Jinadasa v. Silva
1932Present '■ Garvin S.P.J. and Maartensz A.J.
JINADASA v. SILVA.
315—D. C. Kalutara, 16,193.
Contract—Stipulation in favour of third party—Right of action—Roman-Dutch law.
Under the Roman-Dutch law a stipulation in a contract in favour ofa third party may be enforced by such party where it has been acceptedby him.
^^PPEAL from a judgment of the District Judge of Kalutara.
Hayley, K.C. (with him Molligodde and Weerasooria), for defendant-
H. V. Perera, for plaintiff-respondent.
i 31 N L. R. 438.
– 0 Times Law Reports 93.
GARVIN S.P.J.—Jinadasa v. Silva
November 3, 1932. Garvin S.P.J.—
By the document P 1, dated June 12, j.927, one Don Peter sold andconveyed certain premises to Don Kornelis Silva. The conveyance wasmade subject to a further agreement which is expressed in the deed asfollows: “ These presents fjirther witness that the said vendeefor himself and his aforewitten doth hereby convenant and agree toretransfer the said premises to the said vendor or, failing him, to hisbrother-in-law Walatara Acharige Jinadasa or the heirs, executors,administrators, and assigns of the said Jinadasa if called upon by thesaid vendor or the said Walatara Acharige Jinadasa or his aforewrittenat any time within five years from the date of these presents and onpayment by the said vendor or the said Jinadasa or his aforewrittenof the said sum of Rs. 1,000, with interest thereon at 16 per cent, perannum from the date of these presents.” Don Peter died withoutexercising his rights to obtain a reconveyance of these premises uponpayment of the sum of Rs.- 1,000 together with such interest as mayhave accrued in the meanwhile. The present action is brought byJinadasa. He claims that he is personally entitled to maintain anaction to obtain the rights secured to him by this stipulation andalternatively, that in his capacity of administrator of the estate of DonPeter, deceased, he is entitled to maintain an action to compel thefulfilment of the obligation undertaken by Don Kornelis Silva by obtain-ing from the Court a decree directing Don Kornelis Silva to accept fromhim in his personal capacity the sum of Rs. 1,000 and convey thepremises to him. The learned District Judge has, as a matter ofinterpretation, come to the conclusion that the true meaning of thelanguage used in this deed is that the benefits of this convenant shallbe available to Don Peter during his lifetime and that upon his deaththese benefits were to pass to Jinadasa or his heirs, executors, or adminis-trators and not to the heirs or representatives of the estate of Don Peter,and with this interpretation I agree.
The question 'which has been raised; and argued before us is this :The stipulation being one which was made in favour of a third partyis it actionable by or at the instance of such third party? That such anagreement may be validly made between the parties to a contract suchas this, is, I think, beyond question for the Roman-Dutch law authorities,to which reference has been made in the course of this argument andwhich are collected in the case of McCullogh v. Fernwood Estate, Ltd1.,are overwhelmingly in favour of the contention not only that such ariagreement is valid but that when accepted by the third party Whom itis desired to benefit by the stipulation it is actionable by that thirdparty and at his instance. The whole of the question is so fully dis-cussed and considered in the case referred to and also in the Chapterheaded “Stipulations in favour of a third person” in the Appendix toVan heeuwen’s Commentaries on the Roman-Dutch Law by Kotze,Vol. II., pp. 598-604, that there is nothing that" one can profitably addto what has been said there. It seems clear that whatever differenceof opinion there may have been between the Dutch Jurists they wereall unanimously of opinion that a stipulation in favour of a third party
< S. .4. Ir/lt. (1920) App. Div. p. 2Q4.
346DE SILVA A.J.—Imperial Bank of India, Ltd. v. Silva.
once it has been accepted by the third party gave to that party a rightto obtain for himself the benefits of the stipulation by action. Nowin the case before us there can be no question that Jinadasa has beenshown to have accepted the stipulation. It has moreover been provedthat he tendered the sum of Rs. 1,000, with interest computed up tothe date of the tender and demanded the fulfilment by the defendantof his obligation to convey to him the premises referred to in the deedP 1. He was therefore in my opinion entitled to that reconveyanceand to the benefit of the decree in his favour entered by the learnedDistrict Judge.
The appeal will stand dismissed with costs.
Maartensz A.J.—I agree.
JINADASA v. SILVA