SHRINIVASDAS BAVRI Vs. MAHERBAI

JUDGEMENT

(1.) This appeal arises in a vendor and purchaser summons on the original side of the Bombay High Court under Rule 210 of the High Court Rules. The vendors were bound by their contract of the 18th October, 1913, to deduce " a marketable title free from all reasonable doubts" to the property they contracted to sell. The question is whether they have discharged this obligation. Both the Judge of first instance and the High Court on appeal have answered this question in the affirmative. The purchaser is now appealing to His Majesty in Council.

(2.) The material facts may be stated as follows : On the 26th April, 1892, Ramdass Kessowji the then owner of the property contracted to be sold, joined with Dwarkadass Shamji, the owner of an adjoining property, in mortgaging both properties to Damoderdass Sunderdass and Gordhandass Sundar-dass to secure a lac of rupees, with interest at 7 1/2 per cent. per annum. The mortgage was effected by an agreement of charge duly registered. It appears from this agreement that the sum to secure which the mortgage was given was a debt due from the mortgagors to the mortgagees. The title-deeds relating to both properties are stated to have been deposited with the mortgagees. The principal debt is made payable by two instalments of 50,000 rupees each on the 30th September, 1892 and the 20th April, 1893, but the mortgagors were entitled to pay each instalment before its due date with interest up to the date of actual payment. Both mortgagors join in charging the properties. The agreement contains a proviso that on payment of either instalment with interest the mortgagors, or either of them, shall be entitled to redeem the title-deeds of one of the properties and that a memorandum of such payment and redemption shall be endorsed on the agreement.

(3.) In order to make a title to the property the vendors must show that this mortgage has been cleared off. Their case is that about the 9th August, 1892, Ramdasss Kessowji paid to the mortgagees the first instalment of 50,000 rupees with interest and redeemed the title- deeds of the property contracted to be sold. As evidence of this they produce a certified copy of a release, dated the 30th September, 1902 (less than eleven years before the date of the contract) and duly registered, whereby, after reciting such payment and redemption and also the death of Damoderdass Sunderdass on the 4th July, 1902, leaving Gordhandass Sunderdass his only heir and legal representative. Gordhandass Sunderdass released the property contracted to be sold from the equitable charge created by the agreement of the 26th April, 1892. Obviously if it be the fact that when this release was executed Damoderdass Sunderdass was dead and Gordhandass Sunderdass was his sole heir and legal representative, the equitable charge was effectually released. The purchaser therefore asked for evidence of these facts, but the vendors refused to supply such evidence on the ground that the recitals in the release itself were sufficient proof of the facts recited.