JUDGMENT Sir Francis W. Maclean K.C.I.E., C.J. - On the 8th of July 1899 the present Appellant became the purchaser of certain property which was put up for sale by auction under a decree in a mortgage suit; and on the same day he made a deposit of 3,200 rupees, the purchase-money of the lot he purchased being 12,600 rupees. Under the seventh condition of sale the abstract of title was to be delivered within seven days from the certificate; and the purchaser was to make his requisitions within ten days after the actual delivery of the abstract and in this respect time was to be deemed as of the essence of the contract and the title was to be considered as approved of and accepted by the purchaser, subject only to such objections and requisitions if any. 2. The abstract was duly delivered within the seven days, but no requisitions or objections were taken by the purchaser within the ten days limited by the condition. 3. On the 19th of August, an order was made in the suit that the present Appellant, the purchaser, should be at liberty to pay into Court the balance of the purchase-money without prejudice to his right to raise any question as to title or compensation; and this order was complied with on the 31st of August by the purchaser paying in the balance. 4. On the 26th of April 1900 the purchaser applied for the annulment of the sale or for compensation, on certain grounds which he alleged : and on the 30th of August 1900 the sale was set aside. That order, however, was reversed by the Court on appeal on the 28th of February 1902, this Court holding that it was not a case for setting aside the sale, but for a compensation. For present purposes nothing turns upon these orders. 5. On the 9th January 1900, the purchaser asked for inspection of the title-deeds and as to this he stated in his petition, which is verified by affidavit and in substance not contradicted, that "the Petitioner being desirous of looking into the documents relating to the property purchased by him and set out in the abstract of title called with his attorney, Babu Bepin Behari Banerjee, at the office of Messrs. Carruthers and Co., to inspect the same and a bundle of documents relating to this, as also of other property, including a Bengalee pottah, were produced and shown and he looked into the Bengalee writings in the said pottah, but your Petitioner and his attorney were unable to understand the Persian writings and had no notice whatever or any reason to suppose that the pottah produced was not in accordance with the abstract." The pottah is referred to in the abstract of title in these terms : "By a Bengalee pottah of the 21st of Aughran 1226 B.S. (5th December 1891), granted by Munna Jan Begum to Chaytan Mandal, bastoo land 4 cottahs and patit land 3 cottahs (total 7 cottahs of land), to be held and enjoyed in succession of son and grandson with power of sale and gift, on payment of annual rent of Re. 1-8. Signed by Munna Jan Begum in Persian character and seal affixed." 6. After the order of the 28th February 1902, the purchaser again asked (sic) inspect the title-deeds, to compare them with the abstract of title and this request was complied with. And this, as appears from the Petitioner's verified petition, is what occurred : "20. On receipt of the said document," that is, the pottah in question," from the Plaintiff's (sic) your Petitioner caused the said pottah to be read out by an expert, who thoroughly understands the Persian language and character and he then found out that the said pottah was neither granted by Munna Jan Begum nor was it signed by her, but it appears from the Persian writings therein that the same was signed by" certain other person named in that paragraph. "A copy of translation of the said pottah as made by one of the sworn translators of this Honourable Court is hereunto annexed and marked with the letter B." "21. That your Petitioner then came to know that the first abstracted document, namely, the pottah granted by Munna Jan Begum in favour of Chaytan Mandal and signed by Munna Jan Begum, does not correspond with the document as described in the abstract of title. The said document is described in the abstract of title thus "--I need not read it again, as I have read it just now--" but it appears from the original pottah sent by Messrs. Carruthers and Co. The said document is described in the abstract of title thus "--I need not read it again, as I have read it just now--" but it appears from the original pottah sent by Messrs. Carruthers and Co. on the 5th day of May last that the said document was not granted by Munna Jan Begum, but by one Jonab Nawab Syed Ali Khan Bahadur, Mutwalli of the said Emambaree of Hooghly." 7. Upon that the purchaser made the present application by which he asks to have his purchase-money refunded with interest and costs : and the question we have have to decide is whether under these circumstances, which are practically undisputed, he is entitled to that relief. 8. The learned Judge in the Court below concluded that he was not and hence the present appeal. 9. It is clear that the description given in the abstract of title, of this pottah, which is admittedly the root of title to the property sold, is wholly at variance with the document itself. In point of fact there is no pottah granted by Munna Jan Begum, nor was any such pottah ever signed by her. In other words, the title-deed, which is made the root of title, does not exist. Under these circumstances the purchaser says that the vendors cannot make out a title and that he is entitled to have the contract rescinded and his purchase-money returned. 10. The vendors, in reply, say that the purchaser is barred by condition 7 from now raising this objection. I dissent from that view. That condition cannot apply to a case where the abstract delivered is incorrect and contains a most material misdescription of the document which is made the root of title. That condition presupposes that the abstract of title delivered will be an accurate and true one. 11. The purchase-money is still in Court and the sale has not been confirmed and the purchaser having discovered, under the circumstances, I have stated, the true facts of the case, there is nothing to prevent him from bringing them before the Court and asking for the return of his purchase-money. 12. It is said he was guilty of carelessness on the 9th January 1900, in not doing then what he subsequently did, namely, having a translation made of the pottah and seeing what the document really was. 13. 12. It is said he was guilty of carelessness on the 9th January 1900, in not doing then what he subsequently did, namely, having a translation made of the pottah and seeing what the document really was. 13. I do not know that it lies in the mouth of the vendors to say this, for the purchaser may retort that he was entitled to rely on the statement in the abstract as to the nature of the pottah : any way it is not sufficient to prevent him from now raising the question. 14. The sale in question was one under the direction of the Court : and it was pointed out by Lord Justice Cotton in the case of In re Banister (1879) L.R. 12 Ch. D, 131, 150 what is the duty of the Court in cases akin to the present. His Lordship says: In a case of this sort where the sale is by the Court, the Court is bound to take more special care, if possible, that there shall be nothing in the conditions, or in the representations there in contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting. 15. Such cases as M'Culloch v. Gregory (1855) 1 Kay and J. 286, Else v. Else (1871) L.R. 13 Eq. 196, which are commented upon in a recent case in this Court by Mr. Justice Stanley Upendra Nath Mitter v. Abhoy Kali Dassee (1901) 5 C.W.N. 593, support the principle that, under circumstances such as the present, the purchaser is entitled to have his purchase-money refunded. There is no such pottah as is represented in the abstract and there has been a material misrepresentation, as to this. 16. For these reasons the order of the Court below must be discharged. 17. As regards the precise order to be made, we will give Mr. Dunne's client a week to consider whether, under the circumstances, he thinks it worth while to have a reference to title, the present Appellant not objecting to such reference if the other side so desire. 18. We will deal with the question of costs after Mr. Dunne's client has decided what he will do. Stevens J. 19. I concur. Dunne's client a week to consider whether, under the circumstances, he thinks it worth while to have a reference to title, the present Appellant not objecting to such reference if the other side so desire. 18. We will deal with the question of costs after Mr. Dunne's client has decided what he will do. Stevens J. 19. I concur. Sale J. 20. In assenting to the order which the learned Chief Justice proposes to make in this matter, I wish to say that I entirely agree with the view which has been taken as regards the operation of condition 7 of the conditions of sale. I agree that it does not operate so as to preclude the purchaser from raising a question as regards misrepresentation after the period mentioned in the condition for raising objections to the abstract of title. I also agree, that sitting here as a Court of Equity, we ought not in a case where there has been admittedly serious misrepresentation as regards a material document of title, to hold the purchaser to his bargain without a previous reference as to title. 21. At the expiration of a week their Lordships made the following order: Maclean C.J. 22. This case stood over for a week to give Mr. Dunne's clients an opportunity of saying whether they desired to have a reference to title. Mr. Dunne tells us this morning, that they do not ask for such a reference and I think they are wise in the conclusion they have come to. 23. The result, then, will be that there will be an order for the return of the purchase-money to the Appellant and the Appellant, the purchaser, will have his costs of this appeal and in the Lower Court. Sale J. 24. I concur. Stevens J. 25. I concur.