Vol. 12 · pages 326–330

305LAW OF SPECIFIC RELIEF Uberrima fides= (most abundant faith) Contracts said to require uberrima fides are those between persons in a particular relationship, as (i) Guardian and ward. (ii) Attorney and client. (iii) Physician and patient. (iv) Confessor and penitent. Complete disclosure necessary. zz

306 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Liabilities of the Parties A. Liabilities of the Seller I. BEFORE CONVEYANCE 1. SECTION 55 (1) (A)—To DISCLOSE MATERIAL DEFECTS. (1) A contract for the sale of land is not a contract uberrimal fidei: The duty of disclosure is not absolute. The duty to disclose is an obligation to disclose latent defects. (2) A latent defect is a defect which the buyer could not with ordinary care discover for himself. There is no duty to disclose defects of which the buyer has actual or constructive notice. (3) As to patent defects of which the seller is unaware, the maxim caveat emptor applies. But a mutual mistake as to a matter of fact essential to the agreement will render the agreement void. (4) A latent defect whether of property or of title must be material. A defect to be material must be of such a nature that it might be reasonably supposed that if the buyer had been aware of it, he might not have entered into the contract at all, for he would be getting something different from what he contracted to buy. (5) Whether a defect is material or not must depend upon the circumstances of each case. When land was sold for building purposes, an underground drain was held to be a material defect, but not when a house or land were sold mainly for residence. (6) Defects may be Defects in property or Defects in tide. 2. SECTION 55 (1) (B)—P RODUCTION OF TITLE DEEDS (1) The obligation is to produce title-deeds for inspection and not for delivery. (2) The documents of title required to be produced for inspection are not only documents which are in the possession of the seller, but also includes documents which are in his power to produce. (3) There is no obligation to produce title deeds unless the buyer makes a requisition.

307LAW OF SPECIFIC RELIEF (4) The Buyer however must not omit to take inspection, otherwise he will be held to have constructive notice of matters which he would have discovered if he had investigated the title. 3. SECTION 55 (1) (c)—S ELLERS DUTY TO ANSWER QUESTIONS (i) When the documents of title are produced, the buyer examines them and if he is not satisfied makes requisitions. These requisitions are.— (i) Requisitions relating to title. (ii) Requisitions relating to Conveyance. (iii) Other enquiries. (2) Requisitions on title are objections that the documents do not show the agreed title or that the documents are not efficacious i.e. not duly attested. (3) Requisitions on matters relating to conveyance refer to such matters as the joinder or concurrence of parties to the conveyance. (4) Inquiries are for the protection of the buyer, and call attention to possible omissions of disclosure by the seller, and seek information on such points as easements, party walls and insurance. (5) The Seller is bound to answer all requisitions which are relevant to the title and which are specific. (6) The duty to answer requisitions is altogether distinct from the duty of disclosure under Section 55 (1) (a) of a defect, for, the omission of the buyer to make a requisition will not absolve the seller if he has not made a full disclosure. (7) A buyer may waive requisitions. Waiver may be express or may be implied. (8) Waiver is implied from conduct. (i) When a buyer does not press a requisition that has been made. (ii) When a buyer asks for time to pay the price. (iii) When a buyer enters into possession. (iv) When a buyer pays the whole or part of the price.

308 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 4. SECTION 55 (1) (D)—EXECUTION OF CONVEYANCE (1) The execution may be to the purchaser or to such person as the purchaser shall direct. Consequently, on a resale by the buyer before conveyance, the conveyance may be direct to the sub-purchaser. The seller may require the original buyer to be a party to the Conveyance if there is a difference of price but not otherwise. (2) It is the duty of the buyer to tender to the seller a proper draft—31 Cal. L.J. 87. (3) This duty of the buyer is subject to a contract to the contrary. (4) The execution of the conveyance and the payment of price are reciprocal duties to be performed simultaneously. They are concurrent promises. If either party sues for specific performance, he must show that he was ready and willing to perform his part. (5) Proper time for execution: — (i) The section is silent as to what is proper time. (ii) The time is usually settled by the contract of sale. (iii) If time is fixed, and an unreasonable delay occurs, the proper course is to give notice making time the essence of the contract. (iv) If time is not settled, the proper time is the date when the seller makes out his title. (6) Proper place for execution: — (i) The Section is silent. (ii) Since it is the buyer who has to tender the draft conveyance to the seller, the proper place for execution would be the Seller’s residence or his Solicitor’s office. (7) Cost of Conveyance :— (i) The Section is silent. (ii) This is usually settled by the terms of the contract. (iii) In the absence of any express term, the buyer has to pay the cost of the Stamp—Section 29 (c) Indian Stamp Act. 5. SECTION 55 (1) (E)—CARE OF PROPERTY (1) The contract of sale does not give to the buyer any interest in property. But it imposes upon the seller a personal obligation to take care of the property.

309LAW OF SPECIFIC RELIEF (2) The seller must also take care of the title deeds. The loss of title deeds depreciates the value of the property and damage done to the estate. (3) To take care means to do what a prudent owner ought to and keep the property in reasonable repair and protect it from injury by trespassers. (4) The obligation to take care is one collateral to the contract and does not merge in the conveyance. The duty to take care continues even after completion of the sale and the buyer is not responsible for any loss caused by the seller. If the seller neglects his duty, the buyer is entitled to compensation to be deducted from the purchase money; after the completion the buyer may recover damages. 6. SECTION 55 (1) (G)—M EET OUTGOINGS (1) It is the duty of the seller to pay what are called under English Law outgoings. In India they include— (i) Public Charges (ii) Rent (iii) Interest (iv) Incumbrances. (i) Public charges over (i) Government Revenue. (ii) Municipal Taxes. (iii) Payment charged upon land by Statute either expressly or impliedly by reason of their being recoverable by distress or other process against the land. (ii) Rent—The payment of rent is a question which arises when the property sold is leasehold property. The seller of the leasehold property is bound to pay rents accruing due up to the date of the sale. (iii) Interest.