JUDGMENT
Gentle, J.
1. Prior to the year 1931 the defendant was the owner of a piece of land in Madras which was known as the Koyyatope garden. It was about 4 3/4 cawnies in extent that is to say, about 114 grounds. Plaintiff 2, who throughout in matters referable to this suit has acted on behalf of himself and on behalf of plaintiff 1, knew of this land, and I am Satisfied was well conversant with every detail of it. In the year 1931 some 14 3/4 grounds or thereabouts were sold by the defendant of which 6 grounds were purchased by plaintiff 2 alone by a sale deed of 29th October 1931. In the early part of 1932 the defendant was anxious to raise money upon the balance of the Koyyatope garden either by selling it or by raising money upon mortgage in respect of it and plaintiff 2 was offering to the defendant his assistance to try to further the defendant’s objects in regard to this land. He was asked in cross-examination whether he was helping the defendant to sell the land, he stoutly denied it but admitted that a letter dated 15th April 1932, Ex. 2, was his letter and from that it is quite clear that he was doing what I have already indicated in my view he was, and this letter shows that he was well conversant with all matters concerning this property. It would also appear from this letter that it was in contemplation that it would be divided into sites as land was more easily saleable in that way than by larger areas. Sometime at about the period of this letter, Ex. 2, a notice, Ex. A, came into existence which was printed and the defendant’s name appears at the foot of it, and para. 1 draws the attention of the public to the balance of the Koyyatope garden which was to be sold and it says that there was remaining to be dealt with 99 grounds. It was suggested that plaintiff 2 either assisted in the drafting or himself drafted this document for the defendant’s use. He on the other hand says that he relied upon its contents when he was contemplating himself buying this land later in the year. Whether he did draft it himself I do not know, but I am perfectly satisfied that he placed no reliance in any way upon its contents when he himself was considering purchasing the land. It would seem that his efforts on behalf of the defendant to find either a purchaser or a mortgagee were unsuccessful. But on 25th July 1932, the defendant in fact mortgaged this property for a sum of Rs. 9,000, no doubt being in immediate need of money at that time, and it does not appear that plaintiff 2 brought about this mortgage or that he had the remuneration he hoped to earn which is indicated in his letter, Ex. 2. However, in November 1932 the defendant and plaintiff 2 on behalf of himself and his co-plaintiff were negotiating for the sale of the remaining land all the Koyyatope garden; and as a result of these negotiations the sale deed, Ex. P dated 11th November 1932, was executed by the parties. There was an antecedent document, Ex. B of 10th November 1932 which dealt with this piece of property and oral evidence has been tendered in regard to the price of the land sold and how that price was computed. In the sale deed the price expressed to be paid for this land is Rs. 17,500 and any oral evidence tending to contradict that, in my opinion, is entirely inadmissible. In like manner also is the document Ex. B, Fry L.S. referred to Leggott v. Barrett (1880)15 Ch. D. 306 in Palmer v. Johnson (1884) 13 Q.B.D. 351 at page 359 and says:
When a preliminary contr(sic) is afterwards reduced into a deed and there is any difference between them, the mere written contract is entirely governed by the deed.
2. Therefore, so far as the price is concerned, one is confined to the wording of the deed, Ex. F. As I have said, I am quite satisfied that plaintiff 2 was fully conversant with all information concerning the property, the subject of the sale deed. He had bought a few grounds from the whole of the garden, he had visited it on numerous occasions and when he was negotiating and eventually agreed to buy the property, he knew perfectly well exactly what he was buying. The claim by the plaintiffs here is that the defendant agreed to sell to them 99 grounds of land, that she has in fact conveyed only 85 grounds 85 square feet and they have obtained 14 grounds less than they bargained to buy and that they should be compensated for this loss by way of damages for the breach of the covenant contained in the sale deed. There is also a claim in the plaint for some Rs. 350 by way of further damages, but there has been no evidence tendered upon that and indeed no reference has been made to that part of the claim. Plaintiff 2’s story is this, that prior to this sale he was informed by the defendant that of the land to be sold, 9 grounds had already been allocated towards the making of a roadway through the property and therefore the actual land which he was buying for effective use, that is to say, in this case to divide into plots to re-sell, was 90 grounds and he based his price at so much aground upon those 90 grounds. He says the price was Rs. 200, namely, Rs. 18,000 in all, That is not the price mentioned in Ex. B nor is it the price mentioned in the sale deed, Ex. F.
3. It was never suggested that before this sale this land was laid out or mapped out in plots and the plaintiffs have called a Mr. Doraiswami Pillai, P.W. 2, who is a surveyor employed by the Madras and Southern Maharatta Railway Company, who was called in to survey the land by plaintiff 2 after the purchase and he said in the course of his evidence that he mads a plan, Ex. G, in which the plots are marked out and numbered in order to help the plaintiff to sell the land by plots, in other words, he surveyed it, marked out on the plan the division of the land in plots and also indicated a roadway through this property. He said he found in the area, the subject of Ex, F, a total amount of 85 grounds 85 square feet and that area is exclusive of the piece of land lying between plots 1 and 2 on the northern side which is land dedicated to a temple and which piece of temple land amounts to 3 grounds. Until this land was surveyed, no one could tell how much area would be required for the roadway and the area occupied by the roadway upon the property sold according to Mr. Duraiswami Pillai is something short of 8 grounds. On the easterly border of this land there are three plots which were not included in this sale deed and marked on the plan as sold. Between the larger of these plots and the two smaller ones the continuation of the roadway I have mentioned runs and the three plota together occupy an area of about 15 grounds and the roadway an area of about 1 1/2 grounds. It is rather indicative when one adds this 1 1/2 grounds to the 7 grounds and some odd number of square feet one arrives roughly at the figure of 9 grounds which, plaintiff 2 said, he was told by the defendant had been reserved for the road.
4. In my view this question of the 9 grounds reserved for the road was entirely an afterthought. It did not and could not arise until the land had been surveyed for division into plots and this matter occurred to plaintiff 2 only some time after the execution of the sale deed and indeed after he had entered into occupation, in order to explain the reduction from 99 to 90 grounds, the amount of land which would be effectively used by him by re-selling and allocating the price at Rs. 200 a ground. In my view the sale was not of any land of particular dimensions but plaintiff 2 being very familiar with the land to be sold belonging to the defendant, after the earlier dispositions, desired only to buy that land and the question of its area was, if anything at all, but a secondary consideration and the price which was agreed and which appears in the sale deed was a price for that piece of land as a whole.
5. The defence to the claim is put in this way, that the defendant sold and the plaintiffs bought the property as a whole, that in regard to area, if that question arose, before the figure 99, the word ‘about’ is to be found which qualifies the area mentioned and indicates that there is no specific warranty that a special or expressed amount of land is to be conveyed and it is further said that this property in the sale deed is described as lying within four boundaries, the four boundaries being particularly and expressly mentioned and since the description is indicated in that way, namely that the boundary of each of the four sides of the land is clearly expressed, no complaint can be made if the area found to exist is less than the area expressed as conveyed in the deed. Plaintiff 2 in the course of his evidence agreed that the land which was conveyed to him by the sale deed is to be found on the site bounded by the boundaries mentioned in the sale deed, that these boundaries accurately and properly indicate the limits on each of the four sides of the land. What the plaintiffs say is that they agreed to buy 99 grounds of land, they have obtained only 85, there are 14 grounds less than what there should be, and they are entitled to damages. I wish to say that except for P.W. 2, Mr. Duraiswami Pillai, the surveyor and P.W. 3 Mr. Loganatha Mudali, who were witnesses whose evidence I accept, in so far as any testimony given by any witness called on behalf of the plaintiffs or the defendant including the parties themselves is concerned, I am not relying upon any of their evidence save where it is borne out by a document or is in accord with the testimony given by other witnesses.
6. The sale deed Ex. F describes the property sold. It gives the boundaries of the whole of the Koyyatope garden on the north, south, east and west with the paimash numbers and the cawnies contained in each paimash and goes on to say that out of this land there has been sold 14 3/4 grounds and the balance of this land pertains to the sale deed and it says this balance is about 99 grounds. The plaintiffs, by plaintiff 2 and the defendant were buying and selling respectively the balance left of the whole land which originally was owned by the defendant less the land which had been sold previously. The extent of the land sold was known to plaintiff 2 and similarly he was aware of what land was to be and was eventually the subject of the sale by the defendant. And, as I have said, he has admitted that this piece of land was accurately described in the sale deed by the boundaries therein mentioned. Quite apart from whatever the area of the piece of land might be, he knew exactly what he was buying. The statement “about 99 grounds” was not in my view a part of the description of what he was buying but was only a statement auxiliary to the description of the land which was sold. This land was fully and accurately described and any inaccuracy in any later description in my view has no effect upon the sale. In Llewellyn v. Earl of Jersey (1843) 11 M. and W. 183 Baron Parke, at p. 189, in the course of his judgment, says:
Then the other rule of law applies, that as soon as there is an adequate and sufficient definition with definite certainty of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate according to the maxim falsa demonst ratio non nocet.
7. And, Baron Alderson at p. 190 agreeing with Baron Parke, adds:
It is quite clear that, applying the true principles of law to the construction of this deed, we must be governed by the description contained in it, and cannot travel out of it, to consider what the parties may have intended.
8. Joliffe v. Baker (1883) 11 Q.B.D. 255 was a case in which the land, the subject of a contract of sale, was described as containing by estimation 3 acres or thereabouts and by admeasurement after completion of the purchase there was found to be only 2 acres 1 rood 12 perches, that is to say a deficiency of nearly one-third of the area described in the conveyance. Watkin Williams J. at p. 267 says this:
I am of opinion, in the first place, that it has been the established practice of the Court of Chancery that a bill for compensation properly so called, the purchaser retaining the property, could not be entertained after the completion of the contract and execution of the conveyance, and that the jurisdiction under which compensation was granted was exercised only as auxiliary to specific performance and was never exercised independently.
9. And later at page 268 he says this:
This rule seems to me also to rest upon Bound principles of law and equity, because if it were otherwise, a purchaser might after conveyance, and while still insisting upon retaining the estate, ask for as abatement of the agreed purchase money, which would be wholly contrary to every principle. If he came before conveyance, he might, If misled, even by an innocent error, fairly say to the vendor, ‘I have been misled, and do not wish to have the estate, and if you insist upon my performing the contract and taking it, a fair abatement from the price ought to be made’, in which case the vendor would be placed in a fair position, because if he was unwilling to part with his estate at the reduced price he right retain it; on the other hand if the purchaser was entitled to insist upon retaining the estate, and at the same time claim an abatement of the price, the result would be that a vendor on account of a perfectly innocent and unintentional error might be compelled to part with his estate for a price that he never had and never would have agreed to, which appears to me contrary not only to the express terms of the contract but to every principle of law and justice.
10. At page 274 the learned Judge adds:
It appears that the defendant had himself bought the land by the description that it contained by estimation three acres or thereabouts, that he never measured it, and that he in fact believed it to be three acres; that the plaintiff himself saw the land and was content to take it at the estimated quantity, and believed it to amount to three acres, and there is nothing, except the bare fact of the error, to show that this estimate was an irrational, still less an impossible one.
11. From this case it seems that the law in England is that when land is sold, properly described, and when the area given is expressed to be by way of estimate- such words as ‘estimate’ or ‘about’ or ‘there-abouts’, to my mind in this respect have similar meanings the purchaser cannot keep the land and at the same time claim compensation for any deficiency in amount expressed to be by estimate. Turning to the cases in India, Tata Industrial Bank Ltd. v. Rustomji Byramjee Jeejeebhoy (1920) 7 A.I.R. Bom 164 is a case in which property in Bombay was the subject of a sale and was dearly and specifically described by boundaries in the sale deed. This document also expressed the area to be by admeasurement 1480 square yards. In fact there was only 1280 square yards, roughly one-seventh deficient. The head-note says this:
Held that the property having been otherwise sufficiently described and having been fully known to the plaintiff, the mention of 1480 square yards was no more than a false description which had prejudiced no one.
12. Scott C.J. at p. 959, after saying that the property sold was described in every possible and conceivable manner, adds this:
There can be no possible doubt as to the property agreed to be transferred. It may measure 1482 square yards or it may measure 1282 square yards. But whatever it measures I am of opinion that the plaintiffs had determined to buy it and were prepared to pay the price of Rs. 7,41,000. In my opinion therefore the defendants are not unable to perform the whole of their contract. The mention of 1482 square yards, though the property which has been actually measured proved to be of a smaller area, is no more than a false description which prejudices no one since the subject matter of the conveyance was known without any possible shadow of doubt.
13. I am satisfied there was in this case no shadow of a doubt in plaintiff 2’s mind of the property which he was buying when he entered into the sale deed with the defendant. Soott C.J. at p. 960 says this:
If I could have held that there had been failure on the part of the defendants to perform the whole of their part of the contract, I should still be unable to award to the plaintiffs the relief claimed by them, for the Court may only award compensation in money for the deficiency where the part left unperformed bears only a small proportion to the whole in value. According to the plaintiff’s case, the part unperformed may amount to anything between Rs. 50,000 and a lakh. It is one-seventh in area of the whole of this very valuable town site, and it would be a misuse of language to say that the part alleged to be unperformed bears only a small proportion to the whole in value.
14. Hayward J. agreeing with the learned Chief Justice says at the same page:
The area was not basis of the price settled between the parties. The sale was for a lump sum. The area did not restrict the settlement to a portion only of the property.
15. This is not a suit for specific performance and for compensation. It is a suit in which the plaintiffs having affirmed and indicated their intention to abide by the sale deed are asking for compensation by way of damages, at the same time retaining and affirming the contract. The alleged deficiency, namely the difference between 85 and 99 or 14 grounds, cannot be said to be a small proportion of the whole. Section 14, Specific Belief Act, provides that:
Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contrast as can be performed and award compensation in money for that deficiency.
16. In my view 14 out of 99 grounds is much larger a proportion than is contemplated by Section 14. When the deficiency is a considerable portion, than Section 15 is the relevant one under the Specific Belief Act. This provides:
Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion o£ the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant.
17. Though, as I pointed out, this is not a suit for specific performance, the principles must be the same and when a party wishes to affirm, as these plaintiff’s do, a contract and the deficiency is not inconsiderable, they are not entitled to compensation for any deficiency that there may be. But the matter does not rest there. If one looks again at the English case I have already indicated, Joliffe v. Baker (1883) 11 Q.B.D. 255. There was a considerable proportion of deficiency. In Winch v. Winchester (1812) 1 V. and B. 375 the deficiency was 6 acres, namely 35 instead of 41, and relief was not given. In this case I have no doubt that the plaintiffs through plaintiff 2 obtained exactly what they set out to buy, namely the remaining portion of the Koyyatope garden which remained unsold in November 1932. Plaintiff 2 knew the property well, was thoroughly conversant with its boundaries and indeed its extent, and if he was so minded, not indeed that I think it makes any difference, he could easily have had the land measured and surveyed before he entered into the sale deed of 11th November 1932. The plaintiffs have obtained for a round sum-price of Rs. 17,500, land which they were bargaining to buy. The question of the exact area that land contained in my view is a matter quite immaterial to this sale and indeed was given no thought, to my mind, by plaintiff 2 when he was negotiating the price. There is not in the sale deed a warranty that the land contains 99 grounds. It is that it contains about 99 grounds. I am not suggesting that 85 may be about 99, but am merely indicating that the question of area was not one upon which reliance was placed. If reliance had been placed upon the actual area, the word ‘about’ would not have been included in the sale deed. If it was a sale of an exact area, the sale deed by its verbiage would so have described it and it has not done so. It has described it actually by metes and bounds as plaintiff 2 acknowledges, and the result therefore is that the plaintiffs’ claim fails and the suit is dismissed with costs.
18. I wish to say this about costs. In the course of the proceedings, the defendant swore an affidavit of document on 3rd January 1934, disclosing only one document, namely the sale deed and in para. 4 of the affidavit in the usual way she deposes that according to her best knowledge, information and belief she had not then and never had had in her possession, custody or power any further documents. During the course of the trial the learned Counsel on behalf of the defendant produced documents one after the other, none of which were in the affidavit of documents. This is not a proper way of conducting litigation and is simply flaunting the discovery proceedings of this Court. In consequence of this, costs being in my discretion, whatever may be the amount recoverable by the defendant from the plaintiffs, I order a sum of Rs. 25 to be deducted there from as the discovery made by her was totally inadequate and improper, and this amount I assess as being the sum appropriate to the discovery proceedings.
