MACDONELL C.J.—Bandara v. Punchi Banda.
1932Present: Macdonell C.J. and Dalton J.
BANDARA v. PUNCHI BANDA.
314—D. C. Kandy, 40,698.
Prescription—Action to recover purchase money—Simple money debt—Ordinance No. 22 of 1871, s. 8.
An action, to recover purchase money, which was expressed in theconveyance to have' been previously paid, is prescribed in three years.^^PPEAL from a judgment of the District Judge of Kandy.
N. E. Weerasooria, for plaintiff-appellant.
Navaratnam, for defendant-respondent.
August 4, 1932. Macdonell C.J.—
This appeal came before us on the question whether the plaintiff-appellant’s claim was prescribable within six years under section 7 ofthe Prescription Ordinance, No. 22 of 1871, or prescribable within threeyears under section 8 of the same. The facts were these: —
The plaintiff-appellant by notarial deed No. 1,739 of August 24, 1927,conveyed certain lands to the defendant-respondent for the considera-tion of Rs. 800. It is admitted that no part of this Rs. 800 was everpaid to the plaintiff-appellant, but the deed states that the grant ismade “ for and in consideration of the sum of Rs. 800 of lawful moneyof Ceylon well and truly paid to the vendor by …. the purchaser
(the receipt whereof the vendor hereby acknowledges) ”. The plaintiff-appellant filed action in the present case on January 16, 1931, that isover three years and four months after the execution of the deed No. 1,739.His action raises a precise issue:—if he is suing “upon a writtenpromise, contract, bargain, or agreement ”, then his claim is prescribed with-in six years under section 7 of the Ordinance and he has brought this actionin time; if he is suing “ upon an unwritten promise, contract, bargain,or agreement ”, then his claim is prescribed within three years undersection 8 of the Ordinance and he has not brought his action in time.
MACDONELL C.J.—Bandara v. Punchi Banda.263
One further fact has to be mentioned. In the deed No. 1,739 theplaintiff-appellant admits having received the consideration but in hisanswer to the plaint in this action, the defendant-respondent himselfadmits that no consideration ever has been paid to the plaintiff; thedeed says it has, the defendant admits candidly enough that it has not.
To succeed in this action, plaintiff-appellant must show that he issuing “ upon a written promise, contract, bargain, or agreement, ” butit would appear that he is not suing upon a document but against one.If his action be based upon a document—“ a written contract ”—i.e.,deed No. 1,739, then that document contradicts his- claim, for it containsan admission by him that he has received money that satisfies his claim.His claim is rather upon an executed consideration; he has conveyedthe land, and now seeks payment for it, and to ascertain what the amountof that payment must be, he refers to a document, a written contract,deed No. 1,739, but does not claim under it but against it. If so, hisclaim would seem to be one. “ upon an unwritten promise, contract,bargain, or agreement ” and if so, one prescribed in three years.
The authority cited to us on this matter was the case .of Thommasie v.Kanavathipillai Murugasoe1 in which the owner of the land conveyed itto a purchaser, the .conveyance reciting the consideration as previouslypaid. More than three years after the date of the conveyance the vendorsued the purchaser for the purchase money averring that it had not beenpaid. Clarence J. said “ I think the plaintiffs action is a simple actionof debt, and that it does not fall within the 7th section of the OrdinanceNo. 22 of 1871 as contended by plaintiff ”.
It will be seen that no other reasons are given in the report of thejudgment for this decision, but the case has never been dissented fromand reasons for the decision have been given in later cases referring to it.Thus in Dawbarn v. Ryalla'which was an action by vendee against hisvendor for deficiency in the extent of land sold to him by notarial con-veyance and wherein it was held that his claim to the deficiency, orrather to damages in lieu thereof, arose directly out of the writtencontract of sale between him and his vendor, Lascelles C.J. said:
“In Thommasie v. Kanavathipillai, it was held that a claim for purchasemoney which was expressed in the conveyance to have been previouslypaid was a simple money debt which would be prescribed in three years.This does not seem to me to be inconsistent with the plaintiff’s contention,for the conveyance in that case, so far from importing any promise to paythe purchase money, proceeded on the footing that it was already paid. ”In Lamatena v. Rahaman Dooie8, Thommasie’s case was referred to asfollows:—“Although that was an action to recover the consideratiohfor a land sold to the defendant, the claim did not arise on the deed ofsale, as the deed stc*°d that the full purchase money had been receivedby the vendor. In fact, the deed of sale negatived the claim and it couldnot be said to have been based on or to have arisen from the deed. ”It is difficult to escape from this reasoning, namely, that in Thommasie’s
• (1883) 5 S. C. C. 174.2 (1914) 17 N. L. B. 372.
3.(1924) 26 N. L. R. 406.
King v. Abdul Rahiman.
case plaintiffs claim was not upon a written contract but against orin spite of it, and the decision seems one by which we are bound.
It has been argued however that the facts in this case distinguish itfrom Thommpsie’s case. There the defendant seems to have deniedthat the consideration was in fact unpaid, here the defendant-respondentadmits that it is in fact unpaid; but it is not easy to see that this makesan essential difference between the two cases. The plaintiff-appellanthere must go against the written contract to make out his case, hemust contradict its statement that the consideration he now seekspayment of, was in fact paid, and it can make no difference to theessence of his action whether he establishes that contradiction by hisown evidence or by an admission from the defendant; in either caseit remains a contradiction of the document and, if so, he cannot well saythat he sues “ upon a written contract ” and so brings himself withinsection 7 of the Ordinance. Then, if he is not suing upon a writtencontract, he must be suing upon an unwritten one and if so, is withinsection 8 of the Ordinance which means that his action not having beenbrought within the three years is prescribed.
It was argued to us that the words in deed No. 1,739, “ the receiptwhereof the vendor hereby acknowledges ” merely referred to the means.of fulfilling the contract. No authority was cited to us in support andI would, rather incline to the view that the words are a statement offact. It should be noticed that the argument and the judgment inNadaraja v. Ramalingam1 proceeded on the assumption that such arecital in a deed of conveyance, namely, that consideration had passed,was a statement of fact and, if incorrect, then to be disproved in the samemanner as any other statement of fact that is impugned.
For the foregoing reasons, I am of opinion that the plaintiff-appellant’sclaim was upon an unwritten agreement made more than three yearsbefore he brought action and, if so, prescribed by section 8 of Ordi-nance No. 22 of 1871. The appeal therefore fails and must be dismissed
Dai.ton J.—I agree.
BANDARA v. PUNCHI BANDA