JUDGMENT
Ramaswami, J.
1. The substantial question to be determined in this appeal is whether defendant No. 1, Maharaja of Darbhanga had purchased 4 annas kham share of Touzi No. 543 of village Pali-mohan in execution of a mortgage decree.
2. The plaintiffs brought the suit on the allegation that Kuarji Jha owned 8 annas share in Touzi No. 543 of village Palimohan, that he had executed on 18th June 1919, a mortgage bond in favour of Maharaja of Darbhanga for Rs. 3,000 with respect to 1 anna share of the Touzi, that on 2nd March 1922, Kuarji Jha executed a registered deed of gift in favour oi his son Balbhadra Jha, plaintiff No. 1, and Bhikhia Jha, father of defendant No. 2, wherein Kuarji made a gift of 4 annas 10 gandas out of 8 annas share to plaintiff No. 1 and the remaining 3 annas 10 gandas share to Bhikhia Jha. On 20th August 1930 the Maharaja of Darbhanga, instituted a mortgage suit in respect of the mortgage bond, obtained a final decree, and in execution thereof he purchased 1 anna share of Touzi No. 543 which had an area of 20 acres 56 poles and which paid a proportionate revenue of Rs. 13/12/3. On a subsequent date the Maharaja Of Darbhanga wrongly obtained mutation of his name in register D with respect to 4 annas share in Touzi No. 543 out of the share of 4 annas 10 gandas recorded in the name of Balbhadra Jha in the said Touzi. The plaintiffs alleged that as a result of the execution sale the Maharaja of Darbhanga was entitled only to 1 anna share out of the Touzi, that, plaintiffs and defendants 2nd party were equally liable to the extent of 1 anna share mortgaged, that only 10 gandas out of the plaintiffs’ share of 4 annas 10 gandas share should have gone to the Raj. The plaintiffs therefore claimed that they were entitled to the share of 3 annas 10 gandas and that a decree for joint possession should be passed in favour of the plaintiffs along with defendant No. 1, Maharaja of Darbhanga, The Maharaja of Darbhanga contested the suit on the ground that 1 anna pokhta share equivalent to 4 annas kharn share of Touzi No. 543 was mortgaged by Kuarji Jha, that the same milkiat share was purchased in the execution proceeding and that the mutation in the Land Registration case was rightly made. Defendant No. 2 resisted the suit on the ground that he was not liable to the extent of half the mortgage debt and the plaintiffs have no cause of action, Upon these contentions, the learned Sub-Judge held that the Maharaja of Darbhanga had purchased 4 annas kham share of Touzi No. 543 of village Palimohan in execution of the mortgage decree and that he was rightly recorded for 4 annas share out of the 4 annas 10 gandas share previously recorded in the name of the plaintiffs in the Land Registration Department. The Sub-Judge further held that the defendant 2nd party was liable to the proportionate extent of his share for the mortgage decree but the plaintiff was not entitled to recover possession of any share of the milkiat from defendant 2nd party in the present suit.
3. In support of this appeal Mr. Dutt addressed the argument that upon the proper construction of the sale certificate it ought to be held that the Maharaja of Darbhanga had purchased only 1 anna kham share of Touzi No. 543 of village Palimohan containing 20 acres 56 poles of land and of which the proportionate land revenue was Rs. 13/12/3. Learned Counsel referred to the sale certificate in which the property is described as follows:
“1 anna pokhta share, the kham share whereof is 4 annas out of 4 annas 10 gandas kham share out of the entire 16 annas kham patti formed by collectorate partition in village Palimohan, pargana Bachhaur bearing Touzi No. 553, the area of entire 16 annas whereof is 330 acres 5 poles and the area of the share of the judgment-debtor is 20 acres 56 rods, the sadar jama of entire 16 annas is Rs. 220/7/3 and the share of the judgment-debtor is Rs. 13/12.”
It is contended by the learned Counsel that upon a simple calculation of the area and the land revenue given it was manifest tnat only 1 anna kham share of Touzi No. 543 was purchased by Maharaja of Darbhanga. In the sale proclamation the property is likewise described as:
“1 anna pokhta share which is equivalent to 4 annas kham share out of 4 annas 10 gandas out of 1d annas pokhta share in the patti formed by Government partition in mauza Palimohan per-gana Bachhaur, bearing Touzi No. 543, the area of the 16 annas (patti) is 330 acres 5 poles and the area of proportionate share of the judgment-debtor is 20 acre 56 R. The sadar jama of 16 anaas is Rs. 220/6/3 and the proportionate share of the judgment-debtor is Rs. 13/12 which will be sold. Approximate value Rs. 2,000.”
On behalf of the respondents Mr. De referred to the mortgage deed, Exhibit D, and the final decree, and pomted out that in these documents the property is described as 1 anna “pokhta share which is equivalent to 4 annas kham share bearing Touzi No. 543 situated in village Paiimohan. Learned Counsel stressed the argument that there is no mention of the area of the land and the proportionate jama of the milkiat share in these documents. Learned Counsel argued that the statement as regards the proportionate jama and the area of land and approximate value were erroneous and the description of the property as 1 anna pokhta share equivalent to 4 annas kham share of Touzi No. 543 was leading description and ought to prevail. In my opinion the argument of the learned Counsel is well founded. The principle is well established that if the description of a property is sufficient to render certain what is intended, the addition of a wrong name or of an erroneous statement as to quantity, occupancy or erroneous enumeration of particulars will have no effect. For instance in ‘TRAVERS v. Blundell’, (1876) 6 Ch D 436, a testator gave all that part of Righby’s estate purchased by him consisting of closes A, B, C, D, E and P., with the timber and coal mines, to trustees in trust for his son, J. O., for life, with remainder to the use of J. O’s children as he should by deed or will appoint, and in default of appointment to the use of J. O’s right heirs. J. O. by his will, after reciting the devise in his father’s will (but without enumerating the closes), appointed all that part of the property devised by his father’s will and therein described as that part of Righby’s estate purchased by his said father consisting of A, C, B and P with the timber, but not including the mines to his two sons T and J; and he appointed the mines under the land which he had appointed to T and J to his four other children. The two omitted closes, D and E lay between the other four. A special case having been filed to obtain the opinion of the Court whether the two closes D and E passed under the appointment to T and J., it was held (affirming the decision of the Master of the Rolls), that the corpus of the estate devised ay the father was Sufficiently designated in the son’s will, that the enumeration of the four closes instead of the six was a false demonstration which might be rejected; and that the whole of the six closes passed under the appointment.
4. The same principle is enunciated in ‘LLEWELLYN V. Earl of Jersey’, (1843) 152 E B 767, in which a deed conveyed a piece of land, forming part of a close, by reference to a schedule annexed. The schedule described the land, in a column headed: “No. on the plan of the Briton Ferry Estate”, as “153 b;” in a second column, headed “Description of premises”, as “a small piece marked on the plan”; in a third column as being
in the occupation of J. E.; and in a fourth, as “34 purchase.” At the time of the contract, a line was drawn upon the plan as the boundary line dividing the piece 153 b from the rest of the close of which it formed a part. The plan was drawn to a scale, but, upon measurement of the land; was found incorrect; and 153 b contained, within the line so drawn, less than 34 perches according to the actual measurement of the plan and 2V perches only according to the actual measurement of the land. Upon these facts it was held by the Court of Exchequer that the statement that the piece of land conveyed contained 34 perches, were merely false demonstration, the prior portion of the description being sufficient to convey it, and that the deed passed only the portion of land actually marked off on the plan, as measured by the scale. At p. 189, Parke, B., states:
“Then the other rule of law applies, that as soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it; according to the maxim ‘false demonstration on nocet.’ Is there then that convenient certainty in this case? As to the plan no question is made, and the black line is admitted to have been put upon it with the intention of pointing out what was contracted for the plan also appears, on the face of it, to be drawn to a scale, and it is incorporated, on the principle already mentioned, with the deed. Three of the boundaries were already fixed, and nothing remained to be fixed but the boundary to the west, which may be fixed immediately by drawing a line upon the land, corresponding according to the scale, with that drawn upon the plan. Thus the portion conveyed is perfectly described, and can be precisely ascertained, and no difficulty arises except from the subsequent statement, that it contains 34 perches. That, however, becomes merely a false description of that which is conveyed with convenient certainty before; and resembles the case in ‘SHEPPARD’S TOUCHSTONE, of the meadow in D., described as containing ten, when in fact it contained twenty acres. It is a mere false demonstration and does not affect that which is already sufficiently conveyed.”
5. In view of the principle established by the authorities it is manifest that in the present case the property purchased by the Maharaja of Darbhanga is adequately described in the sale certificate, Exhibit J. as:
“1 anna pokhta share, the kham share whereof is 4 annas of the entire 16 annas khas patti of village Paiimohan bearing Touzi No. 543.”
and that the subsequent addition of the area, the share of the sadar Jama and the valuation is erroneous and will not affect that which has been conveyed with certainty before.
6. In the course of the debate reference was made by the learned Counsel to recitals in the ekrarnama, Exhibit 12, dated 18th June 1919, executed by Balbhadra Jha and Bhikhia Jha, land revenue chalans, Exhibits 1 series, and the register of rent suits, Exhibits M series. In my opinion these documents are of little relevance in determining the question at issue in the present appeal.
7. It was not seriously contested by Mr. S. N. Dutt that the Maharaja of Darbhanga was entitled to realise the mortgage debt by the sale of the milkiat share belonging to the plaintiffs alone. But it was argued by the learned Counsel that plaintiffs ought to be granted a decree for recovering possession of the proportionate share of defendant No. 3 which is liable to satisfy the mortgage debt. The
argument is wholly untenable, for it is obvious that the remedy of the appellants is to file a suit for contribution against defendant No. 3 and they cannot get a decree for recovery of possession of the proportionate share of defendant No. 3 in the present suit. The argument of the learned Counsel on this point must fail.
8. For the reasons already assigned I hold that the decree granted by the lower Court is correct and that this appeal must be dismissed with costs.
Sarjoo Prosad, J.
9. I agree. The question us to what was purchased at the sale in execution must depend essentially upon the recital in the sale certificate (Ex. J) which is a document of title. If the recital had been clear and unambiguous, it was not open to the parties to refer to the recital in any other document or to any other evidence in the case to construe the recitals. But it is common ground that the entire description of the property as given in the sale certificate does not fit in with the description of any particular property of the judgment-debtors. It has, therefore, to be found which part of the recital is the true and correct description of the property sold and which is an incorrect or false description. (1) The recital in the sale certificate has been quoted in the judgment of my learned brother. If the recital of :
“one anna pokhta share, the kham share whereof is 4 annas out of 4 annas 10 gandas kham share out of the entire 16 annas kham patti formed by collectorate partition in village Palimohan, pargana Bachhaur bearing Touzi No. 543.”
stands then the other description of the property, viz :
“the area of entire 16 annas whereof is 330 acre 5 poles and the area of the share of the judgment-debtor is 20 acres 56 rods, the sadar jama of entire 16 annas is Rs. 220/7/3 and the share of the judgment-debtor is Rs. 13/12/-” must go. The area in the share of the judgment-debtor is not consistent with the share sought to be sold as described in the document; if it were the recital as to the share it should have been: “one pie pokhta share the kham share whereof is one anna out of the entire 16 annas kham patti, etc.”
So either of these two descriptions have to be discarded. It has to be held either that the description of the property by the ‘share’ is the paramount description or the description of the property by the ‘area’ is the true and paramount description. In view of this ambiguity in the sale certificate, it is permissible to look to other evidence to find out what was really intended to be sold because this ambiguity can be resolved only by reference to other materials in the case.
10. The sale was in execution of a mortgage decree. The mortgage deed (Ex. D) describes the hypothecated property as :
“one anna pokhta share which is equal to 4 anna kham share bearing Tauzi No. 543 situate in village Palimohan, etc.”
There is no reference to any area in the mortgage bond. The preliminary and final mortgage decrees (Exs. B and B-1) on the basis of the said bond delineate the mortgage property in the same terms as the mortgage bond. In none of these documents there is any mention of the area comprised in the said shares. It was this final mortgage decree in execution whereof the property was sold and there can be no doubt that on a perusal of these documents what was sought to be sold was the share of the judgment-debtors and not any block or area of land. It is true that in the application for execution (Ex. 2), the further descriptions which
occur in the sale certificate were also added. It might be also conceded that it is open to a decree-holder to proceed against a smaller share of the mortgaged property; but the significant fact is that me share in the execution petition has been correctly mentioned according to the recital in the mortgage bond and the decrees based thereon. Tne subsequent description which is given in the execution petition was not given with a view to curtail that share and to put limitations upon it but to make it more specific and detailed. Therefore, if these descriptions are found to be inconsistent with the description as to the ‘share’ they have to be discarded as false demonstration and the paramount description as to the ‘share’ must prevail. The description by the jama was altogether out of place if the intention was to sell only an area of land, and in any case nobody alleges that any proportionate jama had been fixed in the collectorate for this particular share. On a review of these materials I feel no hesitation in agreeing with my learned brother that the property purchased was adequately described in Ex. J., the sale certificate as:
“one anna pokhta share, the kham share whereof 14 annas, of the entire 16 annas kham patti of village Palimohan, bearing Touzi No. 543.”
and that the subsequent addition of the area, the proportionate sadar Jama and the valuation was erroneous.
11. The appeal, therefore, must fail and should
be dismissed with costs.
