Kissory Mohan Roy vs Kali Charan Ghose and others

Sale, J.—This is an application by the purchaser for compensation in respect of certain immovable property purchased by him at a. Registrar''s sale on the 13th day of June last. In the particulars the property sold is described as No. 27 (formerly No. 21) Emambaree Lane, containing by estimation 8 cottahs, be the same a little more or less. On the 10th July, the purchaser applied for and obtained an order for confirmation of the sale and for permission to pay the balance of the purchase-money into Court with a direction that the money be not paid out except on notice to the purchaser. Subsequently the purchaser having reason to believe that the property purchased by him was less in area than stated in the particulars, caused it to be measured and discovered that it consisted only of 5 cottahs, 13 chittaks and 38 square feet. He now applies on notice to the plaintiff and to the 2nd mortgagee for compensation in respect of this deficiency. One of the conditions under which the property was purchased and which is binding on the purchaser, although he says he was unaware of it, is to the following effect:--"The particulars and description of the properties to be sold are taken from the mortgage, and also in the case of two properties the quantity of land taken from the Commissioner''s return. It is believed that the particulars and description are correct, but if any error shall appear to have been made, no compensation will be allowed, nor will the purchaser be entitled to be discharged from the purchase nor to claim compensation." It is objected that the purchaser is bound by that condition and that it disentitles him from asking for either compensation or annulment of the sale. It has however been held that a condition in similar terms applied only to small or unimportant errors or mis-statements, and not to a large deficiency, and the case of Whitmore v. WhitmoreL.R. 8 Eq. 603 is an authority expressly in point. There, at a sale by auction under a decree, the property sold was stated in the particulars to contain 753 square yards or thereabouts, and one of the conditions of sale provided that if any error, mis-statement or omission should be. discovered, it should not annul the sale, nor should any compensation be allowed by the vendor or the purchaser in respect thereof. The property was found to contain 573 square yards only, and it was held that the condition only applied to small errors, that it did not cover so large a deficiency and that the purchaser was entitled to compensation. In the present case the deficiency is of a substantial character, and the principle governing the application appears to be that laid down in the case of Whitmore v. Whitmore.L.R. 8 Eq. 603 It is next said that the application is too late, that the sale having been confirmed and the purchase-money paid into Court, the applicant is not entitled to any relief, having regard to the special condition to which I have referred.

It is to be observed, however, that it has been laid down by Jessel M.R. that in a sale of land where conditions provided for compensation in case of errors or misstatements being discovered, such compensation is recoverable even after the sale is completed by execution of a conveyance; Turner v. Skelton. L.R. 13 Ch. D. 130

This decision was no doubt disapproved of by Malins, V.C., in the later case of Allen v. Richardson L.R. 13 Ch. D. 524, but the law has been settled in favour of the view adopted by Sir G. Jessel by the Appeal Court in the case of Palmer v. Johnson L.R. 13 Q.B.D. 351. The present case differs from the case of Turner v. Skelton L.R. 13 Ch. D. 130 in that the condition does not provide for compensation for errors or mis-statements, but expressly excludes the purchaser''s right to such compensation. It is however open to me to apply the principle laid down in Whitmore v. Whitmore (1) inasmuch as the purchase-money, though paid into Court, is still under the control of the Court. As the order of 10th July precludes me from annulling the sale, the order, which I think I ought to make, is that it be referred to the Registrar to assess the compensation which should be allowed in respect of the deficiency shown to exist, and that the amount of compensation so allowed be paid to the applicant out of the purchase-money, together with his costs of this application.

Mr. Dunne

Mr. Mitter does not ask for a reference nor Mr, Haldar. We prefer that the Court should award the sum mentioned in the petition. The Court--Then the order will be that out of the purchase money the sum of Rs. 3,282-2-2 be paid to the applicant together with his cost of this application.