Thamotheram.pU.lai v. Kanapathipillai.
Present: Howard CJ.
THAMQTHERAMPTLT.AJ v. KANAPATHIPILLAI.162—C. R., Point Pedro, 30,577.
Action to recover purchase-money—Conveyance of undivided shares of landpending partition—failureof consideration—Cause of action—■
Prescription—Right to maintain action.
Where the plaintiff brought an action for the rcovery of the purchaseprice of certain undivided shares of land sold to him by the defendant,pending an action for the partition of the land, on the ground that therehas been a failure of consideration,—
Held, that the action was prescribed in three years and the cause ofaction arose as from the date on which the conveyance was made andthe purchase money paid._
Bandara v. Punchi Banda (34 N. L. R. 262) followed.
Held, further, that the plaintiff was not entitled to maintain the actionuntil he had been judicially evicted, as the conveyance in his favourdid not contain a warranty of title express or implied.
HIS was an action brought by the plaintiff to recover from the
defendant a sum of Rs. 300, with interest and costs. The actionarose out of deed No. 2193 dated February 14, 1934, by which thedefendant, his wife and another person sold to the plaintiff for Rs. 750certain undivided shares of land belonging to them. After he hadentered into possession the plaintiff discovered that the land sold to himwas the subject of a partition action No. 13,199.
The plaintiff claimed from the defendant the price of the shareconveyed by him.
The defendant pleaded that the plaintiff could not maintain the actionuntil he had been judicially evicted from the land. The defendant alsocontended that the action was prescribed.
The Commissioner of Requests held that the deed of conveyancehaving proved invalid, the plaintiff was entitled to sue for the recoveryof the purchase money without judicial eviction.
He also held that the plaintiff’s claim was based on a written agreementand was prescribed in six years.
L. A. Rajapakse, for defendant, appellant.—Assuming that a cause ofaction accrued to the plaintiff, for the refund of the consideration, it isprescribed. The claim is not based on the written contract P 1, but inspite of it. Thommassie v. Kanapathipillai Murugasoe et al.Bandara v.Punchi Banda It is prescribed in three years. See sections 7 and 10of the Prescription Ordinance.
But in fact plaintiff has no cause of action. The plaintiff and defendantwere both parties to the old partition action and the defendant hasfulfilled his agreement by executing the deed P 1 and giving the plaintiffvacant possession. The plaintiff is admittedly still in possession. Even
1 S S.C. C. 174.
1 34 N. L. B. 262.
HOWARD C.J.—Thamotherampillai v. Kanapathipillai.
if the title on P 1 is bad, as between them the plaintiff has no cause ofaction until he is judicially evicted. Ratwatte v. Dullewe'; James v.Suppa Umma
A warranty oj title (i.e., that the vendor has a good title), is distinctfrom a covenant to warrant and defend title in the future if the vendee isjudicially evicted. The former may not be implied, it must be expresslystated; but the latter may be implied though not expressly stated.In P 1 there being no express warranty of title under the Roman-Dutchlaw (unlike- the English law) all that the vendee need give is vacantpossession. Chellappah v. Me HeyzerRamalingam v. Adjoowad
In the Roman-Dutch law a person may sell a property that does notbelong to him.
N. Nadarajah (with him H. W. Thambiah and V. F. Gunaratna), forplaintiff, respondent.—The transfer is void under section 17 of thePartition Ordinance, No. 10 of 1863. There is a prohibition against suchtransfers. It is something that is extra commercium, viz., that cannot besold, such as res religiosae or res sacrae See Berwick’s Voet, p. 18.The consideration paid for the transfer of suen a thing is recoverable.Even in the case of a mortgage pending partition proceedings the creditoris not barred from recovering his money on the bond. See Jayawardenepn Partition, p. 311. One may infer the existence of a warranty of titlein P 1; if so, action will lie without a judicial eviction. Misso v. Hadjiar *;see also Fernando v. Jayawardene
The cause of action is based on the deed P 1 and is therefore notprescribed till six years. Section 6 of the Prescription Ordinance.See also Dawbarn v. RyallLama Etana v. Rahaman Doole’; whichdistinguishes Thommassie v. Kanapathipillai (supra). There is an impliedpromise in the document to refund the consideration if the agreementis not implemented. See Sonnandara v. Weerasinghe ’.
L. A. Rajapakse, in reply.—Dawbarn v. Ryall and Lama Etana v.Rahaman Doole (supra) are both in my favour. One is to recover adeficiency in extent, the other to recover a deficiency in the consideration.They are both actions based upon the written contract and grow directlyfrom the deed.
In the case of a mortgage bond there are two distinct and severableparts : the part hypothecating the land is bad as it was executed pendingpartition, but not the promise to pay the loan. The latter is enforcible.
Cur. adv. vult.
February 21, 1940. Howard C.J.—
This is an appeal by the defendant from a judgment of the Commissionerof Requests, Point Pedro, of April 17, 1939, ordering that the defendantpay to the plaintiff the sum of Rs. 300 with interest and costs. Theaction arose out of deed No. 2193 dated February 14, 1934, by which thedefendant and his wife and one other sold to the plaintiff for the sum ofRs. 750 certain undivided shares of land belonging to the vendors.Subsequently, after entering into possession of the said shares, the plaintiff
» 10 N.L. R. 304519 N. L.R. 277.
» 17 N.£r. R. 33.•2 N. L. R. 309.
’ 38 N.L. R. 393.■17 N. L.R. 372.
* 15 C.L. W. 124.•26 N. L.R. 406.
■ 1C. L. U 328.
HOWARD C.J.—Thamotherampillai v. Kanapathipillai.
discovered that the land sold to him was the subject of a partition actionNo. 13,199 of 1909. On the defendant and other parties undertakingto execute a valid transfer in favour of the plaintiff, the latter applied,in the said action No. 13,199 of 1909 to have the said land partitioned.This application was dismissed by the Court and the plaintiff was referredto his remedy by separate action. The plaintiff maintains that he hasa cause of action against the defendant from whom he claims, a sum ofRs. 300 made up of a' sum of Rs. 325 being the price of the share con-veyed by the defendant to the plaintiff less Rs. 25 waived to bring theaction within the jurisdiction of the Court of Requests.
In the Court of Requests two points were made on behalf of thedefendant. It was contended that the plaintiff could not maintain thisaction inasmuch as he had not been judicially evicted from the said land.It was further contended that even if the action was maintainable, it wasprescribed. The Commissioner of Requests has held that the plaintiff’sclaim is based on a written agreement and therefore not prescribed asmade within a period of six years. Moreover, as the plaintiff came toknow that the deed P 1 was of no use to him only in January, 1937,his cause of action can be considered to have arisen from then only.With regard to the first point, the learned Commissioner has held thatthe deed P 1 being proved to be invalid the plaintiff is entitled to sue thedefendant for the recovery of the money without judicial eviction.
In this Court the defendant relies on the contentions submitted to theCommissioner. I propose to deal first with the question of prescription.The plaintiff contends that his claim arises out of P 1, is, therefore,based on a written agreement and comes within section 6 of the Prescrip-tion Ordinance and not prescribed as the claim is made within six years.The defendant on the other hand argues that the claim is not based onP 1 and hence the action, not having been commenced within twoyears from the time when the cause of action arose is in accordance withthe provisions of section 9 of the Ordinance not maintainable. Variousauthorities have been brought to my notice. In Thommassie v. Kana-pathipillai Murugasoe and another', the owner of land in 1879 conveyedthe land to a purchaser, the conveyance purporting to be made for apecuniary consideration recited as previously paid. More than threeyears after the date of the conveyance the vendor sued the purchaserfor the purchase money averring that it had not been paid. It was heldthat the plaintiff’s action is a simple action of debt and was consequentlybarred by the lapse of three years before action brought. The decisionin Thommassie v. Kanapathipillai Murugasoe (supra) was followed inBandara v. Punchi Banda1, where it was held by Macdonell C.J., that anaction to recover purchase money which was expressed in the conveyanceto have been previously paid, is prescribed in three years. In that casethe Chief Justice held that the plaintiff so far from suing on a writtendocument was suing against one. Moreover, that his claim was ratherupon an executed consideration inasmuch as he had conveyed the landnow seeks payment for it and to ascertain what the amount of thatpayment must be he refers to a written contract but does not claim1 5 S. C. C. 174.'2 34 N. L. R: 262-
HOWARD C.J.—Thamotherampillai v. Kanapathipillai.
under it but against it. I have been referred by Counsel for the respond-ent to the cases of Lama Etana v. Rahaman Doole' and Dawbarn v. Ryall *both of which were cited in Bandara v. Punchi Banda (supra). InLama Etana v. Rahaman Doole it was held that a claim to recoverthe unpaid balance of the purchase price of land transferred by a deedof sale grows directly out of the deed of sale, is dependent on it andderives its vital force from it. It is, therefore, a claim arising from anagreement in writing and prescribed in six years. In Dawbarn v.Ryall the vendee sued the vendor to recover compensation for adeficiency in the extent of the land sold to him by a notarial conveyanceand it was held that the claim was based on a written agreement andwould be prescribed after the expiration of six years. In that case theobligation was contractual and the claim was based on the writtencontract of sale between the parties. To my mind the present casefalls within the principle laid down in Bandara v. Punchi Banda andThommassie v. Kanapathipillai Murugasoe and is distinguishablefrom Lama Etana v. Rahaman Doole and Dawbarn v. Ryall. Theobligation arises as in those cases not out of the written agreement,but in spite of it. It is not dependent on it nor does it derive any forcefrom it. Reference is made to it merely to ascertain for what sum theproperty was conveyed. The action, therefore, falls within eithersection 7 or section 10 of the Prescription Ordinance and is not maintain-able if not commenced within three years from the time after the causeof action shall have arisen. The Commissioner has also held that theplaintiff’s cause of action can be considered to have arisen only inJanuary, 1937, when he came to know that the deed P 1 was of no useto him. On this point also I am of opinion that the Commissioner hascome to a wrong conclusion. The claim for the recovery of the purchasemoney is based on the ground that the transfer of the property beingprohibited by law was invalid and hence the purchase money was givenwithout consideration. The cause of action, therefore, arose as fromFebruary 14, 1934, the date on which the conveyance was made and thepurchase money paid. The plaintiff was not suffering from any of thedisabilities referred to in sections 13 and 14 of the Prescription Ordinance.The fact that he became aware in January, 1937, that P 1 was of no useto him is immaterial and cannot be regarded as prolonging the periodallowed for bringing his claim. The cause of action, therefore, arose onFebruary 14, 1934, and having been instituted only on November 16,1938, is barred.
Counsel for the defendant also contended that this cause of action,even if not barred under the provisions of the Prescription Ordinance,was premature and could not arise until the plaintiff had been oustedby a third party with a superior title. In this connection my attentionwas invited to the terms of P 1 which contained no warranty of title.In Ratwatte v. Dullewe ’ it was held that a vendor of immovable propertywas bound to deliver vacant possession and on his failure to do so thevendee is entitled to a rescission of the sale and a refund of the purchasemoney. Mr. Rajapakse has contended that, apart from the obligationto give vacant possession, no other obligation either express or implied* 26 N. L. R. 406.* 17 N. L. R. 372.* 10 N. L. R. 304.
Muthuweeran v. Superintendent, Etana Estate.
arises from P 1. In Jamis v. Suppa Umma et al.it was held by WoodRenton A-CJT-, that, in the absence of fraud or of an express warranty oftitle, the only primary obligations resting on the vendor of immovableproperty are to give the purchaser “ vacant possession ”, that is to saypossession unmolested by the claim of any other person in possessionof the property and to warrant and defend the title which he conveys,after the purchaser, once placed in possession, has been judicially evicted.In Misso v. Hadjiar', it was held that in Roman-Dutch law there is noimplied obligation on the part of the vendor to convey good title. Hisobligation is to give vacant possession and to warrant against eviction.The principle that a purchaser has his remedy only after judicial evictionreceives support also from Berwick’s Voet, page 173. Counsel for theplaintiff has contended that there can be no contract in respect of some-thing the sale of which is prohibited by law. In this case the sale byvirtue of section 17 of the Partition Ordinance was unlawful, null andvoid. The transfer was therefore void and the purchase money handedover to perform an impossibility. The sale price was, therefore,recoverable even though the plaintiff had assumed undisturbed possessionand had not been evicted. No authority was cited in favour of thisproposition. I was, however, referred to certain passages on pages 18and 19 of Berwick’s Voet relating to the sale of such things as arrexcluded from commerce by nature, by the jus gentium or by the usagesof t.ie State. I do not think these passages assist the plaintiff in hispresentation of this case. No warranty of title was given in nor can it beimplied from P 1. The plaintiff has been given vacant possession andhas not been judicially evicted. The action, therefore, even if maintain-able, is premature.
For the various reasons I have given in this judgment the plaintiff’saction must fail. The judgment of the Commissioner is set aside and theremust be judgment for the defendant with costs in this Court and the Courtbelow.