071-NLR-NLR-V-19-FERNANDO-v.-PERIS.pdf
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Present: Wood Benton O.J. and De Sampayo J.FERNANDO, v. PERIS.
422—D. C. Negombo, 11,184.
Specificperformance—Agreementtosellland withina specified time—
Registration—Subsequent sale to a third party.
Aperson in' whose favouradeedof agreementfor sale of a land
wasexecuted by its ownerisnotby the mereregistration of -such
deed in a position to enforce specific performance against a thirdparty, to whom the land was sold subsequent to such registration.
HE facts are set out in the judgment.
A. St. V. Jayewardene, for second defendant, appellant.
i
Samarawickreme, for plaintiff, respondent.
Cur. adv. vult.
November 20, 1916. De Sampayo J.—
This case raises a point of law under the following circumstances.The first defendant was entitled to an undivided share of a landcalled Kosgahawatta, which was tle subject of the partition action
C. Negombo, No. 9,092. By deed No. 25,519 dated November27, 1914, and registered on December 10, 1914, the first defendantagreed, in consideration of a sum of Rs. 500, of-which he receivedRs. 60 at the execution of the deed, to sell and convey to the plain-tiff, within one month of the date of the decree in the partitionaction, the divided portion which might be allotted to him in thepartition. The decree was entered in the action on January 20,
1916.
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1816.
D» SampayoJ.
Fernandor. Peris
1915, but two clays later the first defendant, instead of conveying tothe plaintiff, in accordance with the agreement, the portion allottedto him, executed in favour of the second defendant the deed ofsale No. 9 dated January 22, 1915. The plaintiff impeaches thisdeed as fraudulent and without consideration and claims specific per-formance, and in the alternative he prays for judgment for Rs. 60paid in advance, and a further sum of Rs. 200 as damages againstthe first defendant. Certain issues relevant to the question of fraudwere suggested at the trial, but the District Judge did not inquireinto or decide those issues, but disposed of the case on the issuewhether the deed of sale No. 9 in favour of the second defendant wasvoid by reason of the registration of the deed of agreement to sell thelaud to plaintiff. Relying on the decision in Carimjee Jafferjee v~Theodoris,1 he held that the deed No. 9 was void in consequence ofthe prior registration of the deed of agreement, and gave judgmentfor the plaintiff in accordance with his prayer for a specific perform-ance. Prom this judgment the second defendant has appealed.
The facts of the case of Carimjee Jafferjee v. Theodoris reliedon by the District Judge are somewhat similar to those of thepresent case, and I think the District Judge correctly states theeffect of that decision. The registration of a deed may be notice tothe world of the existence of it, but X am not prepared to agree withthe holding that such constructive notice of an agreement to sellipso facto makes void a subsequent sale by the owner to a thirdparty, and that specific performance may be claimed as againstsuch third party. In Mathes Appuhamy v. Raymond,2 which doesno appear to have been cited or considered in Carimjee Jafferjee v.Theodoris, Bonser C.J. and Withers J. doubted whether under ourlaw specific performance could be granted in a case where the vendorhad by an actual sale and conveyance to a third person put it outof his power specifically to perforin the contract. Mr. Samarawickreme,for the plaintiff, suggested that the learned Judges in thatcase had misapprehended the Roman-Dutch Law on the subject,and cited Nathan’s Law of South Africa, vol. II., s. 840. But Nathanibid, and Kotze’s Note to Van Leeuxuen. vol. II., p. 141, showthat the Roman-Dutch authorities are not agreed as to the extentto which the Court will grant relief by specific performance in caseof breach of contract. In South Africa, where Van Leeuwen has beenmore generally followed, the practice as to specific performanceappears to have approximated to the English law. The passagein Nathan relevant to this case is:“If after a sale of property, not
followed by delivery, the vendor parts with it to a third personwho knew of the sale to the first purchaser, the law deems it to bein the vendor’s power to make specific performance in favour ofthe first purchaser, and will order rescission of the sale and delivery bythe second purchaser, who knew of the sale, to the first purchaser.”i (1898) 5 Bal. 20.3 (1897) 2 N. T„ R~ 270.
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Kotze in his Note to Van heeuwen, referring to a South Africandecision, also says: “ Where the vendor having sold to A afterwardssells and delivers the same thing to B, if B knew of the first sale toA, the latter can claim rescission and restitution of the thing sold toB and pray that it be delivered to him.” It wall be noticed that inboth these passages the case stated is that of a complete sale to thefirst purchaser, only delivery remaining to be made, and I doubtwhether even in South Africa the doctrine will be applied,, at leastwithout some modification, to a cose where the owner has onlyagreed to sell to one person, and has actually sold and conveyed toanother. The text of Van Leeuwen himself do^s not seem to gothat length. For he states an exception, thus: ” if it be in hispower ” or “ unless it is not in his power to do so, in which cose itwill suffice if he make good the, loss ” (2 Kotze 141). In harmony withthia is the following passage from Pothier, s. 160, <quoted by Maas-dorp, vol. III., p. 153: " Where the defendant is merely in default-in performing his obligation, either because he has incautiouslyengaged to perform something which it was not in his power toaccomplish, or because he has afterwards imprudently disabledhimself from performing his engagement, the debtor is liable on’lyfor the damages and interest which might have been contemplatedat the time of the contract.” Neither in Van Leeuwen nor. so foras I can see, in any other Roman-Dutch authority, is there anythingexpressly extending the remedy of specific performance to the caseof an actual purchase by a third person, and what is stated inNathan and Kotze's Note appears to be a development in SouthAfrica. I do not think that we are obliged to accept that extendeddoctrine. The learned -Judges in Mathes Appuhamy v. Raymondrefused to do so, and further deprecated the adoption of ” thedoctrine and practice of the English Court of Chancery withrespect to specific performance, with all the subtleties and refine-ments as to notice which have been evolved by the ingenuity ofsuccessive generations of Judges of that Court.” This Court haspreferred the authority of Voet 19, 1, 14. and has been consistentin its refusal to grant specific performance on mere constructiveknowledge on the part of a subsequent purchaser, and the onlyexception allowed has been in cases where there has been fraud.This exception is founded on good reason, inasmuch as, where thereis fraud, the former owner still remains the true owner, and is rightlyconsidered to be in a position specifically to perform his contract.I need only refer here to Wichremesinghe v. Abeyewardenewithwhich I may say I entirely agree. I therefore think that thejudgment appealed from is erroneous with regard to the specificground on .which it is based, and ,that before giving judgment againstthe second defendant the learned District Judge should have inquiredinto and decided the issues relating to the question of fraud.
me.
3® Sampato
* J»
h'orruxndoPeris
> f1914) 17 N. I.. R. 171 and 172.
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1916.1 would set aside the decree, and remit the case for further trial
Dk Samfayo as above indicated. The plaintiff should pay the costs of the lastJ. day of trial and of this appeal, and all other costs should be costsfWncfo in .the cause.ptria Wood Runton O.J.—I agree.
Sent back.