GRATTAEN J.—Wijesinghc v. Sonnadara
-1051Present: Oratlaen J. and Pulle 'J.
WIJESINGHE, Appellant, and SONNADARA, RespondentS. C. 569—D. C. Matara, 19,243
Vendor and purchaser—Sale of contingent interest in partition action—Sale of a chanceor expectation—Conventio rei eperatae and Convention spei simplicis—Validityof such contracts—Partition Ordinance, s. 17.
The sale by a co-owner in land of whatever interests might ultimately beallotted to him under the decree in a pending partition action may be construedas a conventio rei speratae. In such a case, if some benefit, even to a far smallerextent than the parties had originally hoped for, accrued to the seller under thepartition decree, the purchaser is not entitled to claim a cancellation of thesale on the ground of failure of consideration.
A. PPEAL from a judgment of the District Court, Mat-ara.
H. V. Per era, K.C., with H. IF. Jayewardene and J. IF. Subasinghe,for the defendant appellant.
U. A. Jayasundera, K.G., with C. G.respondent.
Weeramantry, for the plaintiffCur. ado. vult.
May 29, 1951. Gratiaen J.—
This -appeal relates to a dispute which might well have been sensiblyadjusted without resorting to litigation. The action was institutedin 1948, and the contract in respect of which the parties have fallen outwas entered into nearly 21 years ago. The plaintiff is now 64 yearsold. The defendant is about the same age.
The facts with which this appeal is concerned are no longer in dispute.-On some date prior to June, 1930, the defendant had instituted a partitionaction in respect of lots B, C, D and E of a vast tract of land inj theSouthern Province, known as “ Shand’s Land ", which is stated to beover 4,000 acres in extent. There is no evidence before us as to thenature or the value of the plantations on the property, or as to themanner in which it had previously been enjoyed by the plaintiff and425 other persons whom, at one time or another, he joined as defendantsin the action and with whom he had found that “ common possessionwas no longer expedient or impracticable ”. The present plaintiff washimself a party to those proceedings, but only in the capacity of a planter•of some part of the property claiming compensation for the improvementseffected by him.
At an early stage of the pendency of the partition action the plaintiffnegotiated with the defendant for the purchase of certain interestswhich the latter claimed in the property. An alienation of any existingundivided rights in the land was of course precluded by section 17 ofthe Partition Ordinance, and the proposed transaction was therefore .
GRATIA EX J.— Wijesimjhe e. Sonnadara
confined to the acquisition by the plaintiff of what might ultimately beallotted to the defendant under the final decree in the action. When suchdecree would be entered, no man could predict with any confidence.In point of fact, the action seems to have proceeded at a pace which wasunusually leisurely for even a partition action in the Southern Province.Final decree was duly entered of record on 15th December, 1947, theinterlocutory decree having been passed on 24th March, 1943.
I must now return to the negotiations which were taking place in1930. On 17th June of that year the defendant, in consideration ofa sum of Its. 5,000, which was duly paid to him, sold to the plaintiffunder a notarial conveyance: —
“ 1. All that undivided one hundred acres together with all therights advantages and disadvantages such as costs compensationet cetera thereto appertaining out of the extent and the share incommon or severally which may be allotted to the vendor under thefinally conclusive decree which may be entered in the partition caseNo. 2664 of the District Court of Tangalla of the land called Godako-galla (exclusive of the block A partitioned in case No. 1207 in theDistrict Court of Tangalla, the block called Shandsland partitionedin case No. 1538 in the. District Court of Tangalla and blocks B and Cas per plan in preliminary survey in the District Court case No. 2664of Tangalla) situate at Koggalla in Magam Pattu of the HambantotaDistrict, Southern Province, and bounded on the North by Ridiyagama,East by Walakogalla and Koggaluara, South bv Koggaluara andKoggalutota and West by. Walawe River containing in extent 4,001/acres.
All that undivided one amunam and five kurunies of the jpaddvfield of the land called Kodakoggalla …. situate at Koggala afore-said, and bounded on the North by Ridiyagama, East by Walakoggalaand Koggaluara, South by Koggaluara and Koggalutota, and West byWalawe River, containing in extent about 4,000 acres ”.
The second land sold under this deed was admittedly land the ownershipof which was not complicated by the pendency of any partition action,and the deed operated as an immediate convej’ance to the plaintiff of thepaddy field concerned. The plaintiff therefore became as from thatdate the owner of this property.
With regard to the other property which was described earlier in thedeed, it is clear that the parties had successfully steered clear of thehazards of section 17 of the Ordinance. In accordance with the recentdecision of a Divisional Bench of this Court in Sirisoma v. SameliaAppuhamy l, the deed operated as a-present alienation of a part of thedefendant’s contingent interest in what might ultimately be allottedto him under the decree in the pending action. If, under that decree,the defendant were to receive one or more divided allotments, whosetotal acreage exceeded 100 acres, out of lots D or E, the plaintiff wouldin terms of the conveyance become automatically vested with titleto an undivided share in such allotment or allotments in the proportionof 100 to their total acreage. If, however, the defendant were to receive
* (I960) 51 N. L. R. 337.
GBATIAEN J.—Wijesinghc r. Sonnadara
one or more allotments in lots D or E with an aggregate acreage of lessthan 100 acies, the plaintiff would automatically, and without anyfurther conveyance thereof, become the owner of the entire allotmentor allotments. If, finally, the defendant was allotted nothing at allin lots D or E under the partition decree, then nothing would pass tothe plaintiff under the first part of the conveyance of 17th June, 1930.
The language of that part of the deed which disposed of the defendant’scontingent interests in Shand’s Land must be interpreted in the light ofthe common experience of men as to the risks which are necessarilyinvolved in any litigation under the Partition Ordinance, and it mustbe assumed that both parties to the transaction had those risks in contem-plation when the deed was executed 21 years ago. There were no expresscovenants under which the defendant, as vendor, undertook that, shouldany unforeseen contingency arise which they both hoped would not occur,the defendant should indemnify the plaintiff as purchaser against the lossresulting therefrom. Indeed, the outcome of the particular action was, byits very nature attendant with risks and complications of a special kind.For instance, the subject matter of the action was unusually large, andthe number of interested parties exceptionally high. There was noreasonable certainty that the Judge, or successive Judges, in control of theproceedings would not decide to exclude from the scope of the action oneor more of the allotments of land which taken together comprised“ Sband’s Land ". Besides, it was expressly stipulated in the convey-ance that if the defendant were to receive under the final decree anypart of the land falling within lots B and C, these allotments would notpass to the plaintiff, and both parties should have realised that the finalscheme of partition was a matter on which the plaintiff could not as ofright control the decision of the trial Judge. All these and other con-siderations, in addition to the express terms of the deed of conveyance,satisfy me that the contract between the parties in respect of the contin-gent interests in the land under partition was a contract under whichthe plaintiff purchased “ a chance or expectation that a thing wouldcome into existence ”, a conventio spei', which, under the Roman DutchLaw governing the case, can be the legitimate subject matter of a bindingcontract.
IFcssels tells us in his treatise on the Law of Contracts (Vol. I, -para-graphs 393 to 395) that the sale of a chance or expectation (i.e., of acontingent interest) may be either conventio spei simplicis or a conventiorci speratae. “ In the former case the object depends entirely on thegood fortune of the moment. A fisherman sells the result of the castof his net. He may catch fish or he may not. The object of the contractis the result of pure chance. If there is a large haul, the fisherman isbound to hand it over; if there is nothing in the net, the fisherman takesthe price for which he sold the chance of a catch. In the case of a con-ventio rei speratae there is more than a mere chance—there is a considerabledegree of certainty according to our ordinary experience. Thus, if Isell next year’s crop or the next year’s lambs of my flock, the purchaserknows from experience that there is more than a mere chance, that there
will be a crojf or an increase from the flockin such a case
the law presumes a tacit understanding between the parties that, if
GBATIAEN J.— Wiiesinglie v. Sonnadara
by some unforeseen circumstance there is no crop whatsoever, the obligationwill be without an object and therefore there will be no contract. If, how-ever, there is a small crop or still bom lambs, then the contract will be validand enforceable
In my opinion the sale by a co-owner in land of whatever interests-might ultimately be allotted to him under the decree in a pending partitionaction may fairly be construed as a conventio rci speratae. I do notthink that the admitted hazards attendant on the outcome of proceedingsunder the Partition Ordinance are quite sufficient to justify the conclusionthat there is not a reasonable degree of certainty that some advantage atleast, however small, is likely to pass to the co-owner under the finaldecree. If this be so, the validity of the sale of the defendant's con-tingent interests must be determined by reference to the question whetheror not some benefits, even to a far smaller extent than the parties hadoriginally hoped for, did accrue to the seller under the partition decree.Applying this test to the contract in the present case, I am of the opinionthat the plaintiff could not claim successfully that there was a totalfailure of consideration even if the sum of Rs. 5,000 paid by him underthe deed was solely referable to the purchase of the defendant’s contingent-interests in the partition proceedings. Admittedly lot E was, by anorder of Court in the interlocutory decree of 1943, excluded from tirescope of the action. But under the final decree the defendant was infact allotted 13 acres 1 rood 20 perches in lot D, and, upon the properconstruction of the deed of 1930, the plaintiff automatically becamethe lawful owner of this allotment. In the result, the plaintiff’s claimfor a cancellation of the deed on the ground that there was a failure ofconsideration, and for the return of the purchase price, must necessarilyfail. Besides, it must be remembered that what was in fact conveyedto the plaintiff in 1930 was not only a contingent interest but, in addition,a present interest in certain paddy lands. The purchase price of Rs. 5,000represented a single indivisible consideration for both these interests.In return for this consideration, the plaintiff has no doubt received agood deal less than he had hoped for under that part of the transactionwhich constituted a conventio rei speratae. Nevertheless, that risk,which is necessarily incidental to this class of transaction, mustin the eyes of the law fall on him. By virtue of the contract,he became the lawful owner of the paddy lands in 1930 and of 13 acres1 rood 20 perches in lot B in 1947. His action for the cancellationof the deed and for the return of the consideration was therefore mis-conceived. It is not necessary to express an opinion whether he mighthave succeeded if a claim for relief had been formulated on differentgrounds.
Mr. Jayasundera invited us to hold that, even if there was no failureof consideration, the defendant was entitled to recover the purchaseprice on the ground that the contract was avoided because it becameimpossible of performance owing to the final result of the partitionaction. It seems to me that a claim of this basis would have been equallymisconceived. As I understand them, the principles of the Roman.Dutch Law dealing with “ impossibility of performance ” in relationto contracts apply only to executory contracts, whereas the present
Romanis Fernando v. Wimalasiri Thero
contract, from the moment of its execution, operated as a present saleof a contingent interest in one land as well as of an existing interestin another. Admittedly, one must read into the contract an impliedobligation undertaken by the defendant to make his best endeavours-to bring the partition case which he had instituted to a successful con-clusion. It is not alleged or proved that he did not fulfil this obligation,and even if he had failed in this respect, the plaintiff’s appropriate remedywould have been a claim for damages and not a claim for a declarationthat the contract was invalid.
Inopinion the judgment of the learned District Judge ordering-
the defendant to refund to the plaintiff the consideration of Rs. 5,000with legal interest, must be set aside. I would allow the appeal and enterdecree dismissing the plaintiff’s action with costs both here and in theCourt below.
In conclusion, I desire to point out that, according to the evidence,the defendant made an offer to convey to the plaintiff, by way of com-promise, some part of what may ultimately be allotted to him out oflot E, which had been excluded from the scope of the earlier partitionaction but in respect of which separate proceedings under the PartitionOrdinance have since been instituted. It seems to me that this wouldhave been a verv reasonable and indeed an honourable adjustment of thepresent dispute, and it is a pity that the plaintiff did not accept it. Ican onlv hope that some such compromise may even now be effected.
Puj.ijb J.—-I agree.
WIJESINGHE, Appellant, and SONNADARA, Respondent