Dias v. Alahakoon.
1938Present: Maartensz and Keuneman JJ..
DIAS v. ALAHAKOON et al.
38—D. C. (Inty.) Galle, 33,457.
Movable property—Deed of sale—Right to a retransfer—Sa le in execution—Roman-Dutch law.
A right to a retransfer reserved to a vendor in a conveyance gives riseto an action in personam under the deed.
Where such a right is sold in execution, it must be regarded as movableproperty for purposes of execution proceedings.
Y deed No. 630' of October 6, 1934, the defendant-respondent soldcertain immovable property to Porolis de Silva ;• Under the convey-
ance, a right of retransfer was reserved to the vendor subject to certainconditions. This right was seized and sold in execution against thedefendant and purchased by the appellant. On an application to setaside the sale, the District Judge held that the interest sold was immov-able property and that the seizure and sale not being in accordance withthe provisions of the Civil Procedure Code, the sale was void.
N. E. Weerasooria (with him A. E. R. Corea), for purchaser, appellant.—What was sold was the defendant’s right to obtain a retransfer of. a pro-perty sold by him under PI. It was sold as movable property. The salewas attacked by the defendant on various specified grounds. On allthese grounds the District Judge has held in my favour, but has set asidethe sale merely on the ground that the right sold was not movable butimmovable property. Assuming that he was right in so holding, a salecannot be set aside on a ground not stated in the petition. See section282, of Civil Procedure Code. The defendant sought relief under thissection.
[Maartensz J.^—If the property was sold as movable, how could hehave applied, under section 282, which refers to immovable property?]Section 282 is certainly inapplicable.
.The defendant was perfectly aware of the mode of seizure and mannerof sale. After he had acquiesced in the proceedings which treated theinterest sold as movable property, he could not subsequently questiontheir validity. See Samarasinghe. v. Samaradexoakere which follows thePrivy Council decision in Arunachalam v. Arunachalam".
What the defendant had under P 1 was an action in personam. Werelied on Arnolis Appuhamy Harmanis Kalotuwa3, and the authoritiescited there showing the distinction between rights in rem and rights inpersonam.
[Maartensz J.—If the right to retransfer can be assigned only notari-ally because it is an interest in immovable property, why should it beany the less an interest in immovable property if it is sold in execution?]
I am seeking to distinguish between immovable property as such and aright relating to immovable property. There is no definition of immov-able property in the Code, and we have to refer, to the Roman-Dutch law
1 11930) 11 Ceylon Laic Sec. 13..* (1888) I. L. R. 12 Mad. 19.
(1926) 8 Ceylon Laut See. 110.
KEUNEMAN J.—Dias v. Alahakoon.
for definition. Amolis Appuhamy v. Harmanis Kalotuwa (supra) is in myfavour. See also 2 Maasdorp, p. 5 (5th ed.), and Walter Pereira’s Laws ofCeylon, p. 282 (2nd ed.)
[Maartensz J.—Karuppen Chetty v. Silva et al. which deals with thesale of a lessor’s interest in a lease, may help you.]
[Kexjneman J.—Silva v. Selohamy et al.‘ deals with the procedureapplicable to the setting aside of a sale of movable property?]
Yes, it has to be by way of summary procedure, and substantial damagehas to be proved by the petitioner. The District Judge has expresslyheld that there was no substantial damage.
N. Nadarajah (with him U. A. Jayasundara), for defendant, respondent.—What is important is the agreement in P 1. In that deed, the defend-ant transfers a land to Prolis who in turn stipulates about retransfer todefendant, or his heirs, executors or administrators (not to .assigns).This agreement comes within the ruling in de Silva v. de Silva3. Theconvenant agreed to in P 1 was obviously one which ran with the land.The vendor has also a right to call upon the vendee for a retransfer. Heis in the position of a mortgagor, and therefore an interest in immovableproperty is involved. See Berwick’s Translation of Voet, p. 491, which isfollowed in Arnolis Appuhamy v. Harmanis Kalotuwa (supra).
[Maartensz J.—What is it on the face of the document? Is it a jusin rem or a jus in personam?]
2 Maasdorp, p. 5 (2nd ed.) deals with the distinction. See also Missov. Hadfiar' and 2 Maasd. p. 14.
The best test of the immovable character of the defendant’s interest inthe property sold is that a transfer of it has to be notarially executed.The equity of redemption to a mortgage has' been held to be immovableproperty—Parashram Harlal v. Ganesh Porgaumkar3 and SaminathenChetty v. Vander Poorten *.
The procedure adopted, although section 282 of the Civil ProcedureCode may be inapplicable, can be justified under section 344—AnnamalayChetty v. Sidambaram Chetty Muttiah v. Fernando *.
N. E. Weerasooria, in reply.—The passage in 2 Maasd., p. 14, merelysays that if a person has a real right, certain consequences follow. Thequestion is whether there is a real right here. Parashram Harlal v.Ganesh Porgaumkar (supra) is not applicable in Ceylon where the law ofmortgage is different from that of India. In the present case the defend-ant will have a jus in rem only if he has already clothed himself with
the legal title:„, •
July 1, 1938. Keuneman J.—
Under decree in this case the interest of the defendant-respondentunder the deed P 1 No. 630 of October 6, 1934, was seized and sold onMay 13, 1937, and was purchased by the appellant for the sum of Rs. 315.P 1 was a sale of the immovable property described in the schedule tothat deed for the sum of Rs. 750 by the defendant to Porolis de Silva,and contained a proviso whereby on the payment of Rs. 750 on or before
(1916) 1 A. C. R. 113. '«(1895)I. L. R. 21 Bomb. 226.
2 (1923) 25 N. L. R. 113.•(1932)34 N. L. R. 287.
2 (1937) 9 G. L. W. 61.7(1931)33 N. L. R. 277.
(1916) 19 N. L. R. 277 at 278.•(1893)2 A. C. R. 86.
JCEUNEMAN J.—Dias v. Alahakoon.
August 10, 1937, together with interest at 15 per cent, and on the prepara-tion at the vendee’s expense of a deed of retransfer and on written noticethe vendee undertook to retransfer the premises to the defendant. What-was seized under the decree was “ the right to retransfer in favour of thejudgment-debtor reserved in deed of transfer No. 630 of October 6, 1934 ”.
The defendant sought to have the sale set aside on various grounds.On most of .these grounds the learned District Judge held in favour of theappellant, and there is no occasion to disturb his finding on the facts.In particular he held that the defendant had not suffered substantial lossor‘any loss whatever. But the learned District Judge held further thatthe interest of the defendant which was sold was immovable property,and that execution proceedings had been taken .under the sections of theCivil Procedure Code relating to movable property and not those relatingto immovable property—in particular (1) that the full purchase price wasdemanded and not merely a deposit, (2) that the sale was held at theFiscal’s Office andfrot on the land itself, (3) that the seizure and advertise-ment of the sale were not in accordance with the provisions relating toimmovable property. The learned District Judge held that these wereillegalities which rendered the sale void. The purchaser appeals fromthis order.
The first matter argued for the appellant was that the sale could not beset aside because the defendants had suffered no loss or damage. Thiswould have been the case if the objection had related to “ irregularities ”under section 276 or section 282. Here if the learned District Judge isright in holding that the interest sold consisted of immovable property,the failure to have recourse to the procedure laid down for seizure andsale of immovable property would have been, I think, not* merely anirregularity but an illegality, and I think the application to set aside thesale would have been, not a proceeding under section 276 or section 282,-but a proceeding under section 344. I think that the argument on thispoint fails.
The next matter argued for the appellant was that the right to obtain aretransfer of the immovable property under P 1 was in fact movableproperty, and that the seizure and sale were correctly made. The CivilProcedure Code itself contains no definition of the terms “movableproperty ” or “ immovable property ”. We must accordingly resort tothe Roman-Dutch law in order to determine the nature of the propertyseized and sold.
Voet deals with pactum de retrovendendo 18.3.7—(see the translation inBerwick’s Voet at p. 48), as follows :—“A vendor desiring to recover thething under such a pact may either sue by the personal action “ ex vendito ”or by the " actio praescriptis verbis ” ■.. .. Plainly the rei
uindicatio is not available to a vendor in this case, for only an obligationto a performance (obligatio ad factum), viz., to a retrovenditio or resale, is-embraced in the pact sued upon ; unless it has been agreed that on theprice being restored within a certain time, " res inempta sit ” “ the thingis to be deemed as not purchased ” or " venditor rem recipiat ” “ thevendor is to have the thing back, for in such case the vendor may electwhether he will vindicate the thing itself after offering the price, orprosecute his claim by the actio venditi
KEUNEMAN J,—Dias v. Alahakoon.
Berwick’s comment on this passage is illuminating :“ The ‘ vindicatio
rei ’ or action in rem lies for recovery of -the thing itself specifically, whenthe plaintiff has a right of ownership or jus in rem. The ‘ actio venditi ’ anaction in personam, founded on contract, is a proceeding directed againstthe defendant personally, wherein he is condemned to fulfil the ‘ obli-gation’, i.e., personal contract he has incurred to make delivery of thething and on failure to pay damages
In Arnolis Appuhamy v. Haramanis Kalotuwa' Maartensz J. held onthe strength of these authorities that in the case of the right to a retransferof immovable property under a deed, the seizure of the^ right, title, andinterest of the plaintiffs in the land in question did not operate to conveyany interest in the land. What should have been seized and sold was theplaintiff’s interest in the deed, and the Fiscal’s transfer should have takenthe form of an assignment of the agreement to the purchaser.
On application of these authorities to the facts of the present case, it is.ilear that the defendant had no action in rem for the recovery of the land.All that he had was the obligatio.ad factum (to use the language of Voet),and the only action he had was one in personam based upon his contractualrights under P i, and that this was the right which could be seized andsold under the decree.
The further question remains whether this right was in its naturemovable or immovable. On this point there is the authority of van derKeessel Select Theses, Book 2, chap. 1, sec. 14, para. 178-179. The trans-lation of this is to be found in Lorensz’s van der Keessel at p. 59.
“ 178. By the law of Holland …. incorporal things, wherethe law or the will of the owner has given no direction to the contrary,are not comprehended under movables or immovables as in the case oflegacies, agreements and mortgages.
“ 179. But when it becomes necessary to refer them to onie or otherof these classes, then praedial servitudes and actions in rem should beconsidered as immovables, and actions in personam, although for therecovery of immovable property, or though immovable property mayhave been mortgaged for the debt, should be reckoned as movablesThis passage has been incorporated by Walter Pereira in his Laws ofCeylon (2nd ed.) p. 82,
Maasdorp (Institutes of South African Law. 5th ed., p. 5) on the authorityof this passage in van der Keessel and of Voet 1.8.20 and Schorer Note 55states: —
“A similar distinction also applies to actions, which are eitherpersonal actions, that is actions in personam, or real actions, that is,actions in rem. A personal action is regarded as a movable, eventhough it may aim at acquiring the ownership of a thing, and thatwhether the thing is movable or immovable, for the action is based notupon a jus in rem or real right to the thing itself, but upon a jus inpersonam or personal claim against the person sued. An action in remon the other hand, being based upon the jus in rem or real right over orto a particular thing, will vary in its nature according as it aims atmovable or immovable property, being movable in the former case andimmovable in the latter ”,
8 Ceylon Law Bee. 110.
Thornton v. Velaithan Chetty.
I think the reference should be to Voet 1.8.21 which runs as follows : —
“ De actionibus quamvis multis placuerit, eas conditions rei ad quant,tendunt aestimandas esse, atque adeo tendentes ad rent, mobilem mo bilibusad rem vero immobilem immobilibus esse annumerandas . . . .Juris tamen rationibus convenientius arbitror, inter actionis in rem & inpersonam distinguendum esse. Si enim in personam actio sit, mobilemearn judicandum puto, sive ad rem mobilem sive ad immobilem ea tendat;sive ad impetrandum rerum mobilium immobiliumve dominium, sive adusum earumdem aut simile quid obtinendum, comparata sit, veluti emtivenditi, locati conducti, commodaii,
I have already held that what the defendant had was an action inpersonam under the deed PI. I further hold that this right was movableproperty. It follows that as the procedure adopted in this case was thatrelating to movable property, the seizure and sale in this case werecorrectly effected and there has been no irregularity or illegality. Thelearned District Judge rested his finding on a passage in Chittaley’s CivilProcedure Code to the effect that an equity of redemption to a mortgagehas been held in India to be immovable property and the learned DistrictJudge considered that the present right was similar. A decision withreference to a right under a system of law which is different to the Roman-Dutch law can be of little assistance to us. The rule in India depends onthe conception which the Indian law shares with the English law that anequity of redemption is regarded as an estate in the land, vide ParashramHarlal v. Govind Ganesh Porgaumkar In this case we are concerned.vith the Roman-Dutch law. and the English conception of estates in landhas no place there.
I set aside the order appealed from of January 24, 1938, and confirmthe sale of May 13, 1937. The appellant will have the costs of the inquiryand of the appeal.
Maartensz J.—I agree.
DIAS v. ALAHAKOON et al