D. M. K. APPUHAMY, Appellant, and K. KEERALA, Respondent

077-NLR-NLR-V-73-D.-M.-K.-APPUHAMY-Appellant-and-K.-KEERALA-Respondent.pdf


A ppnha my u. Kcciula
422
1970 _ .Prese.nt: Alles, J., and Weeramantry, J. *D. 31. K. APPUHA3IY, Appellant, and K. KEERALA, RespondentS. C. 559/66 (F)—D. G. Nuu-ara Eliya, 95/L:Vendor and purchaser—Sale of immovable property—Cancellation on ground ofIiutsio cnormis—Quantum of evidence.
Where a sale of an undivided share of a land is sought to bo set aside on thoground of taeaio enormia, tho Court must compute tho value of the land on thobasis of thb extent actually conveyed on tho tlood and not on tho basis ofevidence, showing that tho vendor possessed tho entirety of tho land.
> 0964) 66 N. b. R. 415.
■YEERAM.A_XTRY, J.—Appuhamy o. Kterala
423
ApPEAL from a judgment- of the District Court, Nuwara Eliya.Rajah Bandaranayalce, for the defendant-appellant.
R. P. Goonetilleke, for the substituted plaintififs-respondents.
Cur. ado. vuU.
June 1G, 1970. Wjeframastry, J.—
The plaintiff instituted this action praying that deed Xo. 10,935 (PI,also marked D3) of Sth March 1963 bo set aside on the ground of laesioe nor mis. Upon this deed the plaintiff sold to the defendant two extentsof land for a sum of Rs. 1,000. The first of these was a paddy landand the second a highland planted in kurakkan on which also stooda house.
The learned District Judge has entered judgment in favour of theplaintiff on tlio basis that the value of the property so conveyed was asum of Its. 2,250 made up in this way :—Rs. 750 for the paddy land, andRs. 1,500 for the kurakkan land and the house.
The finding of the learned District Judge that the property conveyedexceeded twice tho consideration stated on the deed has been attackedon behalf of the appellant on more than one ground. The chief amongthese is that the properties conveyed were undivided half shares of therespective lands, as appears quite clearly from the schedule to the deed.The learned District Judge has on the other hand computed the value ofthese extents on tho basis of the value of the entirety of each of thoseextents of land instead of on the basis of the value of Ihc half share whichin fact passed upon tho deed. The learned District Julgo was indeedconscious of the fact that the extent actually conveyed was less than thoextents, tho valuo of which ho was assessing for tlie purpose of hisjudgment. Indeed hi has observed 1 hit if these were the actualextents conveyed to the defendants tho price paid would not hive beeninadequate He has, however, gone on to observe that the evidence is thatthe plaintiff lud possessed the entire land and on this basis he has takenthe view that the price paid is inadequate.
The learned District Judge appears to have misdirected himself intaking these extraneous circumstances into account instead of confininghis attention to uhit actually passed upon tho deed. What passedupon the deed was a half share of each of those lands, and although theplaintiff may have possessed tho entirety of the land, still he was conveyingspecifically no more than nn undivided half share in, each land. Forthe purpose of laesio enormis, where it is sought to set asido this deed,we can only look to the extents actually conveyed on the deed and onthis basis it scenis clear that the valuation of Rs. 2,250 arrived at by thelearned District Judge is in excess of the true value of what tho deeditself conveyed.
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Zohir v. Pcrcra
On Iho question of valuation, it should be observed that there wasonly one witness who gave specific evidence in regard to the value of thehouso and that witness estimated the house as being worth Rs. 500 invalue. Since this is the only definite evidence in regard to iho valueof the heuae, wo feel t hat it- is the only evidence which would be helpfulto the Court in separating out the respective values of the kurakkanland and iho house. In so far as concerns the second parcel of landconveyed upon the deed, the kurakkan land will then bo worth Rs. 1,000and .half the land would be worth Rs. 500. Half the piddy land wouldbo worth only Rs. 375 on tire basis of tho valuation which iho learnedDistrict Judge has accepted. We arc then left with a valuation of theproperty conveyed upon this deed as being the total of Rs. 500 beingthe value of tho houso and sums of Rs. 500 and Rs. 375 respectively{i.o. half tho values accepted by tho learned judge himself in regard totho two lands.) Tho total of these sums is Rs. 1,375 which falls farbelow' the limit of Rs. 2,000 which the plaintiff must establish if he isto succeed on the ground of laesi'o enormis. On this ground alone thoappeal is entitled to succeed.
"Wo should, however, refer to the fact that the appellant does notaccept lh3 correctness of the valuations on which the learned judge hasbased his judgment, for there is evidence that a kurakkan land in this areais worth Rs. 1,500 per acre, so that the extent of 5 perches which wasconveyed upon the deed would be;worth approximately Rs. 35. Thisagain would bring tho value of the property sold to a yet lower figure.
For these reasons, we hold that the plaintiff is not entitled to have thedeed set aside on the ground of laesio enormis and we set aside the judgmentand decree of the learned District Judge and make order dismissing theplaintiff’s action -with costs both hero and in the Court below.
Alles, J.—I agree.
Appeal allowed. ■