JUDGMENT 1. This is a suit by am auction-purchaser for a declaration that the auction sale held on 5 December 1957, and the agreement for sale of the same date are null and void and liable to be set aside and cancelled respectively, on the ground of fraud, misrepresentation and for suppression of material defect in the seller's title by the defendants nos. 1 to 4 and for want of saleable interest in the properties sold. The facts out of which this action arises are as follows: 2. On or about the 4 December 1956 Dharam Chand Raniwala and a Motilal Jhunjhunwala jointly filed a suit being suit No. 3032 of 1956 of this Court against Aminuddin Ahmed alias Aftabuddin Ahmed for recovery of Rs. 5,000/- for money lent and advanced on a promissory note. At the time of the filing of the above suit Dharam Chand and Motilal also held a registered mortgage from Aminuddin on his 10/l8ths share in premises Nos. 12a and 12b Fullbagan Road and 23/a and 23/b, Mofidu Islam Lane which had by then become due and payable. It appears that a mortgage suit was not brought as it had to be filed in the Alipore Court on payment of advalorem duty. On 7 December 1956 a consent decree was passed in suit No. 3032 of 1956 for Rs. 5,000/ -. From the Terms of Settlement filed it appears that Aminuddin Ahmed agreed to pay the decretal amount out of the sale proceeds of his undivided 10/18ths share in the properties mortgaged which was to be sold by Mackenzie Lyall and Co., by public auction to the highest bidder on proper advertisement. The decree provided that the auctioneers would pay the decretal amount as provided in the decree and retain all costs incurred for such sale and their commission out of the sale proceeds and thereafter pay the balance to the judgment debtor Aminuddin Ahmed. It was further provided that Messrs. Mackenzie Lyall and Co. would be competent to execute a conveyance for the sale on behalf of Aminuddin Ahmed if he refused or neglected to do so and in case Mackenzie Lyall and Co., refused to act as auctioneer, Dharam Chand Raniwala and Motilal Jhunjhunwala, the plaintiffs in that suit would be competent to) act as such auctioneers on the same terms and conditions and with like powers therein provided. At the time of this consent decree the defendant Aminuddin Ahmed appeared in person unrepresented by any Solicitor and from the terms it appears also that he waived the service of the writ of summons. After passing of the consent decree it appears that on 17 August 1956 a notification of sale and conditions of sale of the aforesaid properties was published by Messrs Mackenzie Lyall and Co. under instructions of Messrs. S. N. Mukherjee and Co., Solicitors for Dharam Chand Raniwala and Motilal Jhunjhunwala in terms of the consent decree. I find that the sale so advertised and fixed for 17 August 1956 was in fact not held on that date and thereafter on 5 December 1957 the properties were again advertised for auction by Mackenzie Lyall and Co., on the same terms and conditions as before, under instructions from Messrs. S. N. Mukherjee and Co. the Solicitors for the decree-holders. This auction was duly held on 5 December 1957 when Sk. Moula Buksh and S. M. Rashid were jointly declared the highest bidders and purchasers of the right, title and interest of Aminuddin Ahmed in his undivided 10/18ths share of premises Nos. 12a and 12b Fulbagan Road for Rs. 17,000/ -. The auction-purchasers duly paid Rs. 4,250/ - being 25 per cent, of the purchase price to Mackenzie Lyall and Co., and entered into an agreement with them in accordance with the form attached to the notification of sale and the conditions of sale. Thereafter on 30 December 1957 before the date of completion had arrived the auction-purchasers repudiated the agreement inter alia on the ground that during investigation of title they had discovered that before the auction the judgment-debtor Aminuddin Ahmed had entered into agreements with third parties which made the sale void, inoperative and not binding upon them and further the defendants had willfully, fraudulently and with ulterior motive suppressed the aforesaid prior assignment from the notification of sale and that the notification of sale misrepresented the facts relating to the subject matter of sale thus making it also void, inoperative, invalid and not binding on them. Further the purported sale held thereunder was void for fraud and for want of saleable interest of the defendant No. 3 in the properties sold. Further the purported sale held thereunder was void for fraud and for want of saleable interest of the defendant No. 3 in the properties sold. The plaintiffs therefore demanded refund of the 25 percent, of the purchase money deposited by them from Mackenzie Lyall and Co., as money had received and/or upon total failure of consideration. On 3 January 1958 the auction-purchasers through their Solicitor Mr. S. M. Chatterjee again wrote to Mackenzie Lyall and Co. stating that upon investigation of title it appeared that the judgment-debtor Aminuddin Ahmed had by a registered deed of assignment dated 15 February 1949 assigned his right, title and interest in the premises Nos. 12a and 12b Fulbagan Road and 23/a and 23/b Mofidu Islam Lane, Calcutta for Rs. 10,000/- and that a certified copy of the said deed of 15 February 1949 had been obtained and inspection could be taken thereof. It was further stated that Aminuddin Ahmed thus had no interest in the premises purported to have been sold on 5 December 1957 and as such the sale was void ab initio and his clients were inclined and were prepared to accept the refund of Rs. 4,250/ - deposited with them. 3. Mackenzie Lyall and Co. however did not refund. Thereafter it appears that certain, proceedings were taken both by the decree-holders and the auction-purchasers in suit No. 3032 of 1956 with regard to the deposit of Rs. 4,250/- and eventually the amount was brought to Court and is still lying there at the moment. I am told that the auction-purchasers also brought an application for refund of the deposit but on the said application no orders were passed. 4. In these circumstances on 1 December 1958 the present suit was brought by the plaintiffs auction-purchasers against these defendants inter alia for- (a) A declaration that the auction sale held on 5 December 1957 is void, illegal and inoperative and is liable to be set aside on the grounds of fraud of the defendants 1 to 4 and also for want of any saleable interest of the defendant No. 3 in the premises purported to have been sold. (b) A declaration that the agreement for sale dated 5 December 1957 entered into between the plaintiffs and the defendant No. 4 is invalid, inoperative and not binding on the parties. (c) Declaration that the purported forfeiture by Mackenzie Lyall and Co. of Rs. (b) A declaration that the agreement for sale dated 5 December 1957 entered into between the plaintiffs and the defendant No. 4 is invalid, inoperative and not binding on the parties. (c) Declaration that the purported forfeiture by Mackenzie Lyall and Co. of Rs. 4,250/ - and the ex-parte order dated 3 July 1958 are illegal, invalid and not binding. (d) Decree for Rs. 4,250/ -. (e) Delivery up of the agreement of sale dated 5 December 1957 and cancellation thereof. (f) Interest, damages etc. In the plaint no relief has been claimed against the defendants Nos. 3 and 5 who have been made party defendants for proper determination of the suit in their presence. There are two written statements, one filed jointly by the defendant Nos. 1 and 2 and the other by defendant No. 4. Defendants Nos. 3 ad 5 have not appeared or filed any written statement. The main defence taken by defendants Nos. 1 and 2 is that this Court has no jurisdiction to entertain the suit because a question of title to land situate outside the jurisdiction is in evolved. The other defences of these defendants, taken in their written statement, can be summarised as follows :- (a) No knowledge of the assignment dated 15 of February 1949; (b) Prior to 24 April 1958 they or any of them or their Solicitor had no knowledge of any such deed; (c) Reference of the deed was not found by them even on searches of the records of the Sub-Registrar's office at Sealdah and District Registrar's office at Alipore; (d) The deed of assignment and/or the consideration referred to therein are denied : (e) Denied that defendant No. 3 had no saleable interest on the date of the sale; (f) The deed of assignment dated 15 February 1949 is a colorable document caused to exist in the Calcutta Registration Office while the properties were situated outside the jurisdiction; (g) Denied fraudulent suppression of the deed of assignment and also denied that the notification of sale misrepresented any fact relating to the subject-matter of sale or that it was void, invalid, inoperative and not binding on the plaintiffs or that the plaintiffs were induced by any such alleged fraud or misrepresentation. Defendant No. 4 in its written statement denies fraud and suppression of any knowledge of the deed of assignment. It denies forfeiture of Rs. Defendant No. 4 in its written statement denies fraud and suppression of any knowledge of the deed of assignment. It denies forfeiture of Rs. 4,250/- and states that it deposited the said amount in Court as there were disputes over it between the plaintiffs and the defendants Nos. 1 and 2. 5. On behalf of the plaintiffs, Maula Bux and a number of witnesses were examined. On behalf of the defendants Dharam Chand Raniwalla and Mr. Middleton were examined. The following Issues were raised: 1. Was there any deed of assignment by defendant No. 3 of his right, title and interest in premises Nos. 12a and 12b (formerly No. 12)Fulbagan Road, Calcutta in favour of defendant No. 5? 2. Did the defendant No. 3 have any saleable interest in the said premises sold to the plaintiffs on the date of sale and/or decree dated the 7th December, 1956 ? 3. Did the defendants Nos. 1, 2 and 4 fraudulently suppress the prior assignment dated the 15th February, 1949 in the Notification of Sale being Ex. B to the plaint? If so, is the sale liable to be set aside? 4. Did the defendants Nos. 1, 2 and 4 have knowledge of the Deed of assignment dated 15th February 1949 prior to 24th April, 1958 ? 5 (a) Are the plaintiffs entitled to repudiate the sale and claim refund of the amount paid by them as earnest money ? (b) Was there a total failure of consideration, as alleged in paragraph 6 of the plaint? 6. Did the defendant No. 4 forfeit Rs. 4250/-? If so, was such forfeiture wrongful, illegal, inoperative and not binding on the plaintiffs, as alleged in paragraph 7 of the plaint? 7. Has this Court jurisdiction to entertain this suit ? 6. Is the suit barred by res judicata or principles analogous thereto as stated in paragraph 3 of the written statement of defendants Nos. 1 and 2? What relief, if any, are the plaintiffs entitled to? 8. Mr. M. N. Banerjee, counsel for the defendants Nos. 1 and 2 first argued the point of jurisdiction. 6. Is the suit barred by res judicata or principles analogous thereto as stated in paragraph 3 of the written statement of defendants Nos. 1 and 2? What relief, if any, are the plaintiffs entitled to? 8. Mr. M. N. Banerjee, counsel for the defendants Nos. 1 and 2 first argued the point of jurisdiction. He contended that as the properties sold arc situate outside the jurisdiction and as any decision regarding the saleable interest in the properties (which is in issue) must necessarily touch the question of title to such properties this suit must be held to be a suit for land and as such this Court cannot entertain it. This indeed is a singular defence to an action for a declaration that a sale held within jurisdiction is null and void and the agreement for sale is invalid, for fraud, misrepresentation, suppression of material defect in the seller's title and for want of saleable interest in the property sold and setting aside the sale and cancellation of the agreement. 9. This perplexing question which falls for my determination has in the past been considered by different courts in India and though considerable diversity of opinion was expressed, not so much on the construction of the words "suit for land" as on its application to the particular type of suit, yet as I read the law laid down in those cases I find one uniform view which may now be taken to be well settled that where in the suit the question raised is directly and substantially a question of adjudication of title to land or for possession of land or where as a result of the decision of the suit the title or possession or control of land is to be directly affected or interfered with, the suit is held to be a "suit for land". But it has also been said by a large majority of Judges that the expression "suit for land" should not be narrowly confined and limited to suits fur recovery of possession of land or to obtain declaration of title to land only. It appears also that the wider meaning of the expression so as to cover all suits relating to land, that is, which has anything to do with land is not accepted by any one. (See A.I.R. 1950 F. C 83) (1). The question is where should the line be drawn? It appears also that the wider meaning of the expression so as to cover all suits relating to land, that is, which has anything to do with land is not accepted by any one. (See A.I.R. 1950 F. C 83) (1). The question is where should the line be drawn? No judicial decision has attempted to give exhaustive enumeration of the suits covered by the expression. In any case it seems to follow that if the question of title arises in the suit incidentally or collaterally for the purpose of granting a relief other than obtaining possession or declaration of title the suit cannot be held to be a suit for land. In 57 C.W.N. 337 at 340 (2) and 23 C.W.N. 647 at 648 (3) it was held that the Court can go into the question of title incidentally and collaterally in order to give the relief prayed for. In A.I.R. 1950 F. C. 83, (1) which has been relied on by the parties all the learned Judges after considering a large number of cases bearing on this particular question expressed a similar view and I do not think it is necessary for me to refer to any other cases after this Federal Court decision. At p. 89 of the above Federal Court case Kania, C J. observed as follows: "it is sufficient to say that taking the suit as a whole one has to consider whether it is for the purpose of obtaining a direction for possession or a decision of title to land or the object of the suit is something different but involves the consideration of the question of title to land indirectly. " 7. Mahajan, J. observed at page 105, para 81-"where incidentally in a suit the main purpose of which or the primary object of which is quite different some relief is to be given about land the title to which not being in dispute in the real sense of the term then such a suit cannot fall within the four corners of this expression. In each case the Court has to determine the true nature of the suit. " 8. In each case the Court has to determine the true nature of the suit. " 8. At page 119, para 143 B. K. Mukherjee, J., held-"the words 'suit for land' mean a suit for establishing title to land or any interest in the same or for possession or control thereof and the decree sought for must be intended propria vigore to be enforceable against and binding on the land itself. " At page 97, para 53 Patanjali Sastri, J., held-"the words 'suit for land' besides obviously covering claims for recovery of possession or control of land are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or determination of any right or interest therein. " 9. Fazal Ali, J., at page 96 observed-"this question is said to be an important one since there has been considerable divergence of opinion in regard to it and if I had really felt that I was called upon to decide it I would have agreed with the line of cases in which it has been held that broadly speaking the expression 'suit for land' covers the following three classes of suits: " (1) Suits for determination of title to land; (2) Suit for possession of land; and (3) Other suits which the relief claimed if granted would directly affect title to or possession of land. " 10. Thus the question largely depends upon the true nature of the suit. Looking at the plaint in this suit it clearly appears that the main reliefs asked for is a declaration that the sale is void and be set aside and that the agreement for sale be declared invalid and be cancelled for fraud, misrepresentation and suppression of material defect in the title and for want of saleable interest in the property sold. No relief is asked for adjudication of title or possession of the property except an incidental finding that the seller had no saleable interest in the property sold by reason of prior assignment so as to enable the court to grant the relief prayed for. An agreement for sale of itself creates no interest or charge on land. Here the Court is not called upon finally to determine any question of title or right to possession of land binding on or enforceable against the land itself. Next it was contended by Mr. An agreement for sale of itself creates no interest or charge on land. Here the Court is not called upon finally to determine any question of title or right to possession of land binding on or enforceable against the land itself. Next it was contended by Mr. M. M. Banerji that inasmuch as there is a prayer in the plaint for going into the question of saleable interest in the property sold which is a question, touching title to land situate outside jurisdiction this suit should fail. In my opinion there is no substance in this contention, for inclusion or absence of a. prayer is not decisive of the true nature of the suit nor is the order in which the prayers are alleged in the plaint. The substance or object of the suit has to be gathered from averments made in the plaint and on which the reliefs asked for in the prayer are based. The plaintiff may ask for a relief which a Court of equity may not grant. But there would be no justification to non-suit the plaintiff because of such a prayer. That would be insisting on the form of pleading and not on the substance of the suit. (See A.I.R. 1950 F. C. at page 92 vide Kania, C. J.. 11. There cannot be any question that the substance and object of the present suit are to obtain a declaration that the auction is void for fraud and for cancellation of the agreement of sale and other consequential reliefs. There cannot be any doubt also that the entire cause of action in the suit arose within jurisdiction. That being the gist of the plaintiffs' claim I am of the opinion that this suit is not a suit for land within the meaning of cl. 12 of the Letters Patent and hold that this Court has jurisdiction to entertain this suit and also to go into the question of title incidentally and collaterally for the purpose of granting relief though it cannot finally determine or adjudicate upon such question of title. This view is also supported by the decision of the Privy Council in Benode v. Nistarini (4) 32 I. A. 193 (also reported in 33 Cal. 180 P. C.. Thus the issue No. 7 is answered in the affirmative. Issue Nos. 1, 2 and 5 (b) : 12. This view is also supported by the decision of the Privy Council in Benode v. Nistarini (4) 32 I. A. 193 (also reported in 33 Cal. 180 P. C.. Thus the issue No. 7 is answered in the affirmative. Issue Nos. 1, 2 and 5 (b) : 12. Reading paragraph 9 of the written statement of the defendants Nos. 1 and 2 it appears to me that the fact of existence of the Deed of 15 February 1949 is admitted by them although they deny and dispute its validity; such admission in my opinion can be read and reasonably be inferred from the following sentences in the paragraph- (a) The defendants knew of the alleged Deed of Assignment only on reading the affidavit affirmed, by the plaintiff on 24 April, 1948. (b) These defendants or any of them or their Solicitor had no knowledge previous thereto of any such Deed. (c) Reference of the said Deed was not found even on searches of the records. . . . . . (d) The purported Deed of Assignment is on the face of it a mere assignment of the right of redemption etc., and lastly (e) The said alleged assignment is a colorable document. . . . . . Apart from such admission there is also sufficient evidence on record which clearly establishes the existence of the Deed dated 15 February 1949. Mr. Umar, who by a registered Deed dated 13 October, 1958 purchased these premises Nos. 12a and 12b, Fulbagan Road from the defendant No. 5, in his evidence stated that before purchasing these properties he made searches and found that Aminuddin had assigned his interest in these properties to Hafiz Rasul Buksh, the defendant No. 5. He also made enquiries from Aminuddin Ahmed himself. He called for the original conveyance dated 15 February, 1949 but it was missing and not shown to him by Hafiz and therefore in order to be sure he enquired of Aminuddin before purchasing the properties. He took Aminuddin to the Registration office and there he found Aminuddin's signature and thumb impression which upon being shown to Aminuddin were admitted by him to be his. He took Aminuddin to the Registration office and there he found Aminuddin's signature and thumb impression which upon being shown to Aminuddin were admitted by him to be his. I accept this evidence which clearly establishes the identity and existence of the Deed dated 15 February 1949 and also proves the signature and thumb impression of Aminuddin in exhibits T and H in the Index Book of 1947 and 1949 produced from the Registration office at Sealdah and Calcutta. Mr. Umar also produced in Court a certified copy of the conveyance dated 15 February 1949 from Aminuddin Ahmed to Hafiz Rasul Buksh issuer on 16 July 1952 and a declaration by Aminuddin Ahmed dated 16 February 1949 (Ex. J1) which he said were handed over to him by Hand Rasul Buksh as part of the title of the properties he purchased from him. Exhibit J1 clearly shows that Aminuddin Ahmed had executed an Indenture of assignment in favour of Hafiz Rasul Buksh. Mr. Umar categorically stated that Aminuddin admitted to him that the signature on J1 was his. He fully satisfied himself that the man who admitted the signature on exhibit J1 to him was Aminuddin Ahmed. Exhibit K is a letter signed by Aminuddin Ahmed confirming handing over possession to Mr. Umar as agent of Hafiz Rasul Buksh and a request to appoint him as his (Umar's) Agent. There is ample evidence on record that Aminuddin was not in actual possession of the premises Nos. 12a and 12b Fulbagan Road but Mr. Umar was in possession. Exhibit 'k' clearly proves that Exhibit L is the counterfoil of rent bills issued by Mr. Umar which has not been challenged at all. No doubt all these clearly proves the existence of the Deed of Assignment dated 15 of February 1949. 13. Apart from what is stated above the plaintiff has also tendered in evidence the public records from the Registration office at Calcutta, Sealdah and Alipore, Book No. 1 under Section 15 and indexes under Section 55 of the Registration Act in respect of the Deed of Assignment dated 15 February, 1949 which are exhibits in this suit. 13. Apart from what is stated above the plaintiff has also tendered in evidence the public records from the Registration office at Calcutta, Sealdah and Alipore, Book No. 1 under Section 15 and indexes under Section 55 of the Registration Act in respect of the Deed of Assignment dated 15 February, 1949 which are exhibits in this suit. The evidence of Kanai Lal Mukherjee, Sailendra Mohan Sen Gupta and Bakul Bose who were examined on behalf of the plaintiffs clearly establishes that the Deed of Assignment dated 15 February, 1949 was registered at Calcutta, Alipore and Sealdah Registration offices in accordance with law and I have no hesitation in accepting their evidence. No doubt the Deed of assignment is a document compulsorily registrable under Section 17 (1) (b) of the Registration Act. A certified copy of this Deed has been tendered in evidence and is marked exhibit C. Question is whether this certified copy is admissible for the purpose of proving the contents of the original. Section 57 (5) of the Registration Act provides that all copies given under this Section shall be signed and sealed by the Registering Officer and shall be admissible for the purpose of proving the contents of the original documents. Section 60 (2) of the Registration Act provides that the certificate of registration shall be signed, sealed and dated by the Registering Officer and shall then be admissible for the purpose of proving that the document has: been duly registered in the manner provided by the Act and the facts mentioned in the endorsement referred to in Section 59 have occurred as therein mentioned. Under Section 63 of the Evidence Act secondary evidence means and includes certified copies given under the provision of Section 76 of the Act which deals with public documents. Bakul Bose proved that she copied from the original. She was not cross-examined. Thus the content was proved. By Section 74 (2) of the Evidence Act public document includes public records kept in any State of private documents. Bakul Bose proved that she copied from the original. She was not cross-examined. Thus the content was proved. By Section 74 (2) of the Evidence Act public document includes public records kept in any State of private documents. Section 65 of the Evidence Act inter alia provides that secondary evidence may be given of the existence, condition or contents of a document in the following cases, namely, 65 (c)-when the original has been destroyed or lost, 65 (e)-when the original is a public document within the meaning of Section 74, and 65 (f)-when the original is a document of which a certified copy is permitted by this Act or by any other law in force in India to be given in evidence. In case of 65 (c) any secondary evidence of the contents is admissible but in the case of 65 (e) and 65 (f) a certified copy of the document but no other kind of secondary evidence is admissible. I am satisfied that all these requirements have been fulfilled in this case and the foundation as to loss of the original laid by Umar's evidence that he came to know from Hafiz that it was missing, there was burglary and he lost it. . Hafiz is a party to this suit. He could have come forward and denied it but he did not appear nor was he called by the appearing defendants as a witness. In cross-examination Umar was asked by Mr. Banerjee about this burglary which he said took place a few years before. (Q). 765, 768. Thus the certified copy of the Deed of Assignment, exhibit C, must be held to be admissible for the purpose of proving the contents of the original. Exhibit C on the face of it is a Deed of assignment whereby Aminuddin Ahmed transferred his right, title and interest in the premises No. 12a and 12b Fulbagan Road to Hafiz Rasul Buksh on 15 February, 1949 and as such prima facie he had no saleable interest in the property sold at the time of the auction on 5 of December, 1957 and there was a total failure of consideration. This undoubtedly is a material defect in the title of the property which was not disclosed at the time of sale, thus exposing the auction-purchaser to the risk of adverse claim. This undoubtedly is a material defect in the title of the property which was not disclosed at the time of sale, thus exposing the auction-purchaser to the risk of adverse claim. This defect is not merely a defect in property which the buyer could immediately discover and thereafter make his offer. This is a material defect in title not capable of being discovered at the moment as it is in its operation and effect potential and prospective [vide (5) A.I.R. 1936 Nag. 4 at page 6]. 14. I am fully satisfied that the plaintiffs did not know of the existence of the Deed of assignment dated 15 February, 1949 at the time of the auction. There cannot be any doubt that the plaintiff certainly would not have bid for this property if he had known about this assignment. In his evidence Moula Buksh (plaintiff No. 1) categorically stated that he would not have bought the property if he had known about this assignment. It appears that although under the consent decree the decree-holders were given leave to bid, no bid was made by Dharamchand and Motilal at the auction. Reading the evidence I have no doubt in my mind that the defendants Nos. 1 and 2 and their Solicitor had full knowledge of this assignment dated 15 February, 1949 prior to the auction held on 5 December, 1957 but they deliberately suppressed this fact from the notification of sale. I shall give further reasons why I hold this view when I shall later in my judgment deal with issues Nos. 3 and 4. For the reasons stated I answer the issues as follows: issue No. 1 is answered in the affirmative. Issue No. 2 is answered in the negative. Issue No. 5 (b) is answered in the affirmative. Issues Nos. 3, 4 and 5 (a) : It was contended on behalf of the defendants Nos. 1 and 2 that neither these defendants nor their Solicitor Sailen Mukherjee of S. N. Mukherjee and Co. had any knowledge of the Deed of assignment dated 15 February, 1949 prior to the auction held on 5 December, 1957. Dharam Chand Raniwalla. the defendant No. 1, who gave evidence in this case said that for the first time they came to know about this alleged Deed of assignment from the letter dated 3 January, 1958 from Mr. had any knowledge of the Deed of assignment dated 15 February, 1949 prior to the auction held on 5 December, 1957. Dharam Chand Raniwalla. the defendant No. 1, who gave evidence in this case said that for the first time they came to know about this alleged Deed of assignment from the letter dated 3 January, 1958 from Mr. S. M. Chatterjee, Attorney for the plaintiffs that there was such a document. He further said that prior to that all necessary searches were made by their Solicitor Balen Mukherjee on their behalf but no reference of the Deed of assignment dated 15 February, 1949 was found in the records of the Sub-Registrar's office at Sealdah and District Registrar's office at Alipore. He admitted that before he took his mortgage from Aminuddin in 1956 all necessary searches were also made by Balen his solicitor in the Registration offices but with the same result. He further said that before the auction on 5 December, 1957 searches were also made in the Registration offices by his Solicitor Balen but no reference of the Deed of assignment was found. He laid everything on his Solicitor upon whom he had implicit faith and confidence and said if such reference was found he did not see any reason why that should not have been stated in the notification of sale. It should be noted here that Dharam Chand Raniwalla has not made any allegation of fraudulent concealment against his Solicitor Balen on the contrary he has emphasised upon his absolute faith and confidence in him. This Balen Mukherjee, however, was not called as a witness. 15. Reading the whole of the evidence of Dharam Chand Raniwalla one cannot have any doubt that he is not a truthful witness at all. I am unable to put any reliance on him, entirely disbelieve him and reject his evidence. I have no doubt that both the defendants Nos. 1 and 2 and their Solicitor Balen well knew about the Deed of assignment dated 15 February, 1949. In this respect it cannot be overlooked and it is admitted also that when the Money Suit No. 3032 of 1956 was filed in this Court by Dharam Chand Raniwalla and Motilal Jhunjhunwalla against Aminuddin Ahmed in December, 1956 they were holding a registered mortgage from Aminuddin which has already become due and payable. In this respect it cannot be overlooked and it is admitted also that when the Money Suit No. 3032 of 1956 was filed in this Court by Dharam Chand Raniwalla and Motilal Jhunjhunwalla against Aminuddin Ahmed in December, 1956 they were holding a registered mortgage from Aminuddin which has already become due and payable. But no mortgage suit was brought- instead the Money Suit No. 3032 of 1956 was filed in this Court. It appears that within three days of the ling of this suit a consent decree for Rs. 5,000/- was passed on 7 December, 1956. The consent decree records that Aminuddin Ahmed waived service of the writ of summons and really agreed to pay the decretal amount out of the sale proceeds arising out of the sale of his undivided 10/18ths in the premises, namely 12a and 12b, Fulbagan Road and 23a and 23b, Mofidul Islam Lane, Calcutta, such sale to be held by Mackenzie Lyall and Co. Under the consent decree the decree holders were permitted to bid; but they never did so. Upon being asked why he did not. Dharam Chand explained that they were interested only to get back the money. They sued on the promissory note but kept the mortgage alive. 16. There cannot be any doubt that Balen was behind all these, otherwise it is difficult to explain how Aminuddin came to be present at his office at the crucial time when the terms of the consent decree were agreed upon and why in a money suit he readily agreed that the decretal amount be paid from the sale proceeds of his properties to be sold by Mackenzie Lyall and Co. Aminuddin was not represented by any lawyer-Balen acted for the decree-holders in the matter of passing of the consent decree. Dharam Chand in his evidence suggested that Balen was the attorney for Aminuddin also. Dharam Chand denied that Aminuddin at all helped them but it appears that Aminuddin acted on the advice of the decree-holder and their solicitors before and after the consent decree and left the entire matter with them. It is curious that Aminuddin even though he did not defend this suit was present in Court during the hearing but he was not examined by the defendants Nos. 1 and 2. It is curious that Aminuddin even though he did not defend this suit was present in Court during the hearing but he was not examined by the defendants Nos. 1 and 2. If the defendant's case was that Aminuddin did not assign his right, title and interest in 1949 it was for them to examine him. Dharam Chand in his evidence said that immediately upon being told by Balen about the letter of 3 January 1959 from S. N. Chatterjee, Solicitor, he asked him how it was being alleged that there was an assignment dated 15 February 1949 to which Balen had said "if there was such bogus documents what could he do? If anybody registered any document that would not alter the position -Q. 382". In answer to question 383 he again said, "he (Balen) only told me that if there was such a bogus document what could he have done ? He had made his searches and he did not find any. "The witness was fully satisfied with what Balen had told him. He was not at all perturbed after he was assured by Balen that upon searches he did not get any information of any such document and if it was a bogus document, he need not worry. Now the question is, could any one call a document bogus without reading it? I think not. The witness also admitted that without reading he could not call a document bogus. Next the witness admitted that he had asked Balen after receipt of the letter of 3 January 1958 to make further searches but thereafter he had no further discussion with him as to whether in fact Balen had made further searches or not. This undoubtedly is a very unusual conduct on the part of Dharamchand. Anybody in his place should try and find out as to whether there was a prior Deed of assignment. But this did not obviously perturb the witness. It is further curious that the moment the witness came to know of Hafiz Rasul Buksh from the letter of 3 January 1958 he ran to a Dr. Rouf for information about him. He explained in question 364 that as nobody would give information and since Dr. Rouf was a person of the same community he ran to him to get information as to who Hafiz was and what was his position. Rouf for information about him. He explained in question 364 that as nobody would give information and since Dr. Rouf was a person of the same community he ran to him to get information as to who Hafiz was and what was his position. This evidence is obviously false because Dr. Rouf was the first person he ran to, for information. He admitted that he knew Aminuddin well at the time but he did not go to him for such information as he had suspicion as to whether Aminuddin would give him the correct information or not and that is why he did not go to him. But strange enough that even when he did not find Hafiz Rasul Buksh or any man of that name he did not try to find out Aminuddin Ahmed and challenge him that he had suppressed the Deed of Assignment. The witness then explained that as Hafiz Rasul Buksh could not be found he came to the conclusion that the Deed of Assignment must be bogus. In my opinion these explanations are worse than useless and not at all acceptable by me. I fail to see any reason why he should at all look for Hafiz Rasul Buksh. How could Hafiz help him? If he had no previous knowledge of the Deed of assignment all that he need have done in the circumstances was to search the records of the Registration Offices again and see if there was any truth in the statement contained in S. M. Chatterjee's letter dated 3 January 1958 and whether in fact such a Deed of assignment in favour of Hafiz Rasul Buksh existed. But he did not even bother to find out from the solicitor Balen as to whether he had, according to his instructions, actually caused fresh searches to be made and whether any such Deed of assignment was in fact registered on 15 February 1949 as stated by the plaintiff's Solicitor. He was not at all perturbed and was quite satisfied with Balen's explanation. In my opinion this unusual conduct of Dharamchand can only be reconciled if he had previous knowledge of the Deed of assignment as I have observed before. S. M. Mukharje and Co. 's letter dated 8 January 1958 (included in Ex. DD) clearly shows that the writer had knowledge of the Deed of assignment otherwise how could he write "please ask Mr. S. M. Mukharje and Co. 's letter dated 8 January 1958 (included in Ex. DD) clearly shows that the writer had knowledge of the Deed of assignment otherwise how could he write "please ask Mr. Chatterjee to produce the said Deed and it will be proved to the hilt that the said Deed does not affect the property in any way whatsoever. " This statement along with Balen's previous statement to Dharam Chand that the Deed was bogus immediately after receipt of the letter of 3, January 1958 from S.M. Chatterjee, clearly establishes that Balen had previous knowledge of the Deed of assignment in question. Without knowing the contents of the Deed it was not possible for Balen to say so. It may be noted that up to this point of time S. M. Chatterjee had not produced the certified copy of the Deed. I have no doubt that Dharam Chand and his solicitor Balen deliberately suppressed this Deed of assignment from the Notifications and conditions of sale dated l7 August 1957 and 5 December 1957 which were prepared by them, as they suppressed the encumbrance dated 26 April 1957 later disclosed in the Notification dated 9 January 1959. No explanation was given by Dharam Chand for such nondisclosure. 17. The next point to be considered is whether the defendants Nos. 1 and 2 had constructive notice of the Dead of assignment dated 15 February 1949 as mortgagees acquiring interest in the property in 1956. Section 3 and Explanation I, II, III of the Transfer of Property Act as it now stands is conclusive on this point and I do not think I am called upon to discuss old decisions on the subject. Under the present law registration amounts to implied notice to the persons subsequently acquiring any interest in the property. Therefore. I hold that the defendants Nos. 1 and 2 as mortgagees of the same properties in 1956 had implied notice of the prior registered Deed of assignment dated 15 February 1949. Dharam Chand has admitted that Balen made searches in the Registration Offices and acted on his behalf and upon his instructions and as such he was responsible for Balen's acts and omissions. I do not believe that Balen did not find the Deed of Assignment dated 15 February 1940 upon searches. Dharam Chand has admitted that Balen made searches in the Registration Offices and acted on his behalf and upon his instructions and as such he was responsible for Balen's acts and omissions. I do not believe that Balen did not find the Deed of Assignment dated 15 February 1940 upon searches. There is no force or substance in the contention of the defendants' Counsel that there was a slight difference in the spelling of the word "fulbagan" in the records of the Registration offices it could not be traced and I do not attach any importance to such contention which I reject. 18. It is well-settled that if an instrument is registered in the manner prescribed by the Registration Act (as was done here) a party cannot be heard to say that he searched the Register without finding it for he must take the consequences of his want of diligence. In 17 C. W. N, at p. 224 (6) it was held that "if a search is made it may surely be. . . . . . that it was properly and effectually made and if so it could have only one result. Notice of a book is notice of its contents. There is therefore a presumption of notice and it follows necessarily that the presumption cannot be rebutted by the mere statement that though a search was made it was unsuccessful. A presumption so easily rebutted would cease to have any force at all and might be altogether disregarded. " Search made by Agent makes no difference if the search was made for the principal. In the present case Dharam Chand has admitted responsibility and there is no allegation of fraudulent concealment against Balen. On the contrary absolute faith and confidence in Balen had been asserted. In my opinion the circumstances speak of notice to both the decree-holders and their solicitors not to speak of Aminuddin who must have known of his own assignment. Thus from the facts as I have outlined them it is clearly manifest that the decree-holders and their solicitor did not act in good faith but deliberately suppressed the Deed of Assignment dated 15 February 1949 from the; Notification and conditions of sale dated 17 August 1957 and 5 December 1957. Thus from the facts as I have outlined them it is clearly manifest that the decree-holders and their solicitor did not act in good faith but deliberately suppressed the Deed of Assignment dated 15 February 1949 from the; Notification and conditions of sale dated 17 August 1957 and 5 December 1957. This Deed of Assignment no doubt is a material defect in the title which was clearly within the knowledge of the decree-holders and their solicitors and prima facie proves that there was no saleable interest in the properties sold. 19. Next the question arises as to whether there was any fraud or fraudulent suppression on the part of Mackenzie Lyall and Co. (the defendant No. 4. The consent decree in Suit No. 3032 of 1956 provided that: (1) Mackenzie Lyall and Co. were to sell the properties in question by public auction on proper advertisement to be issued by them in different newspapers. (2) Mackenzie Lyall and Co. were to pay the decretal amount to the decree-holders and retain all costs incurred for sale and their commission out of the sale proceeds and thereafter pay the balance to the judgment-debtor. (3) They were authorised to execute the conveyance on behalf of the judgment-debtor if he refused or neglected to do so. (4) For the purpose of the auction they may divide the properties in different lots. (5) They were to fix a reserve price and make valuation of the properties for the purpose of auction. 20. From the Notification and Conditions of Sale dated 5 December, 1957 it appears from clause 2 thereof that the Auctioneers had fixed a reserved price of the properties. From the affidavit of Mr. Middleton dated 22 April, 1958 (part of Ex. B and Ex. DD) paragraph 3 (i) it appears that Mackenzie Lyall and Co. caused the properties in question to be valued and the report and valuation were duly submitted by them to the decree-holders solicitors. It further appears that Mackenzie Lyall and Co. wrote several letters to S. N. Mukherjee, solicitors for the decree-holders regarding the sale of these properties which are part of Ex. B and Ex. DD. By their letter dated 20 November, 1957 they wrote: "the conditions of sale as well as the draft Notification will be drawn up by you and submitted to us as soon as possible before the date of the Auction. B and Ex. DD. By their letter dated 20 November, 1957 they wrote: "the conditions of sale as well as the draft Notification will be drawn up by you and submitted to us as soon as possible before the date of the Auction. " By their letter dated 28 November, 1957 they wrote: "please also be good enough to send the proof copies of the Notification of Sale and Conditions of Sale for our approval". By letter dated 4 December, 1957 they wrote: "in this connection we refer to our representative Sri B. K. Mukherji's call at your office in regard to the Notification and Conditions of Sale which we are pleased to note you have approved. " It is admitted also that Mackenzie Lyall and Co caused advertisement to be issued in different newspaper and the Calcutta Gazette. Next from the agreement of sale it clearly appears that Mackenzie Lyall and Co. put their unqualified signature to it and thereby agreed to sell and the auction-purchaser agreed to purchase the properties in terms of the Conditions of Sale. The agreement does not show when construed as a whole that Mackenzie Lyall and Co. contracted as agent only and did not take any personal liability. In Higgins v. Senior (7) (1841) 8 M. and W. 834 it was held that an agent who signs a contract in his own name without qualification, though known to be an agent, is understood to contract personally, unless a contrary intention plainly appear from the body of the instrument. In this case I do not find any such contrary intention appearing in the agreement for sale. In view of the above facts and circumstances and particularly in view of the fact that the initial correspondence which passed between the decree-holders solicitor and Mackenzie Lyall and Co. were not disclosed, although admitted by Mr. Middleton that there were such correspondence, I am unable to accept Mr. Middleton's evidence that he did not know the contents of the consent decree dated 7 December, 1956 as it was not shown to him. I disbelieve this evidence of Mr. Middleton and hold that he well knew about the consent decree as his conduct in the matter of sale fully establishes. The letters disclosed and referred to by me hereinbefore, unmistakably establishes that Mackenzie Lyall and Co. I disbelieve this evidence of Mr. Middleton and hold that he well knew about the consent decree as his conduct in the matter of sale fully establishes. The letters disclosed and referred to by me hereinbefore, unmistakably establishes that Mackenzie Lyall and Co. acted in accordance with the terms of the consent decree and sold the properties on their own account as directed by the decree and thus I cannot hold that they acted merely as agent of the vendor as contended by their counsel. 21. As seller therefore Mackenzie Lyall and Co. had certain duties, to perform as enjoined by the Transfer of Property Act. Under section 3 of the Act they must be deemed to have notice of the defect in title, when but for wilful abstention from an inquiry or search they ought to have made or gross negligence, they would have known it. Section 55 (1) (a) of the Act caste upon the seller the duty of disclosing to the buyer all material defects in the property or in the seller title thereto of which the seller is, and the buyer is not, aware and which the buyer could not with ordinary care discover. The last paragraph in section 55 provides "an omission to make' such disclosure as are mentioned in the section paragraph (1) clause (a) and paragraph (5) clause (a) is fraudulent. " 22. It is contended on behalf of the defendants Nos. 1 and 2 that in the instant case the auction purchaser could with ordinary care discover as to whether there were any material defects in the property by causing searches to be made on that behalf. I cannot accept this contention. Because it is well settled that whether the sale is made by auction or by private treaty the purchaser is under no obligation to make inquiry as to defects in the vendor's title but it is the duty of the vendor to disclose all that is necessary for his own protection. The vendor's disclosure should be frank and full; he ought to state that which, if it is not stated, makes what he does state ambiguous and misleading. If he desired to preclude a purchaser from objecting to a defect he must do so in plain terms stating clearly the exact nature of the defect to which the purchaser is not to make objection. If he desired to preclude a purchaser from objecting to a defect he must do so in plain terms stating clearly the exact nature of the defect to which the purchaser is not to make objection. (See (8) (1888) 20 Q. B. D. at p. 528; (9) (1882) 24 Ch. D11; (10) (1865) Lit. 1 Eq. 68. In this case however I do not find any such terms in the agreement. On the other hand the Notification of Sale dated 5 December, 1957 represented the properties as "valuable property" which. I find is not a true statement. These Notification and Conditions of Sale were prepared by Balen of S. N. Mukherjee and Co. solicitors, at the direction of Mackenzie Lyall and Co. by their letter dated 20 November, 1957 and later approved by Mackenzie Lyall and Co. and thereafter published by them in different newspapers and the Calcutta Gazette. No doubt this misrepresentation namely the description of the properties as "valuable property" in the Notification of Sale induced the auction purchasers who had no knowledge of the prior assignment, to enter into the agreement with Mackenzie Lyall and Co. who were selling the properties. There can be no doubt that the defendants Nos. 1 and 2 and their solicitor Balen suppressed the prior Assignment from the Notification and Conditions of Sale with intent to deceive and induce the auction purchasers to enter into the agreement of sale with full knowledge and belief that the representations were not true and as such, in my opinion, fraudulent within the meaning of sections 17 and 18 of the Contract Act. But the question is, could Mackenzire Lyall and Co. who had constructive notice under section 3 of the Transfer of Property Act be also held party to this fraudulent misrepresentation? It is contended by Mr. R. Roy, counsel for Mackenzie Lyall and Co., that they throughout acted on the instruction of Messrs. S. N. Mukherjee and Co. and had no knowledge about the prior Assignment dated 15 February, 1949, and as such they could not be party to any fraudulent misrepresentation. Mr. Middleton's evidence is also to the same effect. But the fact remains and is also admitted by Mr. Middleton that Mackenzie Lyall and Co. published the Notification and Conditions of Sale. and had no knowledge about the prior Assignment dated 15 February, 1949, and as such they could not be party to any fraudulent misrepresentation. Mr. Middleton's evidence is also to the same effect. But the fact remains and is also admitted by Mr. Middleton that Mackenzie Lyall and Co. published the Notification and Conditions of Sale. No doubt the Notifications were issued by Mackenzie Lyall with the representation that the properties were "valuable Properties", which is not a true statement 23. But it was still urged by Mr. Roy that Mackenzie Lyall and Co. had in fact no knowledge of this defect in the title of the properties. I have already found that Mackenzie Lyall had constructive notice but I shall assume that they had no factual knowledge of the defect in title? But would that help them at all? I think not because it has been held that misrepresentation which brings about a contract even though innocent is not a ground for setting a contract aside and this rule applies to contracts of all description. 24. The case of Redgrave v. Hurd (11) (1881) 20 Ch. D. 1, was the first in which this rule was applied. There the law was stated thus: "according to the decision of Courts of Equity it is not necessary in order to set aside a contract obtained by material false representation to prove that the party who obtained it knew at the time the representation was made that it was false. " In Newsbinging v. Adam, (12) 34 Ch. D. 582 the rule thus laid down was adopted as of general application. In Derry v. Peak (13) 14 A. C. 347 this principle is clearly stated by Lord Bramwell speaking of the various rights of one who has been injured by the untruth of statements inducing a contract; "to this may now be added the equitable rule that a material misrepresentation though not fraudulent may give a right to avoid or rescind a contract where capable of such recession. " In Mackenzie v. Royal Bank of Canada (14) 1934 A. C. at p. 475, Lord Atkin delivering the opinion of the Privy Council has stated that the principle now applies to all contracts. 25. " In Mackenzie v. Royal Bank of Canada (14) 1934 A. C. at p. 475, Lord Atkin delivering the opinion of the Privy Council has stated that the principle now applies to all contracts. 25. This general rule is well settled; innocent representation if it furnishes a material inducement is a ground for resisting an action for breach of contract or for specific performance and also for asking to have it set aside; this relief is of general application (See Anson on Contract, 19th Edition, page 175. 26. Therefore a contract may be rescinded whether mis-representation be fraudulent or innocent; the only difference being that the former gives rise to an action for damages for deceit and is a tort, whereas the latter does not but is only a ground under a certain condition for invalidating a contract. This is one aspect of the matter but the question still remains to be answered as to whether Mackenzie Lyall and Co. was guilty of fraud. Prior to the decision of Derry v. Peak, fraud in common law was somewhat indefinite and vague term, tending often to incline to the equitable notice of fraud according to which an actual intention to defraud need not be proved. At common law fraud would invalidate a contract but innocent mis-representation would not unless the matter of mis-representation was a condition of the contract so that the difference between the thing contracted for and as represented to be and as it was in fact, amounted to an essential difference in kind. 27. The common law of fraud was settled by the decision in Derry v Peak; the test is the absence of a genuine belief in the truth of the re presentation which is made. According to the rule laid down in this case fraud is proved if it is shown that a false representation has been made knowingly or without belief in its truth or recklessly-careless whether it be true or false. 28. Applying this principle, in my opinion, the representations made by Mackenzie Lyall and Co. According to the rule laid down in this case fraud is proved if it is shown that a false representation has been made knowingly or without belief in its truth or recklessly-careless whether it be true or false. 28. Applying this principle, in my opinion, the representations made by Mackenzie Lyall and Co. in the Notification of Sale that the properties were "valuable Properties" must be held to be fraudulent as they were in any event made recklessly-careless whether it be true or false; when as sellers they were duty bound to find out as to whether there were any material defects in the title to the property so that they could disclose to the buyer Further under the law they shall be deemed to contract with the buyer that the interest which they profess to transfer to the buyer subsists and that they have power to transfer for the same. (Section 55) (2) Transfer of Property Act. If they do not make searches regarding the title or do it through somebody else who fraudulently suppressed the material defects in title or if they neglect accessible means of information their statement made under such circumstances is not made in an honest belief of its truth. Any representation made by them in these circumstances would be without real belief in its truth or recklessly-careless whether it be true or false and thus fraudulent according to the rule laid down in Derry v. Peak. A contract induced by fraud is not void but voidable only at the option of the party defrauded. So long it is not avoided it remains valid. The party defrauded must elect whether he will be bound or not by the contract. In this case the plaintiffs duly avoided the contract and demanded back the deposit. Section 19 of the Indian Contract Act provides "when a consent to an agreement is caused by coercion, fraud or mis-representation the agreement is a contract voidable at the option of the party whose consent was so caused. Exception-If such consent was caused by mis-representation or by silence, fraudulent within the meaning of Section 17 the contract nevertheless, is not voidable if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. " 29. Exception-If such consent was caused by mis-representation or by silence, fraudulent within the meaning of Section 17 the contract nevertheless, is not voidable if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. " 29. It is contended that in this case the plaintiff had means to discover the truth with ordinary diligence by making searches in the Registration offices before he purchased the property and thus the contract is not rendered voidable under this Section. 30. This question is easily disposed of by merely observing as I have observed hereinbefore that whether the sale is made by auction or by private treaty the purchaser is under no obligation to make enquiry as to defects in the vendor's title but it is the duty of the vendor to disclose all that is necessary for his own protection. Further in my opinion a bidder in an auction for sale of land has neither the opportunity nor the means of discovering the truth of the vendor's title nor has any duty or obligation to do so. In as much as a vendor's title to land is exclusively in his own knowledge he is bound to disclose all defects in its title to the purchaser and if the purchaser subsequently becomes aware of a defect of title which the vendor did not disclose to him before entering into the contract he may rescind the contract or resist its specific performance on that ground. The vendor is only relieved of his statutory liability if there be a contract to the contrary. It was next contended by Mr. M. N. Banerjee that as the Conditions of Sale provided in Clause (11) that the title to the property shall commence with decree dated 11 December, 1954 in T. S. No. 132 of 1950 of the 6th Court of the Sub-Judge, Alipore, 24-Parganas, the plaintiff is precluded from raising these objections. This is a contract to the contrary. The plaintiffs knew about the properties and bought them with their eyes open and must take the consequences. I am unable to accept this contention because I find firstly that the Notification of sale profess to sell the right, title and interest of Aminuddin Ahmed which is represented as "valuable Property. "Therefore, the interest of the seller is not only represented here as valuable but subsisting. I am unable to accept this contention because I find firstly that the Notification of sale profess to sell the right, title and interest of Aminuddin Ahmed which is represented as "valuable Property. "Therefore, the interest of the seller is not only represented here as valuable but subsisting. Secondly, I do not find anywhere in the Notification and Conditions of Sale any expression in clear and unambiguous language that the vendor did not mean to guarantee that he had title to the properties or entitled to convey the same. It is not stated in the Conditions of Sale that the seller had no interest. True Clause (11) of the Conditions is there but from the facts and circumstances disclosed in the evidence, I am inclined to the view that the decree-holders and their Solicitor had full knowledge of the Deed of Assignment dated 15 February, 1949 and that is why Clause (11) was included in the Conditions which in my opinion cannot be treated as "contract to the contrary" within the meaning of Section 55 but must be fraudulent in its purpose. By such subterfuge a sale cannot be forced up on the purchaser. In Nottingham v. Butler, (15) 16 Q. B. D. 778 C. A. Lord Esher M. R. at p. 786 held: "It is impossible for a vendor, knowing of a defect in his title either by himself or his agent to put forward conditions of sale which are to force upon a purchaser a bad title of which he knew but which he did not disclose. " 31. Special stipulations must be expressed in clear and unambiguous language and must neither state nor suggest what is to the knowledge of the vendor incorrect. A condition is misleading and therefore not binding, if it requires the purchaser to assume that which the vendor knows to be false or if it was used by a vendor who knows that he has a bad title order to palm such title off the purchaser. In case of sale of land the utmost good faith must be shown. (Hals. 29, 2nd Ed. p. 276/277. 32. Our Statute law is also clear on this subject. In case of sale of land the utmost good faith must be shown. (Hals. 29, 2nd Ed. p. 276/277. 32. Our Statute law is also clear on this subject. Section 55 (2) of the Transfer of Property Act provides "the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer for the same. " the provision of the sub-section is no doubt subject to the contract to the contrary as the opening words of the section indicate. The expression "shall be deemed to contract" in this Clause must be deemed to be incorporated in every contract for sale and thus the rule of caveat emptor is rendered obsolete and inapplicable (Basamddi v. Enajaddi, (16) 25 Cal. 298 at 300. In other words this presumption as to the title of the vendor is absolute and in the absence of a contract to the contrary is irrebuttable. It is not necessary to incorporate an express covenant of title in the contract for sale, or in the Deed of Sale itself (to both of which the sub-section applies) since under this sub-section such a covenant of title is implied in every sale of immovable property as denned in section 54 of the Act and the onus lies on the vendor to prove a contract displacing that presumption. It is well-settled that the effect of a covenant for title implied in this Clause can only be got rid of by the vendor indicating by clear and unambiguous expression that he does not mean to guarantee that he has got title to the property and is entitled to convey the same. The vendor cannot get rid of this liability under this Clause by reason of the fact that the purchaser had knowledge of the defect of his title. Under this Clause there is a statutory guarantee for good title unless the same is excluded by the contract of parties in clear and unambiguous terms and the question of knowledge of the purchaser does not affect his right to be indemnified under the Indian Statute Law. (17 Mad. 887 at 889 and also (18) 38 Mad. 1171 at 17775. In 25 Cal. (17 Mad. 887 at 889 and also (18) 38 Mad. 1171 at 17775. In 25 Cal. 298 it was held that unless the purchaser took the conveyance with all defects in the vendor's title the mere fact that he knew or was expected to know all about the property conveyed to him would not disentitle him to repudiate the contract end get refund of the purchase money. Here of course, the purchaser had no knowledge of the defects in title which was suppressed in the Notification and Conditions of Sale. 33. In the light of what is stated before I hold that fraud and fraudulent suppression of material defects in title to the properties in question have been fully established against the defendants Nos. 1, 2 and 4. It has further been established to my satisfaction that the defendants Nos. 1 and 2 had full knowledge of the Deed of Assignment dated 15 February, 1949 prior to 24 April 1958 and the defendant No. 4 had constructive notice of it and thus the sale held on 5 December 1957 must be held to be void and has been duly avoided and is liable to be set aside and further the agreement for sale must be declared to be invalid and be cancelled and the plaintiffs are entitled to claim refund of the deposit. So I answer: issues Nos. 3 and 4-in the affirmative. The sale is liable to be set aside. Issue No. 5 (a)-in the affirmative. Issue No. 6-in the negative. Defendant No. 4 did not wrongfully refund the deposit to the plaintiffs but deposited in Court pursuant to an order. 34. In the present case however, I do not think it is at all necessary for the plaintiff to prove fraud. Here the plaintiffs had merely entered into an agreement for sale with the defendant No. 4, who were selling the properties in terms of the consent decree. The agreement for sale clearly shows that Mackenzie Lyall and Co. and the auction purchasers were the only parties to the agreement. An agreement for sale does not of itself create any interest or charge on such properties under section 54 of the Transfer of Property Act. No conveyance was executed. The agreement for sale clearly shows that Mackenzie Lyall and Co. and the auction purchasers were the only parties to the agreement. An agreement for sale does not of itself create any interest or charge on such properties under section 54 of the Transfer of Property Act. No conveyance was executed. The law is well settled that where the purchaser discovers defects in title to the property before conveyance he can either rescind the contract or successfully oppose a suit for specification (Reeve v. Berridge (18) (1888) 20 Q.B.D. 523) ; but if the purchaser discovers material defects after the conveyance he must Mae out a case of fraud in order to set aside a sale. (1925) I. L. R. 52 Cal. 914 at 925 (19) 35. In Carlish v. Salt (20) (1906) 1 Ch. 335 Joyce, J. ordered the return of the purchasers' deposit stating that it was not necessary for him to decide that there was on the part of the defendants any fraud even in the sense in which that word is sometimes used in Courts Equity, but the defendants concealed for they did not divulge a fact known only to themselves which were material to the value of the property and constituted a latent defect not in the quality but in the title to the property. 36. Next it was urged on behalf of the defendant No. 4 that they being merely an agent of the vendor could not be sued by the plaintiffs. As agent they had no personal liability Sections 226 and 230 of the Indian Contract Act were relied on. It is true ordinarily an agent is not bound by the contract entered into by him on behalf of the principal except the cases specifically mentioned in section 230 of the Act; but it is to be noticed that the opening words of the section are "in the absence of any contract to that effect". But if the agent enters into a contract personally the position is completely altered. It is well settled that prima facie a party is personally liable on a contract if he put his unqualified signature to it. To exonerate the agent from liability the contract must show, when construed as a whole that he contracted as agent only and did not undertake any personal liability. It is well settled that prima facie a party is personally liable on a contract if he put his unqualified signature to it. To exonerate the agent from liability the contract must show, when construed as a whole that he contracted as agent only and did not undertake any personal liability. No parol evidence of intention is admissible to exonerate him from liability contrary to the terms of the contract. Whether an agent is to be taken to have contracted personally or merely on behalf of the principal depends on what appears to have been the intention of the parties to be deduced from the nature and terms of the particular contract and the surrounding circumstances. If the contract is in writing the presumed intention is that which appears from the terms of the written agreement as a whole. Higgins v. Senior (7) (1841) 8 M and W. 834 held-"an agent who signs a contract in his own name without qualification, though known to be an agent, is understood to contract personally, unless a contrary intention plainly appears from the body of the instrument. ' 37. In this case the terms of the agreement clearly states that "the auctioneer agrees to sell and the auction purchaser agree to purchase. . . . . . in farms of the conditions of sale annexed hereto. " The agreement is signed by Mackenzie Lyall and Co. without any qualification. From this aspect also the defendant No. 4 must be held personally bound by the agreement. 38. Here however this question does not arise, because the defendant No. 4 was directed by the consent decree to sell the properties by public auction, same as Receivers or Commissioners of Partition are often directed by court. Here confusion arises as the defendant No. 4 is by repute Auctioneers. Mr. Middleton the sole proprietor of Mackenzie Lyall and Co. in paragraph 3 (i) of his affidavit dated 22 April 1958 (Ex. DD in this suit) admits that Mackenzie Lyall and Co. were appointed to sell by the public auction the right, title and interest of Aminuddin Ahmed in the premises in question. He has further admitted that before sale he caused the properties to be properly valued. In his affidavit Mr. DD in this suit) admits that Mackenzie Lyall and Co. were appointed to sell by the public auction the right, title and interest of Aminuddin Ahmed in the premises in question. He has further admitted that before sale he caused the properties to be properly valued. In his affidavit Mr. Middleton has stated that thereafter upon proper advertisement (which were admittedly published by the defendant No. 4) the properties were eventually sold on 5 December 1957 to the plaintiffs in this suit for Rs. 17,000/ -. It is admitted that a deposit of Rs. 4250/- was also made by the plaintiffs to them. It further appears from their letters of 20th and 28th November 1957 (Part of Ex. B) that Mackenzie Lyall and Co. called upon S. N. Mukherjee and Co. to submit to them the conditions of Sale and draft Notification for their approval. From these facts it is clearly manifest that the defendant No. 4 did not enter into the agreement for sale merely as agent of the vendor but were acting personally in the matter in accordance with terms of the consent decree dated 7 December 1956 in Suit No. 3032 of 1956. The agreement for sale further does not show when construed as a whole that the defendant No. 4 contracted as agent only and did not take any personal liability. From the terms of the agreement and from the surrounding circumstances it appears to me that the defendant No. 4 intended to enter in to the agreement for sale personally in terms of the consent decree and not merely as an agent of the vendor. The agreement was signed without qualification and no contrary intention is to be found in the body of the agreement. In these circumstances, I am inclined to hold that in as much as a material defect in the title to the property was discovered by the plaintiffs before conveyance they were entitled to repudiate the contract and claim refund of the deposit as have been done in this case. In these circumstances, I am inclined to hold that in as much as a material defect in the title to the property was discovered by the plaintiffs before conveyance they were entitled to repudiate the contract and claim refund of the deposit as have been done in this case. I further rely on the decision of Division Bench in Chaitanya v. Ranjit (21) 67 C. L. J. 16 at 29, also reported in A.I.R. 1938 Calcutta 263 in holding that this suit by the auction purchaser is maintainable and the plaintiffs are entitled to recover the deposit paid by them as money had and received as on a total failure of consideration. 39. Lastly, even if I am wrong in my finding that Mackenzie Lyall and Co. was fixed with notice of the defect in title under section 3 of the Transfer of Property Act, in my opinion the agreement will be void under section 20 of the Contract Act on the ground of mutual mistake of Mackenzie Lyall and Co. and the auction purchasers as to a matter of fact essential to the agreement. [see 27 C.W.N. 639 (6) ]. 40. The only question which now remains to be considered as to whether the sale was in execution of the decree. Mr. M. N. Banerjee contended that the sale was in execution of a decree pursuant to an order of court and therefore the provisions of the Code of Civil Procedure would apply. The plaintiffs for the same relief had applied to this Court in suit No. 3032 of 1956 under Or. 21, rule 91 of the Code of Civil Procedure and the application was allowed to be disposed of without any order. Thus this suit is barred by Res Judicata or principles analogous thereto. I am unable to accept this contention because this is not a sale in execution of a decree nor is it a sale by court. This is a sale in all respects by a private treaty later incorporated in a consent decree. Provisions of Civil Procedure Code do not apply. If Civil Procedure Code is attracted certain elaborate rules are laid down therefor, none of which have been followed here. On the contrary the decree-holders rightly proceeded under the rules of the Original Side throughout, which rules alone are applicable to this case. Provisions of Civil Procedure Code do not apply. If Civil Procedure Code is attracted certain elaborate rules are laid down therefor, none of which have been followed here. On the contrary the decree-holders rightly proceeded under the rules of the Original Side throughout, which rules alone are applicable to this case. The auction-purchasers also applied under the rules of the original Side when they applied on 10 July 1958. That application was not made under Or. 21, r. 91 of the Code but under the Original Side rules. The application was not withdrawn but no orders were made thereon. There was no adjudication on the issues raised in the application. After the consent decree this Court was no longer in seisin of the matter. There was no application in execution to this Court to attract appropriate procedure in execution of the decree. Therefore, Or. 21, r. 91 is not applicable. For these reasons I answer Issue No. 8 in the negative. Issue No. 9-In the result the plaintiffs succeed. There will be a declaration against defendants Nos. 1, 2 and 4 that the auction sale held on 5 December 1957 is void, illegal and inoperative and is set aside. There will be a declaration that the alleged agreement for sale dated 5 December 1957 entered into and executed by and between the plaintiffs and the defendant No. 4 is invalid, inoperative and not binding and is cancelled. Declared that the Order dated 3 July 1958 is not binding on the plaintiffs. There will be a decree for Rs. 4250/-against defendants Nos. 1, 2 and 1 together with interest thereon at 6 percent, per annum from 3 January 1958 till the date of the decree. Interest on the decretal amount of Rs. 4250/- at 6 per cent. and costs. The defendant No. 4 is directed to deliver up the agreement for sale dated 5 December 1957 to the plaintiffs after cancellation thereof.