165-NLR-NLR-V-48-GUNAPALEE-Appellant-and-JORANIS-APPUHAMY-Respondent.pdf
G-unapalee v. Joranis Appuhamy.
527
1947Present: Canekeratne and Dias JJ.
GUNAPALEE, Appellant, and JORANIS APPUHAMY,
Respondent.
465—D. C. Kegalla, 3,089.
Contract—Sale of land with option to re-purchase—Conditions necessary for
obtaining re-transfer.
Plaintiff sold a land to the defendant who undertook to re-transferit if the plaintiff paid within a certain period the sum of Rs. 830"together with expenses incurred for putting up additional buildingson the said land
A few days before the expiration of the period. plaintiff tenderedRs. 830 and requested the defendant to re-transfer the land to her.
There was nothing to show that the defendant at any time informedthe plaintiff what the expenses of the additional buildings put up byhim came to.
Held, that there had been no failure on the part of the plaintiff and thatthe defendant was bound to execute a re-transfer.
^ PPEAL from a judgment of the District Judge, Kegalla.
Renganathan (with him C. Chellappah), for the plaintiff, appellant.
£. R. WijayatilaJce (with him R. S. Waruisundera), for the defendant,respondent.
48/40
528CANEKERATNE J.—Gonapalee v. Joranis Appuhamy.
October 1, 1947. Canekkratne J.—
The plaintiff sued the defendant to obtain the re-transfer of a landwhich she had sold to the defendant about seven years before. Accordingto the terms of the agreement the defendant undertook to re-transfer theland to the plaintiff if the plaintiff paid him Rs. 830, “together withexpenses incurred for putting up additional buildings on the said land".A few days before the expiration of the period she requested the defendantto re-transfer the land to her and tendered Rs. 830. He refused to executea re-transfer. The plaintiff followed this up by instituting an action ;in the answer the defendant stated that he put up the new buildings at acost of Rs. 500, and as the plaintiff has only attempted to pay the sum ofRs. 830, the defendant refused to accept that amount only. There isnothing to show the defendant at any time informed the plaintiff whatthe expenses of the additional buildings put up by him came to. Theonly person who would have known the expenses of putting up thebuilding would be the defendant and it is part of his obligation to informthe plaintiff at the time the tender was made what the expenses amountedto. The rule generally is that where a party stipulates to do a thingwhich lies within the peculiar knowledge of the opposite party, thennotice must be given to him. There has been no failure on the part ofthe plaintiff and the defendant is bound to execute a re-transfer and if hefails within such time as is specified by the court to do so the court willtake steps to have a re-transfer of the land in favour of the plaintiffexecuted.
The plaintiff is entitled to the costs of the trial and the costs of the appeal.Counsel for the appellant states that they are prepared to pay a sum ofRs. 150, which seems to be the amount spent by the defendant in puttingup the building.
If the plaintiff does not pay the sum of Rs. 150 within the period of twomonths of the record going back to the District Court, the defendantwill be entitled to apply for a writ of execution in respect of that sum.
Dias J.—I agree.
Appeal allowed.