1. This is a vendor-and-purchaser summons taken out by the plaintiff (purchaser) to determine the following questions:

(1) Whether the defendant has made out a marketable title? (2) Whether the plaintiff is bound to accept the defendant's title? (3) Whether the defendant is entitled to spacific performance of the contract in suit? (4) Whether the plaintiff is entitled to return of the earnest money with interest and costs on the footing that the defendant had failed to make out a marketable title? (5) About the costs of the suit.

2. The contract between the parties is contained in two letters dated 1st and 3rd September 1936. The property admeasures about 14,703 square yards and consists of tables at Moreland Road. The material terms are, that the price is to be Rs. 2,30,000 and the title is to be marketable. The plaintiff paid Rs. 25,000 as earnest money on 4th September 1936. When the title-deeds were submitted to the plaintiff's attorneys for investigation, on the face of the deeds they considered the defendant's title incomplete and asked the defendant to satisfy them about the same. The defendant's attorneys contended that the title was marketable as the property was held in undisturbed possession for over 12 years. Further correspondence took place and the plaintiff's attorneys not being satisfied with the title filed this suit. Before the suit was filed the contract was not rescinded. The defendant therefore contended that even if the previous information given by him was not complete, he was entitled to make out a marketable title at the hearing. On that footing the parties proceeded to a hearing and the defendant led evidence about facts. He now submits that he has discharged his obligation to make out a marketable title.

3. As a result of the title-deeds produced by the defendant and the evidence led in Court it appears that the property was purchased by one Bajenna Jalooji in 1876. Rajenna died in 1882 leaving behind him his widow Lingubai and a son Ramchandra. On Ramchandra's application the Collector transferred the property to his name in 1886. Ramchandra died in 1887 intestate. At that time Lingubai was alive. Ramchandra had a son by name Babu and a daughter Tarabai. Tarabai was a minor in 1887. On Lingubai's application the property was transferred by the Collector to Lingubai's name in October 1887. Lingubai, as the guardian of Tarabai and for Tarabai's benefit during her minority, applied for and in May 1888 obtained letters of administration to the estate of Ramchandra. Tarabai was married to Laxman, a man from the village of Wani in Berar in 1888. Laxman and Tarabai lived with Lingubai and Laxman was treated as a son-in-law living in the family. Laxman's family was poor. Laxman and Tarabai had a son named Ramchandra. He was born in about 1893 and died in about 1896. Laxman died shortly there, after. Tarabai died two or three years later. Lingubai died in 1903. On behalf of the defendant it is contended that during Lingubai's lifetime the property was transferred to her name and after her death her executors dealt with the property as if it belonged to Lingubai. There have been conveyances and mortgages since that date and no claim has been so far received from any party. He therefore contended that his title by adverse possession was complete, and therefore marketable. On behalf of the defendant it was further urged that the Court should consider if there was a reasonable probability of a litigation and the title should not be rejected if there was a mere distant possibility of some litigation. Having regard to the decision in (1912) 2 Ch 1,1 it must be held that if a proper title by adverse possession was made out, it would fulfil the defendant's obligation to make out a marketable title. The dissenting judgment of Fletcher-Moulton L.J contains some weighty considerations on the other side, but the majority decision is the decision of the Court. It is however material to bear in mind what is conveyed by the term “marketable title”, because the question of title by adverse possession is to be determined in accordance with the judicial interpretation given to that term. ‘Marketable title’ is one which could be forced on an unwilling purchaser under a contract for sale made without any special conditions, at all times and under all circumstances. The leading case on that point is (1852) 10 Hare 1.2 The principles laid down by Turner V.C are contained in the following observations (pp. 8-9):

… the rule rests upon this, that every purchaser is entitled to require a marketable title; by which I understand it to be meant, a title which, so far as its antecedents are concerned, may at all times, and under all circumstances, be forced upon an unwilling purchaser. I think therefore that in these cases it is the duty of the Court not to have regard to its own opinion only but to take into account what the opinion of the other competent persons may be; … If the doubts arise upon a question connected with the general law, the Court is to judge whether the general law upon the point is or is not settled, enforcing specific performance in the one case,… and refusing to enforce it in the other,… with reference to the doubt upon the legitimacy, to weigh whether the doubt is so reasonable and fair that the property would be left in the purchaser's hands not marketable. If the doubts which arise may he affected by extrinsic circumstances, which neither the purchaser nor the Court has the means of satisfactorily investigating, specific performance is to be refused….

4. In dealing with the question of specific performance it was observed as follows (page 10):

… in determining whether specific performance is to be enforced or not, it must not be lost sight of that the exercise by the Court of its jurisdiction in cases of specific performance is discretionary; and that… the Court has no means of binding the question as against adverse claimants, or of indemnifying the purchaser, if its own opinion should ultimately turn out not to be well founded.

5. Although the actual decision on facts was later on dissented from in (1881) 18 Ch D 3813, the principles mentioned above were fully approved by Lord Justices Earl Selborne and Baggallay and Lush. The decision has also been accepted and followed in our Court in 33 Bom LR 1377.4 In dealing with the question of title by adverse possession in Hailsham's Laws of England, Edn. 2, Vol. 20, Article 1011, it is stated as follows:

Although possession of land is prima facie evidence of selsin in fee, it does not follow that a person who has gained a title to land from the fact of certain persons interested in it being barred of their rights has got the fee simple vested in himself; for although he may have gained an indefeasible title as against those who had an estate in possession, there may be persons entitled in reversion or remainder whose rights are quite unaffected by the statute.

6. Having regard to these principles, it is necessary to determine in this case the following two questions: (1) Whether Babu was alive, when Ramchandra (senior) died; if so, who were his heirs. (2). If Babu was not then alive, who were Tara bai's heirs. The burden of proving, beyond reasonable doubt, that the rights of all persons entitled as heirs or in reversion were time barred, in either contingency, is clearly on the defendant. With regard to the first question the evidence led on behalf of the defendant is itself conflicting. Nagnath Rajaram, who was closely related to Lingubai and Ramohandra, was called to give oral evidence. Till Lingubai died in 1903 he used to live with her and Tarabai as a member of their family. In his evidence he clearly stated as follows: “Babu was alive when Ramchandra (senior) died. Babu died a few months after Ramohandra (senior) died. He was about a year old.” The defendant also produced the petition of Lingubai for letters of administration to the estate of Ramchandra (senior) in which it was stated that Ramchandra died leaving his mother Lingubai and a daughter Tarabai about ten years old. Barring these two statements there is no other evidence on the point. Nagnath did not mention the name of Babu as a brother of Tarabai in his affidavit, Ex. B. The point is very-material because if Babu survived Ram chandra, he would be the heir and the Court will have to be satisfied that the claims of the heirs of Babu are now time-barred. On Babu's death, Lingubai, as the grandmother of Babu, will be the heir according to the Bombay school of Hindu law, in preference to Tarabai. Lingubai would take only a Hindu widow's estate and on her death the next reversioner will have to be traced. If that reversioner happened to be a person taking only a widow's estate, it is not probable that such a person may still be alive and the actual’ claim of the reversioner who may be entitled to succeed as a full owner has not even come into existence, much less become time-barred. The pedigree of the family of Ramchandra and Babu has not-been proved and the evidence of Raghunath Manaji, a member of that family leaves the matter in an extremely unsatisfactory condition. Baghunath produced Ex. C as a pedigree lying in his house. He did not know in whose handwriting it was written and could not depose to the correctness or completeness thereof. That pedigree disclosed that there were-numerous females mentioned therein and Januji had three sons, viz. Khandu, Ramji and Ramaji and not merely Khandu and Ramji as mentioned in Ex. 3. The heirs, of Babu therefore will have to be traced from this whole family and not merely from the persons mentioned in Ex. 3. The defendant has led no evidence to show who would be the next heir of Babu on. Lingubai's death. Indeed it appears that, no steps have been taken to ascertain it. If therefore Babu was the heir of Ramchandra (senior), the defendant has failed to show that the claim of Babu's heir is time-barred. In this connexion it is material to note that under Article 141, Lim. Act, the period of limitation against the reversioner only begins to run after the, death of the person holding the intervening widow's estate. The defendant thus-failed to lead satisfactory evidence on the point whether Babu survived Ramchandra (senior) or not; and if he did, who were Babu's heirs after Lingubai's death. On that ground alone the defendant's contention must fail. No Court can ask a purchaser to pay two lacs of rupees for a property in respect of which the title is so clouded and doubtful on the footing that a marketable title had been made out. The defendant urged that the statement of Nagnath was mistaken and Lingubai's statement in her petition made soon after Ramcbandra's death should be accepted as correct. In my opinion it is not open to the defendant to urge this contention, because it was not even suggested to Nagnath that his statement might be a mistake. Even if this suggestion, having regard to the statements in Lingubai's petition, is accepted, I do not think the defendant's case is materially improved. If Babu died before Ramchandra (senior), Tarabai, as the daughter, would be the heir. Lingubai's action in having the property transferred to her name, when she was the guardian and had obtained letters of administration for the benefit of Tarabai, cannot establish that she held the property adversely to Tarabai. The adverse claim could start only from the death of Tarabai, which occurred in 1898. The question then would be, who were the heirs of Tarabai? Before the suit was filed, no steps whatever appear to have been taken by the defendant to investigate this line. The evidence on record now shows that Laxman was her husband. Ramchandra (minor) having died before Tarabai, the heirs of Tarabai, on the footing that the marriage was in the approved form, will have to be traced on Laxman's family. Nagnath stated that Laxman's mother Sitabai was alive when ‘Tarabai died and she was Laxman's nearest relation. In cross-examination he stated that the only reason for his stating that Sitabai was his nearest relation was because she had come to Bombay at the time of Laxman's wedding with Tarabai. He had not stated any reasons for believing that Sitabai was alive when Laxman died. He stated that he always knew her name as Sitabai although in a letter written by the defendant's attorneys, on the information supplied by this witness, it was expressly stated that Laxman's mother's name was not known. Her name was also not mentioned by this witness in his affidavit (Ex. B). He admits that he did not know if Laxman's father was alive at the time of Laxman's marriage or later, or any other member of his family was there. He stated at first that he did not know if Laxman had married any woman other than Tarabai. Later on he stated that Laxman did not marry any other woman and left no child. It is clear from this evidence that he had no source of knowledge in respect of his statements about Laxman's heirs at the time of Tarabai's death. In substance his evidence was that he was not aware of any other relation. He does not suggest that he had made any inquiries and his evidence is far from establishing as a fact that no such relations existed. If Laxman had married another woman, who was at his native place, that widow would be Tarabai's heir according to the Bombay School of Hindu law. If Sitabai was not alive when Laxman died, the nearest heir of Laxman will have to be traced to determine whether the claim of that party was barred or not. The defendant's case here is left supremely vague and there is no evidence at all on record on this point. On that aspect of the case also, it is not shown that the title is marketable.

7. The defendant further urged that if Sitabai was alive at the time of Tarabai's death, having regard to the Full Bench decision in 24 Bom 192,5 Sitabai would get an absolute estate as the heir of Tarabai and the title was marketable. Apart from the question whether this decision, which is in respect of succession to a maiden's property, was applicable to the case of a married woman, it has to be remembered that this is a decision on the Bombay School of Inheritance and Succession. The other schools of Hindu law have not given a Hindu woman succeeding to a woman's estate that absolute right, even if they were governed by Mitakshara law generally. In the present case Laxman came from Berar and would be governed by the law prevailing there. On Tarabai's marriage with Laxman, it remains to be considered whether in deciding Tarabai's heirs the governing law is the Bombay School or the law in Berar— the place to which Laxman belonged. Although the heirs of Tarabai are to be traced in Laxman's family, in law they are Tarabai's heirs. This point is not covered by any judicial decision and may give rise to a conflict of opinion. The learned counsel for the defendant has failed to point out any authority which would govern this situation. According to the dicta in (1852) 10 Hare 1, mentioned above, the point must therefore be treated as unsettled. In that aspect of the case also, the defendant's contention must fail. In considering whether spacific performance should be ordered, the following observations in (1886) 16 QBD 7786 are useful to be remembered (page 787):

Under such circumstances, where the rectitude of the title depends upon facts which … are certainly capable of being disputed, a Court of Equity will not, as I understand, enforce the contract.

8. This is all the more so when questions of fact depend entirely on matters within the knowledge of third parties and the only proof is their oral statements which bind no one except themselves. In my opinion therefore the defendant's contention fails. The defendant to pay the costs of the suit on a long cause scale.

B.D/R.K

9. Order accordingly.