105-NLR-NLR-V-57-G.-P.-KODIKARA-Appellant-and-S.-A.-FERNANDO-Respondent.pdf
1954Present : Rose, C.J., and Gratiaen, J.
G. P. Iv OP T TvARA. Appellant, and S. A. FFRNAXPO, Respondent■S. C. 431—D. C. Negombo, 15,730 L
Contract—Stipulation in favour of third party—Validity thereof—Ttoman-Dutch Laur,
Under Roman-Dutch law a stranger to a contract is entitled to claim thebcneGt of a stipulation made in his favour. This rule is subject only to the' .qualification that until the benefit stipulated for has been accepted by him. hecan be deprived of it by agreement between the contracting parties withoutreference to him.
4’S
GKATJAEX, J.—Kcdikttra v. Fernando
.AlPPEAL from a judgment of.the District Court, Negombo.•
77. IF'. Jayeuardcne, with J). Ji. P. Ooonelillekc. for thcplaintifTappellant.
3/. 7. 37. Haniffa, with 37. II. 37. Naina Marikar, for the defendant,respondent.
Cur. adv. vult.
_fay 20, 1954. Gratia ex, J.—
This action relates to a property which Lxicia Fernando had donatedto her grandson Joseph Fernando on 11th August 1945 subject to (1) alife-interest- in herself and (2) a condition that the donee, “ his heirs,executors, administrators and assigns ” M ould sell the property to theplaintiff “ or his heirs ” for a consideration of Rs. 350 “ at any time thathe demands within a period of five years from the date hereof” {P 2).Joseph Fernando accepted the gift and the condition attaching to it. –
Py a conve3'anee P3 dated 27th September 1945 Lucia and Joseph,Fernando purported to sell the property to the defendant (who is Lucia’s-son) “ to have and to hold the same absolutely and for ever ”. Therecan be no doubt that P3 operated effectively to transfer Lucia’s life-interest as well as the right, title and interest which had previously passedto Joseph under P2. The question is whether or not the conveyance was-subject- to the original condition attaching to the grant- in favour of Josephand his “ assigns ”.
On 24th April 1950 the plaintiff instituted this action against thedefendant claiming that the defendant (as Joseph’s successor-in-title)was under an obligation to sell the property to him for Ps. 350 in termsof the condition stipulated for his benefit in P2.
The defendant pleaded by way of defence that he was under no contrac-tual obligation to sell the property to the plaintiff. As I understand therecorded submissions made on bis behalf at the trial, it- was argued thatthe stipulation in P2 was bad for want of mutuality, and that onlyLncia (but not the plaintiff) had a remedy to enforce tlie contract againstJoseph (but not against the defendant).
The rights and obligaS ions of the part ies under P2 and P3 were governedIn- the Roman-Dutch law, under which system a stranger to a contractis entitled to claim the benefit of a stipulation made in bis favour providedthat he accepts it- within the prescribed period—Mutual Life InsuranceCo. of New York v. Hols L Tin's principle has been recognised by theCourts of this country —Jinadasa v. Silva – and Marthelis Appulutmy v.Peiris 3. The rule enunciated in these oases is subject only to the qualifi-cation that-, until the benefit stipulated for lias been accepted by the thirdparty, he can be deprived of it by agreement between the contractingparties without reference to him — 1 'an dcr Plank v. Olio*. Watermcyer,C.J. states that the promisor can also be released unilaterally by the
~ (1910) 47 .v. r.. n. rv.
4 (1912) S. A. A. O. at 3-51.
promisee from Ins i-<.u(raclual obligation “ a l any lime before the lliirdparty’s inchoate light has been perfected by acceptance communicated' to the promisor ”—O.. I. Jt. v. Estate Crewe .
Let ns apply tlicse rules to tlio present case. It is not disjmted that(he plaintiff had, at some stage within tjic five-year period available tohim, accepted the benefit of (he stipulation in his favour contained in thedeed of donation P2. The precise date of acceptance was, however,not investigated in the lower Court because it was not material to anyof the issues framed at the trial. Prima facie, therefore, the plaintiffis entitled to enforce performance of the obligation as against the defen-dant who is the successor-in-title of Joseph Fernando.
1 appreciate that the defendant had also pleaded in his answer that1 lie contract had been “ rescinded by the parlies This defence, however,was not put in issue at the trial and, even if the terms of the conveyancecould fairly be regarded as incorporating (by necessary implication) arescission of the earlier contract, the defendant has neither pleaded norproved that such rescission took place before the plaintiff had communi-cated to Joseph Fernando his acceptance of the benefit of the stipulationmade in his favour in P2.
W'c have been invited to send the ease back for a re-trial on this addi-tional issue. In m3' opinion, however, the defendant should bo refusedthis indulgence. The action was instituted over four years ago, and mustbe decided 011 the issues which the parties were content to raise at theoriginal trial. It would bo most unsatisfactory to permit them to leadoral evidence at this stage concerning events which took place in 1915between the dates of execution of the conveyances P2 and P3. Besides,there is no reason for supposing that Lucia would have stipulated for avaluable benefit in the plaintiff's favour unless there had been somecontemporaneous agreement between all the parties for the insertion ofthe relevant clause in P2.
The learned District Judge dismissed the plaintiff's action because theconvejnuicc P3 in favour of the defendant did not specificalty incorporatethe earlier condition contained in P2. In my o|)inion, this omission wasnot fatal to the plaintiff’s claim which was in truth based on the earliercontractual obligation undertaken by Joseph Fernando on his own behalfand on behalf of his “ assigns ”. The conveyance P2 was duly registeredfind must be assumed to have been brought to the defendant’s notice atthe time of his purchase. In the result, the only valid defence whichmight have been available to the defendant was that of “rescission beforeacceptance ”, but there is no material on the record which enables us tohold in the defendant’s favour on this point.
I would allow the aj^pcal with costs in both Courts, and enter a decreeIn favour of the plaintiff as prayed for in paragraphs (a) and (b) to thepra3*er to the nlaint.
Bose, C.J.—I agree.”
A ppeal allowed.
» (1943) S. .4..4. D. C5G at 674./