NILMONEY AUDDY Vs. DINENDRA NATH DAS

JUDGEMENT

(1.) In this case, the appellant is one Nilmoney Auddy a person who purchased at a sale held by the Registrar of this Court under a final decree for sale dated 8 February 1928 for the enforcement of an equitable mortgage by deposit. The mortgagor was one Banku Behary Dhar and the mortgagee was Dinendra Nath Das and the deed deposited was a conveyance dated 22 December, 1893 : and the deed was deposited with a view to create an equitable charge on the one-third share claimed to belong to Banku Behary Dhar, the mortgagor. The sale was held on 15 March 1929 and that sale was held under certain conditions of sale of which the sixth is important for the present purpose. That condition required the party having the carriage of the proceedings to deliver to the purchaser an abstract of the title, subject to the stipulations contained in those conditions. It went on to provide as follows: The purchaser shall, within seven days after the actual delivery of the abstract, deliver at the office of Mr. S.K. Dutt the attorney of the plaintiff at No. 2, Hastings Street in the town of Calcutta a statement in writing of his objections and requisitions (if any) to or on the title as deduced by such abstract, and to and in respect of the description of the property, and upon the expiration of such last mentioned time land in this respect time is to be deemed of the essence of the contract) title shall be considered as approved of and accepted by the purchaser, subject only to such objections and requisitions, if any.

(2.) Now, the abstract as to which I shall say something in a moment was delivered on 19 March 1929 and that document was shortly as follows : The root of title was the instrument of 22 December, 1893 and that was a registered kabala whereby Sreemati Abhoy Kally Dassey and her husband Digambar Day transferred the property in question to Sreemati Prosad Dasi Dassey wife of Brojo Nath Dhar. The next instrument abstracted is the equitable mortgage which is being enforced in the present proceedings, namely of 2 September, 1924. This is a letter from Banku Behary Dhar to the plaintiff Dinendra Nath Das depositing the deed of 22nd December 1893 which was in the name of Sritnati Prosad Dasi Dassey another of Banku Behary Dhar by way of further security for a loan of Rs. 5,000 on the mortgage of some of the trust properties of Prem Lall Mullick. On the same date, there was a letter from the mortgagor Banku Behary Dhar and one Sreemati Radharani Dassey to the plaintiff stating that an order for sale made in a certain suit had been cancelled and that any claim on the property in respect thereof had come to nothing. The documents that are further contained in the abstract are the preliminary decree in this suit, the Registrar's report and the final decree.

(3.) Now, with reference to this abstract, two questions arise. One is whether it as a perfect abstract in the sense that it contains with sufficient fulness the effect of every instrument which constituted the title of the vendor and in the sense that it contains further a statement of all the facts necessary to deduce a title in the vendor. That is the first question. Assuming that it is a perfect abstract, the second question arises, namely, whether the objections to the title which we have now to consider are objections which go to the root of the title and which show that the purchaser would be getting a bad title or are objections not discoverable on the face of the abstract. These two questions arise because on 11 April 1929 the purchaser took an objection to the effect that the abstract contained nothing to show why the property of Srimati Prosad Dasi Dassey was supposed to have come to the hands of Banku Behary Dhar. As a matter of fact, the purchaser inspected the documents mentioned in the abstract on 20th March. A claim was sent in on behalf of Banku Behari's sons on 11 April 1929 to the effect that they inherited the property under their paternal grandmother's will, namely the will of Srimati Prosad Dasi Dassey. Thereupon, the purchaser took out a summons before the learned Judge asking for an enquiry into the title and for certain other reliefs. The learned Judge has refused to order an enquiry into the title on the ground that, by virtue of Clause (6) of the condition of sale, the purchaser is precluded from making any of his present objections to the title.