Mr. Ameer Ali :- The plaintiffs, who are members of a joint undivided Hindu family, seek in this action to enforce the specific performance of a contract of sale in respect of certain lands situated in the Town of Bombay, The defence is that the contract was entered into upon a representation by the first plaintiff, who was She managing member of the family, that the area of land purported to be sold, was considerably more than was found after the agreement was made. The suit was instituted in the Bombay High Court in its ordinary original civil jurisdiction, and was heard, in the first instance, by one of the Judges, Mr. Justice Heaton, whose judgment in the case will be more fully referred to later on. For the present purpose it is sufficient to say that that learned Judge accepted the defendant's contention that the area which the plaintiffs agreed to sell was considerably in excess of what they could sell, and actually sold. He was accordingly of opinion that the plaintiffs' suit must be dismissed, but as the parties agreed that specific performance should be enforced with compensation in money for the deficiency in the area, he sitting as an arbitrator fixed the compensation at Rs. 62,000 without prejudice to the right of the plaintiffs to appeal from the main judgment. On the plaintiffs' appeal the High Court of Bombay in its Appellate jurisdiction came to a totally different conclusion; the learned Judges of the Appellate Court were of opinion that the contract was not entered into on the basis of the representation on which the defendant relied; and they accordingly reversed Mr. Justice Heaton's order and decreed the plaintiffs' claim subject to certain reservations in respect of small quantities of land to which the plaintiffs did not appear to show good title. In the result they awarded the defendant a certain sum in respect of this land. The defendant has appealed from the judgment of the High Court to His Majesty in Council, and there is also an appeal from the second order of the High Court in respect of the compensation. These two appeals have been consolidated. [The judgment then narrated the facts in some detail and continued.] The material allegations in the plaint relating to the dispute are contained in para. These two appeals have been consolidated. [The judgment then narrated the facts in some detail and continued.] The material allegations in the plaint relating to the dispute are contained in para. 6, which is in these terms :- "The plaintiff's say that before the said agreement was executed, the defendant inspected the said property. They further say that at the time of the execution of the said agreement in answer to a question put by Mr. Madan, the defendant's solicitor, they stated that they did not know what the area of the said property was, and that they would not guarantee any area, and that to avoid all possibility of dispute, the areas of the various plots making up the said property given in the plan annexed to the said agreement were struck off by the parties. "The plaintiffs say that the defendant entered into the said agreement on the express understanding that the pries fixed therein was to be paid no matter what the actual area of the said property might turn out to be on actual measurement, and that he entered into possession and remained in possession of the said property on the said understanding, The plaintiffs deny that the defendant has any right whatsoever to rescind the said agreement or that he is entitled to make any deduction from the purchase-moneys," The defendant's case is substantially set forth in paragraphs Nos. 3, 5, 7, 14 and 16 of his written statement. In para 3 he says as follows :- "The area of the said premises coloured pink is shown on the said plan as 3,472'4 square yards. A copy of the said plan was given to this defendant when negotiations were opened with him for the sale of the said premises through the first plaintiff's broker, Hargowan Manji. Plot No, 1 on the said plan the first plaintiff had already agreed to sell to someone else, and was not included in the negotiations with this defendant. It was represented to this defendant that the said plot No. 1 measured about 500 square yards. It was represented that about 70 square yards had been taken by the Municipality, leaving about 2,900 square yards which the first plaintiff desired to sell to this defendant," In para. It was represented to this defendant that the said plot No. 1 measured about 500 square yards. It was represented that about 70 square yards had been taken by the Municipality, leaving about 2,900 square yards which the first plaintiff desired to sell to this defendant," In para. 5 he refers to the representation on which he entered into the transaction; and in para, 7 he states that it was only in October 1910, that he became aware that "the area of the plaintiff's land was not 3,472 square yards" as was represented to him, but was only 2,902 square yards- " That the area of plot No. 1 and the land taken up by the Municipality which was excluded from the sale to this defendant was 592 square yards and not 570 square yards as represented. The area actually sold to the defendant was 2,370 square yards only instead of 2,900 square yards, which had been agreed to be sold and for which this defendant had agreed to pay." In para. 12 he contends that he is entitled to the specific performance of the agreement with a proportionate abatement or in the alternative to a refund of the monies paid by him with damages" as may be justs," In para. 14 he sets out more fully the representation on which he entered into the transaction; "that it was made not only by the plaintiff's broker but by the first plaintiff himself on the day the bargain was completed; and that it was also represented that the land had been recently measured and contained 3,472 square yards, all of which representations the defendant believed and acted on as aforesaid." The case, as already stated, was tried in the first instance before Mr. Justice Heaton on the Original Side of the High Court of Bombay. In view of the conflicting statements as to the circumstances leading up to the execution of the agreement, and of the difficulty of reconciling the different statements regarding the property sold that learned Judge admitted - in their Lordships' opinion rightly - extrinsic evidence to explain the facts. Justice Heaton on the Original Side of the High Court of Bombay. In view of the conflicting statements as to the circumstances leading up to the execution of the agreement, and of the difficulty of reconciling the different statements regarding the property sold that learned Judge admitted - in their Lordships' opinion rightly - extrinsic evidence to explain the facts. It is obvious that without such explanation it would have been impossible to reconcile the statement in the body of the agreement on which the plaintiffs rested their case, with the recital in the schedule on which the defendant relied as amounting to an assurance in respect of the area that was intended to be conveyed to him, and which he in fact purported to buy. And this explanation depended almost entirely on what happened at the conference, on the 10th July, 1908, just before the signing of the agreement. A considerable body of evidence was produced on both sides in support of their respective allegations; the plaintiff stoutly contended that the land was sold by plots irrespective of area, and that the reference to area in the schedule was left there by mistake; the defendant on the other hand equally stoutly contended that it was retained as the representation in respect of the area and was an essential part of the contract. Although Mr. Justice Heaton in one part of his judgment appears to discount the oral evidence on both sides as biased and coloured by prejudice, it is clear from the general trend of his observations that he accepted the defendant's version as to what happened at the conference on the 10th July, 1908. He entirely disbelieved the plaintiff's story that the retention of the area in the schedule was due to oversight or mistake. Ha accordingly dismissed the claim for specific performance. His conclusion is expressed in the following words :- "It now remains to consider what is the precise effect of the conclusions of fact at which I have arrived. The plaintiff represented that he was selling and agreed to sell a property, including plot No. 1, according to recent "measurement 3,472'4 square yards or thereabouts, be the Same little more or less." The defendant, on the faith of this representation and statement, agreed to buy that property at a price of Rs. 3,51,500. The plaintiff represented that he was selling and agreed to sell a property, including plot No. 1, according to recent "measurement 3,472'4 square yards or thereabouts, be the Same little more or less." The defendant, on the faith of this representation and statement, agreed to buy that property at a price of Rs. 3,51,500. As a matter of fact, the plaintiffs cannot sell anything like that area, and therefore the contract written cannot be specifically performed; consequently the plaintiff's suit must be dismissed with costs." By agreement of parties the learned Judge acting as arbitrator awarded to the defendant Rs. 62,000 for compensation for deficiency of area without prejudice to the plaintiff's right of appeal from the main judgment; An appeal was preferred, and the Appellate Court differing from Mr. Justice Heaton held in substance that the allegation as to representation was not established, and that the land was sold by plots depicted in the plan irrespective of area. They accordingly reversed Mr. Justice Heaton's order, and decreed the claim for specific performance subject to certain deductions in respect of lands to which the plaintiffs were not able to show title. This part of the case has not been argued before their Lordships; the main appeal is from the decree for specific performance. Having regard to the difference of opinion in the two Courts in India, their Lordships have carefully examined the evidence, both documentary and oral. It is quite clear upon the correspondence that up to the 21st June, 1908, when the receipt for the first instalment of the earnest money was paid, the negotiations for the sale and purchase had proceeded on the basis of area per square yard. It was after the 21st June, when Billimoria began to lay stress on this fact that the plaintiff Tribhowandas repudiated the suggestion of sale by area. His idea clearly was that it would not be safe to entangle himself in a representation or guarantee as to area and with this idea in his mind he suggested on the 4th July, that if it was desired that the area should be inserted in the agreement, the land should be measured. The defendant's legal adviser relied on the previous negotiations, and ignored the suggestions. Up to the morning of the 10th July, the parties were in absolute variance with each other, each stoutly maintaining his point of view. The defendant's legal adviser relied on the previous negotiations, and ignored the suggestions. Up to the morning of the 10th July, the parties were in absolute variance with each other, each stoutly maintaining his point of view. The question then arises what happened at the conference that afternoon which led to the execution of the document in the shape in which it now stands. Though, as pointed out in Hill v. Buckley (1), " the presumption is that in fixing the price, regard was had on both sides to the quantity which both supposed the estate to consist of," yet there may be considerations which may rebut or weaken the presumption. Here the plaintiff was stoutly repudiating the idea of sale by quantity or area. Is it likely that on the afternoon of the 10th July, at the conference he abandoned his opposition, and agreed to renew the representations which he had expressly repudiated. Their Lordships entirely concur with Mr. Justice Heaton in disbelieving the story told by the plaintiffs that the area was left in the schedule by an oversight on their part. These statements, in their Lordships' opinion, are mere subterfuges in order to escape from a position of difficulty in which they had placed themselves by allowing the retention of the aggregate area in the schedule. Had they taken up an honest attitude the difficulties in the right determination of the main issue would have been considerably lessened. Mr. Justice Heaton's view has been influenced in a great measure by the falsehood of the plaintiff's statements. He says :- (1) (1811) 17 Ves. 394. "Had the contest between the parties taken a different line, it might have been maintained by the plaintiff's that the area in the schedule was merely a description of the land and nothing more, because it is the same as the description which occurs in Hakimji's Deed and might be regarded possibly as a common and recognized description of Tribhowandas's portion of the Jamnagiry estate, This, however, is not the view of either party. The plaintiff's have definitely committed themselves to the assertion that the area was entered in and remained in the schedule without their knowledge, and that had they known of it they would not have signed the deed. The plaintiff's have definitely committed themselves to the assertion that the area was entered in and remained in the schedule without their knowledge, and that had they known of it they would not have signed the deed. The defendant, on the other hand, maintains that the area was entered because the bargain between the parties was that approximately the area stated was sold. It is therefore unnecessary to consider the question as it would have had to be considered were it seriously represented that the area was entered merely as a description of the land." After a careful consideration of the evidence, their Lordships are led to the conclusion that at the conference neither party was willing to resile from the position taken up in the correspondence between the 27th June and the 10th July; that the plaintiffs did not intend to guarantee the area sold or to make a representation in respect thereof as would amount to an assurance; but designedly or undesignedly they left the defendant under the impression that the deficiency in area, if any, would not be great. With this the defendant was willing, perhaps too willing, to remain content, for no steps were taken to have a measurement made until nearly two years later. Their Lordships share Mr. Justice Heaton's doubts as to the truth of the plaintiffs' statement that the defendant had the land measured shortly after the execution of the agreement That such was the trend and final result of the discussion is confirmed by the statement contained in the letter of the plaintiffs' solicitor, dated the 24th December 1910, already referred to. In the circumstances, the words in the schedule cannot be regarded as anything more than words of description. In the circumstances, the words in the schedule cannot be regarded as anything more than words of description. This point is dealt with by the Chief Justice in the following passage :- A question upon which I have found it very difficult to arrive at a conclusion remains upon the evidence recorded, namely, whether although the alleged misrepresentation of an area of 2,900 square yards is not made cut the defendant did not, owing to a mistake of facts to which the plaintiff's contributed enter into the contract under a reasonable misapprehension that he would get not lass than 2,800 square yards, and whether under section 26 (b) of the Specific Relief Act he is not entitled to some abatement in the purchase money due under the contract or to the conveyance of more land bringing up his holding to 2,800 square yards." And at the end he adds as follows :- "My difficulty in deciding this question has been increased by the plaintiff's allegations in his plaint that the property sold contains more than 2,800 square yards and his admission in cross-examination that that figure includes some passage land of which he obtained a conveyance from his brother after suit. On the whole I think that as the plaintiff is willing to include this land in the conveyance to the defendant, he is entitled to a decree for the purchase money on the execution of such conveyance subject to showing a good title." Although the plaintiffs by their false statements in Court added considerably to the difficulty of determining this case, it is clear to their Lordships that the retention of the area in the schedule was not by way of an assurance; that it amounted to no more than a mis-description. On the whole their Lordships are of opinion that the judgment of the Appellate Court in India should be maintained, and that this appeal should be dismissed with costs, and their Lordships will humbly advise His Majesty accordingly. Appeal dismissed.