintiff to insist upon the stipulation as to the marketable title being deduced by the defendant, that there was no estoppel, and that in fact as the title was not marketable, no decree for specific performance could be, and should be, passed under the circumstances of the case. On the other hand, it is urged that the plaintiff really authorised Messrs. Mulla and Mulla to complete the sale on April 20, 1920, and as a result of that authority which Messrs. Mulla and Mulla had, the assignment, Exh. 1, was prepared, and as part-payment of purchase money was paid by the plaintiff, he could not now call upon the defendant to make out a marketable title. In substance the argument is that he effectively waived his right to the marketable title being made out by the defendant, when he accepted the title through his solicitors on April 20.

(2.) Before dealing with these points, it may be mentioned that it is not suggested before us that the plaintiff knew at the date of his contract with the defendant, or thereafter, of the express terms upon which the defendant had agreed to buy from Lelin-wala. The finding on issue No. 2 by the learned trial Judge is not challenged before us, nor is the finding on issue No. 1 questioned, and it is to be Taken as found by the learned trial Judge that the plaintiff did not know that he was only obtaining a leasehold title for a limited term. Though the learned Judge does not consider it necessary to record any finding on issue No. 6, which is whether the defendant has made out such title as he had agreed to make out, it is clear that for the purposes of this appeal it must be taken that in fact the title which the defendant was able to make out was not marketable. Though the learned counsel for the defendant-respondent has made a somewhat faint attempt to suggest that it may be treated as an open question in this appeal, it seems to me that after the decision of the Court of Appeal between the plaintiff and his sub-purchaser, it cannot be treated as an open question. It may be mentioned that though the parties to this litigation may have known generally that it was a leasehold property, and not a freehold, it has been assumed by the parties throughout in this case that they at least expected, and were entitled to expect, to get a right to the renewal of the lease in perpetuity. The evidence of Mr. Dastur. who acted as a member of the firm of Messrs. Mulla and Mulla in connection with this contract both for the defendant and the plaintiff, says at the end of his evidence:- We didn t quite notice the point regarding the difficulty as to renewal, which was subsequently raised. But I believe I contended with Judah and Solomon that the plaintiff had never agreed to sell perpetual leasehold. When we examined the documents we took the title to be one of perpetual leasehold. I accepted the title on behalf of both, viz., defendant and. plaintiff.

(3.) There is no doubt from the correspondence, and also from the evidence recorded at the trial, that at least the plaintiff and his sub-purchasers to whom the property was sold on the same terms on which the plaintiff had bought from the defendant, were under the clear impression that at least title to a perpetual leasehold was to be made out. That is the basis upon which the questions raised on the originating summonn were considered; and that is the basis upon which the decision in that case proceeds.