LAW OF SPECIFIC RELIEF 311
2. Section 55 (2) — To assure that the interest subsists.
- 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.
- 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.