Vol. 12 · pages 331–335

310 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (5) Incumbrance— (i) Incumbrance means—a claim, lien, or liability attached to the property. (ii) The seller’s duty is to discharge all incumbrances. It is immaterial that the buyer was aware of the incumbrances when he contracted to buy. (iii) The sale is not subject to incumbrances, unless there is an express provision to that effect. (iv) If the incumbrance is a common charge on the property sold and other properties of the seller, the buyer may insist on its being discharged out of the other property. (6) This liability imposed upon the seller is collateral to the contract and may be enforced even after conveyance. Seller’s Liabilities II. AFTER CONVEYANCE 1. Section 55(1)(b) —To give possession 1. It is the duty of the seller to give possession after conveyance and not to leave the buyer to get possession for himself. 2. This liability may be enforced by a suit for Specific Performance. 3. Time for giving possession— (i) The Section docs not say when the seller should give possession. (ii) Reference to Section 55 (4) (a) shows that possession be given when ownership passes to the buyer. This would be at the time of the execution of the sale-deed— 6 Lah. 308. (iii) The seller cannot refuse possession because price has not been paid unless there was intention to the contrary. (iv) The buyer’s right to possession and the seller’s right to unpaid price may be enforced in the same suit. 4. Nature of Possession— (i) Possession docs not mean actual occupation. (ii) Physical possession in the case of tangible and symbolical possession in the case of intangible property is enough. (iii) Symbolical possession is enough in the case of property which is in the possession of tenants or mortgagees.

311LAW OF SPECIFIC RELIEF 2. Section 55 (2)—To assure that the interest subsists. 1. There are two views as to whether this liability of the seller is one which arises before conveyance or after conveyance. (i) Calcutta view. This clause contemplates a completed contract and corresponds to covenant for title in an English conveyance. 57 Cal. 1189. (ii) Madras view. This clause contemplates cases, where the transaction has not progressed beyond the stage of contract. 40 Mad. 338(350): 38 Mad. 1171. (iii) Lahore view. Follows Madras. 6 Lah. 308. (iv) Bombay view. It pertains to liability after conveyance 18 Bom. S. R. 292: 52 Bom. 883: 31 Bom. LR. 658. (a) The provisions of Section 55 (1) enable the buyer before completion, to ascertain if the title offered is free from reasonable doubt. Once he has accepted the conveyance and the sale is completed, he has no remedy on the contract except for fraud. (b) The covenant for title implied by Section 55 (2) gives the buyer a further remedy in case of defects discovered after conveyance. (v) Another view which probably is the correct view. (a) In the matter of Title, the liability of the seller is twofold. (i) He must pass to the buyer a title free from reasonable doubt. (ii) He must pass to the buyer a title which he professes to pass and nothing less. He must make good his representation. Under (i) he must prove that he has acquired his title in any one of the recognized ways: such as prescription, possession, inheritance, purchase, etc. Under (ii) if he professes to transfer a full proprietory interest, then interest transferred must be full proprietory interest and not merely occupancy interest: Sale of free from incumbrances land which is subject to incumbrance : Sale of non-transferable land as transferable. (b) Section 55 (1) relates to liability for a title free from reasonable doubt: Section 55 (2) relates to liability for passing title which he professed to pass. 2. Section 55 (2) relates to misrepresentation or misdescription as to title. A distinction must be made between misdescription of title and misdescription of property. (i) Misdescription of title is a breach of the covenant for title under Section 55 (2) and gives right to damages.

312 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (ii) Covenant for title does, not extend to misdescription of property i.e. as to the extent of the land sold. (iii) A covenant for title is not a covenant that the land purported to be conveyed is of the extent stated in the sale-deed. It is merely a contract with the purchaser of the validity of the sellers’ title. Consequently if the purchaser finds a deficiency in area his, suit must be based not on the covenant for title, but for part failure of consideration. 3. Express covenant for title. Every conveyancer has an implied covenant for title. But parties may enter into an express covenant relating to title. The points to be noted in regard to an express covenant are: (a) If overrides and does away with the effect of all implied covenants. (b) Although an express covenant alone can govern the rights of the parties, yet an implied covenant cannot be got rid of except by clear and unambiguous expression. 4. Who can claim the benefit of the covenant: The benefit of a covenant for title can be enjoyed not only by the purchaser and his representatives, but also subsequent alienees, who claim under the purchaser, can enforce it as against the seller. 5. Under this clause the vendor is presumed to guarantee his title absolutely to the property. If he wishes to contact himself out of the covenant he must do so expressly or by necessary implication. 6. The implied covenant for title has nothing to do with the question, whether the buyer has or has not notice of the defect of title and the buyer’s knowledge of the defect does not deprive him of the right to sue for damages and can claim a return of the purchase-money if he is dispossessed by reason of a defect in title. 7. Covenant for title—what does it include. The covenants for title implied in an English conveyance, include.— (i) Right to convey, (ii) Right to quiet enjoyment, (iii) Right to hold free from incumbrances, (iv) Right to further assurance.

313LAW OF SPECIFIC RELIEF Under the covenant for further assurance, the seller is bound to do such further acts for perfecting the buyer’s title as the latter may reasonably require. Thus, if a seller has, after the sale perfected an imperfect title by the purchase of an outstanding interest, he can under this covenant, be compelled to convey it to the buyer. (2) The English covenants are more extensive as they include the covenant for quiet enjoyment, for freedom from incumbrances and for further assurance. Under Indian Law they are not included. 8. Covenant for title is a covenant for a title free from reasonable doubt. It has been held by the Privy Council that an absolute warranty of title cannot be insisted upon by the purchaser. 9 I. A. 700 (713). 9. The implied covenant for title does not apply in the case of a trustee : (i) A trustee is only deemed to covenant that he has done no act whereby the property is incumbered, or that whereby he is hindered from transferring. (ii) If a trustee conveys without disclosing his fiduciary character, he could no doubt be required to convey “as beneficial owner” so as to become subject to the usual covenants for title. 10. The implied covenant for title does not apply in the case of a guardian selling on behalf of the minor. zz