WiJEYEWARDENE J.—Fernando and Jayasekera.
1944Present: Soertsz and Wijeyewardene J«T.
PERN ANDO, Appellant, and JAYASEKERA, Respondent.
284—D. C. Kalutara, 23,345.
Contract—Agreement to re-transfer land by vendee—Payment of purchase pricewithin stated period—Valid tender essential to cause of action.
Where the defendant purchased a land from the plaintiff subject toan agreement to reconvey the land on payment of the purchase pricewithin a stated period,—
Held, (in an action by plaintiff for a re-transfer), that valid^f'tenderof the sum' within the period is essential to plaintiff’s cause of action.
A PPEAL from a judgment of the District Judge of Kalutara.
L,. A. Rajapakse, for plaintiff, appellant.
E. B. Wikremanayake (with him H. Wanigatunge), for defendant,respondent.
Cur. udv. vult.
May 22, 1944. Wijeyewardene J.—
This action was filed in November, 1942. The material allegationsin the plaint were : —
Paragraph 2.—The defendant lent to the plaintiff who borrowed fromthe defendant the sum of Rs. 150 and ,t.he plaintiff agreed tomortgage with the defendant her half share of the land calledGorakagahawatta …. for the payment of the saidsum with interest thereon at 16 per cent.
Paragraph 3.—The defendnat fraudulently obtained her cross markto a deed of transfer bearing No. 741 dated October 29, 1937—(D 3)—-in the defendant’s favour and when she protested hegranted to the plaintiff writing dated October 29, 1937 (P 1),agreeing to hold the same in .trust till the payment, of theamount and to convey and to cancel the said deed on paymentof the sum of Rs. 157 (Rs. 7 being the cost of the said deed)with interest thereon at the rate of 16 per cent.
Paragraph 4.—The plaintiff tendered to the defendant the amountdue from her but he fraudulently declines to cancel the saiddeed or to be re-transfer the said premises to the plaintiff.
The amount due under the agreement P 1 at the time of the actionwas, according to the plaintiff, Rs. 287. The plaintiff alleged that thedefendant had wrongfully cut down some trees on the land and assessedthe damages sustained thereby at Rs. 60. Setting of this sum of Rs. 60against the sum of Rs. 287 the plaintiff brought into Court Rs. 227and prayed for (a) declaration of title in respect of the half share of theland and (b) cancellation of the deed D 3 or an order on the defendantto execute a conveyance in her favour for the half share of the land.
WXJEYEWABDENE J.—Fernando and Jayaaekera.
The defendant filed answer disputing the plaintiff's right to the reliefsasked for and denying specifically the averments iii paragraph 4 of theplaint. He further questioned the plaintiff's right to set off any sumalleged to have accrued to her by way of damages against the amountdue in terms of P 1.
The evidence led by the plaintiff fails entirely to prove the allegationin paragraph 3 of the plaint that the defendant obtained her cross markto the deed 3D 3 fraudulently. That evidence serves only to establish thefact that the defendant was at first willing to consider her proposaltbatvhe should lend her Rs. 150 on a mortgage, but subsequently changedhis mind- and refused to enter into such a transaction and requestedthat the property should be sold to him. In compliance with thatnequest the plaintiff executed deed ID 3 and the defendant then gavean informal agreement P 1 agreeing to re-transfer the property within acertain time.
The document P 1 is open to some suspicion owing to certain erastiresand alterations. I would refer to one alteration. As the documentstood before that alteration, it was an agreement by the defendant totransfer the property within four years. The word “ four ” has beenaltered to “ six ” but the alteration has not been initialled by thedefendant. The defendant who gave evidence stated that the documenthad the word “ four ” when he signed it and that he did not consentat any time to the period being altered from four years to six years.I may add that the document P 1 or a copy of it was not filed with theplaint as required by section 50 of the Civil Procedure Code and thedocument was listed about five months after the institution of the action.
In this case it was an all-important matter to ascertain whether theagreement was, in fact, for four years or six years. If the agreementwas for four years the plaintiff’s action must necessarily fail, as theplaintiff's son who was the only witness who gave evidence on this pointstated that .the first time the plaintiff asked for a re-transfer was “ abouta year ” before he gave, evidence in Court in July, 1943. That wouldshow that the re-transfer was asked for in or about July, 1942, after theexpiry of four years from the date of P 1. The failure of the defendantto accede to that request could not give the plaintiff a cause of action,as in agreements of this nature time is of the essence of the contract—Jeramias Fernando v. Perera l.
Unfortunately, the District Judge has not recorded his finding on thisimportant question but has held against the plaintiff on the groundthat P 1 was not notarially attested and was not, therefore, bindingon the defendant. Mr. Rajapakse who appeared for the plaintiff -appellant, argued that the defendant held the land in trust for the plaintiffand that the judgment in Jonga v. Nanduwa 2 which was delivered afterthe decision in this case, was an authority against the view taken by theDistrict Judge. Now the only trust pleaded in this case is the trustalleged to arise on P 1 which is merely an agreement to re-transfer by avendee to a vendor on receipt of a sum of money. Though the DistrictJudge has not referred to any authorities in his judgment he appears1 (1926) 28 N. L. R. 183.2 (1944) 45'N. L. R. 123.
WUE YEWARDENE J.—Fernando and J ay as eker a.
to have sought to follow in this ease the Privy Council decision in Adai-cappa Ghetty v. Garuppen Ghetty x. I do not think it necessary to considerwhich of these authorities governs this case, as there is another ground-on which the present appeal could be decided.
According to the plaintiff’s son, whenever the plaintiff went to meetthe defendant about the transfer, she could not meet him. On none ofthese occasions did the plaintiff take any money with her to be tendered.The amount that has been brought to Court is clearly less than theamount due under P 1. The plaintiff cannot seek to set off against theamount actually due, a sum of money alleged to be due to her as un-liquidated damages when there is a dispute between her and the defendantwith regard to his liability to pay any damages. As no valid tender hasbeen made at any time, even within six years, the plaintiff’s action mustfail.
1 would dismiss the appeal with costs.
Soertsz J.—I agree.
(1921) 22 N. U. R. 117
FERNANDO Appellant , and JAYASEKERA, Respondent