AKBARALLY A ESKI Vs. EFFY ANDRADE

JUDGEMENT

(1.) This is a suit by a purchaser against the vendor of an immoveable property for recovery of the amount deposited as earnest under the agreement of sale and also for the costs of the abortive sale. The property agreed to be sold was house No. 739, under scheme No. 3 at Khar. The vendor by the agreement declared that the tenure of the land contracted to be sold was freehold. The title was rejected by the purchaser on the ground that the vendor had failed to prove that the tenure was freehold.

(2.) It was contended on behalf of the defendant that the term that the tenure was freehold had been inserted in the agreement by the common solicitor of both the parties, although the defendant had made plain to him that she did not know what the term meant and had only told the solicitor that she was the owner of this property. Two issues were raised on this plea, being issues Nos. 1 and 2; but after some evidence had been led on these issues, namely the evidence of the defendant herself, while she was under cross-examination, Mr. Madon for the defendant stated that he did not desire to press these issues with the result that the only question which I have to decide is whether the defendant has made out a marketable title to the property according to the terms of the agreement of sale.

(3.) The agreement of sale in para. 3 thereof states specifically this : The vendor hereby declares that the tenure of the land contracted to be sold is freehold. If the land shall turn out to be not of that tenure or the title be not approved by the purchaser's attorneys this agreement shall be null and void at the option of the purchaser and the said sum of Rs. 2,000 received as earnest money shall in such case be fothwith returned by the vendor to the purchaser and the vendor shall also pay all costs charges and expenses incurred by the purchaser upto that time. The schedule to the agreement contains the following description of the property: All that piece or parcel of land of the freehold tenure containing by admeasurement 600 square yards or thereabouts under E ward bearing house No. 739 situate at Khapoli Road under scheme No. 8 at Khar. The question I have to consider is whether a title has been made out to the property in terms of the agreement.