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Present: Lyall Grant J. and Jayewardene A.J.
JEREMIAS FERNANDO et a1. v. PERERA et al383—D. C. Kalutara, 12,115.
Agreement to rcconvey within a limited time—Jetioii for specific per*formancc—Tender of price.
Where a vendee agrees with his vendor to retransfer the laudswhich he has purchased, on the payment of a certain sum ofmoney by the vendor, within a definite period of time,—
Held, that the tender of the price was a condition precedent tothe performance of the promise, and that- time was of the essenceof the contract.
^^PPEAL from a judgment of the District Judge of Kalutara.
Driebcrg, K.C. (with him J. S. Jayewardene), for plaintiff,appellant.
H. V. Perera, for 1st. to 3rd defendants, respondents.
Soertsz (with him G. J. C. Jansz), for 4th defendant, respondent.
September 8, 1926. Lyall Grant J.—'
The facts in this case are fully set out in the judgment from-which this appeal is taken, and are not in dispute. The plaintiff■sued the respondents for the retransfer of certain lands. Strippedof various complications which do not affect the points at issue,the facts are that A sold certain lands to B for a sum whichrepresented the debt which A owed to B. By a separate deedof the same date it was agreed that on repayment of the price with■interest thereon at the rate of 18 per cent., or 15 per cent, if theinterest be paid annually, within a period of three years B shouldretransfer to A. A was to remain in possession during the threeyears. This deed also contained a clause that A should possess theland for a term of three years. A remained in possession for threeyears and then handed over possession to B’s assign, the presentdefendant-. A died nine months later and her children the presentplaintiffs asked the defendants to retransfer the land.
The defendants say—
That the period of redemption had expired; and
That the plaintiffs have not tendered the of price of the land.
There was an issue as to whether tender of the price was necessary,and another as to whether the request for a retransfer was made hrtime.
The learned District Judge did not consider it necessary toanswer the issue with regard to the tender as he held that theplaintiffs were estopped from bringing the action for a retransfer-owing to the conduct of A in leaving the premises without protestat the expiration of the three years.
The question as to whether time was of the essence of the contractwas argued at considerable length, but it seems to me that the casecan he decided on the question of tender.
The plaintiffs ask for a specific performance of a contract. Onemust examine closely what the contract is they seek to enforce.They say it is a contract to reconvey, but even assuming that timeis not of the essence of the contract, the agreement is to reconveyonly upon the happening of a certain event. That- event is the-payment of a certain sum of money. Unless the Court is satisfiedthat the plaintiffs have fulfilled their part of the contract, so faras it is possible for them to do so, namely, by tender of the price,it seems obvious that it cannot order the defendants to performtheir part of the contract inasmuch as the condition precedentto such performance has not been fulfilled. There is not a scrap ofevidence that the plaintiffs have even offered the price of the land tothe defendants, and the defendants deny that any such offer hasbeen made. In such circumstances I do not think it will he properfor the Court to decree a specific performance.
In Babaliamy v. Alexander,1 it was assumed that tender was anecessary preliminary to an action of this nature. The sameassumption was made in Appuhamy v. Silva.2 In that case nodoubt it was held that the defendant by announcing his refusal toaccept the money had waived his right to a formal legal tender.There is no evidence here of any such waiver. It is not enoughfor the plaintiffs to say that it was of no use to tender the moneybecause they knew that the defendants would not accept it.
On this ground alone the appeal must fail.
The case of Bahahannj v. Alexander (supra) is also an authorityfot* the proposition that in a transaction of this nature time is ofthe essence of the contract. The facts in that case appear to beindistinguishable from those in this case and the decision in thatcase has never been overruled.
Mr. Drieberg for the appellants cited a large number of Englishcases for the purpose of showing that in cases similar to this timelias been held not to be of the essence of the contract.
> (1896) 2 N. L. R. 169.
2 (1914) 17 N. L. R. 238.
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These cases, however, proceed, upon the assumptions of the Englishcommon law and the rules of equity, and it has to be consideredwhether the same rules apply to the Roman-Dutch law as modifiedby section 92 of the Evidence Ordinance. Section 92 of ourEvidence Ordinance corresponds to section 92 of the IndianEvidence Act, and cases were cited to show that in India the strictwording of that Act has been held to be subject—when a question■of time was mentioned in a contract—to the rules which prevailin England.
The Roman-Dutch law, however, has its own rules in regard to theconstruction of agreements and repurchase. Voet (Bk. 18, Tit. 3.para. 8) says there is no limit of time within which the justredivicndi prescribes if the liberty to redeem has been given i«perpetuum by the pact. It seems to be assumed that if the pacthas limited this right the limitation must prevail. In this paragraphVoet assimilates the right of repurchase to the right of freeing apledge, and he says in Bk. 20, Tit. 6, para. 10, that a pledgefor the debt of another will be free from the vinculum pignorisat the expiry of that period, “ for a limited concession must producea limited effect. ”
The important question to which one must address one's mindwhether one proceeds according to the English rules or accordingto those of the Roman-Dutch law is what was the true intention•of the parties as far as it can he ascertained from a perusal of thedocuments themselves.
Applying the same principles of law as were applied by the PrivyCouncil in the case of Balhishen Das v. W. F. Lcgge 1 and con-struing section 92 of the Evidence Ordinance in the same way inwhich section 92 of the Indian Act was construed in that case, I havecome, to the view that the facts here are substantially" differentfrom the facts in that case.
In Narasingerji Jyanagerji r. Paringanti Parthasaradki Rayana-mGam 2 a transaction was held to be a conditional mortgage andthe time mentioned in the deed providing for a reconveyance wasallowed to be extended. In that case, however, the Privy Councilheld that the intention to constitute a conditional mortgageclearly appeared on the face of the deeds.
In the present case the points most favourable to the plaintiffsare that the vendor was allowed to remain in the premises after theisale without the payment of any sum in the name of rent. Whattook the place of rent was the interest which was stipulated to bepaid on the sum of Rs. 5,500 on payment of which the veudorcould demand a reconveyance. It would appear from the docu-ments that if the vendor did not choose to ask for a reconveyance,no rent would be chargeable for the time during which she remained> 1. L. R. 22 Alt. 149.2 47 1. L. R. Mad. 729.
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in possession. This somewhat curious arrangement would seemto favour the plaintiffs' contention that the deeds taken togetherwere intended to operate as a mortgage. On the other hand clause 7of the agreement provides that at the expiration of the term ofthree years the vendor should quit the premises and hand overpossession to the vendee, and this is what actually happened. Thereis a further provision in clause 8 of the agreement that after theexpiration of the term of three years the deed of agreement shouldbe considered null and void and of no effect.
It seems to me quite clear that the intention of the parties wasthat the right to demand a reconveyance was to be strictly limitedto three years- from the date of the conveyance. The facts pointto the vendor having understood her contract in this sense. Therewas no obligation on the vendor to pay either the principal or theinterest, and it is obvious that she would not have been entitled to-remain on the land indefinitely without payment.
I think the decision of the learned District Judge that time was-of the essence of the contract should be affirmed.
The appeal is dismissed with costs.
Jayewardene A.J.—I entirely agree.
JEREMIAS FERNANDO et al. v. PERERA et al