JUDGMENT
1. This second appeal arises out of a suit brought by the plaintiff as purchaser of a house under a sale-deed dated the 1st August 1919. The purchase price was Rs. 1,000. The vendors, that is to say, the defendants-appellants, agreed in the first part of the sale-deed to give the plaintiff Chunni Lal a clear title, subject only to his liability to pay off a previous mortgage, for which payment a sum of Rs. 366 out of the sale price was left with the vendee. The evidence shows that subsequently the plaintiff tendered to the mortgagees a smaller sum than the Rs. 366 which was refused. The mortgagees ultimately brought a suit on their mortgage and got a decree for a much larger sum than the Rs. 366. It was at this point that the present suit was brought by the plaintiff asking alternatively that his vendors should pay up the mortgagees and save the property from sale, or that if the mortgage was up for sale they should refund to him the purchase price. The property has since been sold and it is understood that the property has only realized sufficient to satisfy the mortgage-decree.
2. The first Court construed the, sale-deed as a sale merely of the equity of redemption, and held that the vendee was liable to satisfy the mortgage, whether or no the sum, required to do so exceeded the Rs. 366 left with him for that purpose. The lower appellate Court upset this finding and held that what the appellant purchased under the sale-deed was a house free from all incumbrances, subject only to the liability of the vendee to pay off the Rs. 366 to the mortgagee Piare Lal.
3. The case would present little difficulty but for the fact that the plaintiff tendered less than the Rs. 366 left with him by the vendors. We construe the sale-deed of the 1st August 1919, in the sense that it was construed by the lower appellate Court. That Court has referred to the case of Badri Das v. Jiwan Lal [1912] 10 A.L.J. 480 where this was the view taken of a sale-deed, which we cannot distinguish from the present one. The fact that the vendee-plaintiff tendered an insufficient amount to the mortgagee, does not appear to us to be material because it is proved that even if he had tendered the full Rs. 366 left with him it would have been insufficient and must have been rejected by the mortgagees. Consequently the conduct of the vendee, although possibly open to criticism, does not appear to have any effect on the rights and liabilities of the parties to this case. The plaintiff is entitled on the basis of the warranty for a clear title, to obtain a decree against the defendant-respondents for Rs. 659-4 which includes costs incurred by the plaintiff in defending the mortgagees' suit (the mortgagees having joined him as a defendant), This has been granted by the lower appellate Court. Accordingly we dismiss this appeal with costs including fees in this Court on the higher scale.