111-NLR-NLR-V-54-K.-MUTHUVEL-et-al-Appellants-and-N.-A.-MARKANDU-et-al-Respondents.pdf
462
HOSE C.J.—Muthuvel v. JHarkandu
1952Present: Rose C.J. and Gunasekara J.
K.MUTHUVEL et al., Appellants, and N. A. MARKANDU'et al., Respondents
S. C. 156—D. C. Point Pedro, 3,500
Contract—Transfer of property—Option to repurchase—Necessity for tender of pricefor re-conveyance.
Where property is transferred subject to the condition that if the transferorpays a certain sum within a specified period the transferee should execute a re-transfer of the property, it is unnecessary for the transferor to tender the moneyif, prior to the expiry date of the option, the transferee repudiates the transferor’sright to a re-transfer.
A.PPEAL from a judgment of the District Court, Point Pedro.
C. Thiagalingcvm, Q.C., with H. W. Tambiah and D. Vivehanandan,for the plaintiffs appellants.
B. Wihramanayake, Q.C., with H. Wanigatunga, for the 1st, 2nd and3rd defendants respondents.
Cur. adv. vult.
November 19, 1952. Rose C.J.—
The plaintiff-appellants, who are husband and wife, ask that the first,second and third defendant-respondents be required to execute aninstrument conveying a certain land to the second appellant who is the■wife of the first appellant.
It is common ground between the parties that the land in questionbelonged to the fourth and fifth respondents who are husband and wife ;that it was transferred on deed No. 4056 of 26th May, 1947, by the fourthrespondent to the first, second and third respondents, subject to the con-dition that if the fourth respondent paid a sum of Rs. 3,000 with interestat 12 per cent, within three years from the above date the first to the thirdrespondents were to execute the re-transfer of the said land ; and that on1st February, 1949, by deed No. 421 the fourth respondent assigned byway of dowry to his daughter the second appellant her (4th respondent’s)right to obtain the re-transfer.
The present action was filed on 1st July, 1949, that is to say, some tenmonths before the expiry date of the option. One of the issues in the courtbelow was whether or not the first appellant tendered the money. Thelearned District Judge found that he did not and I would not wish todisturb that finding. The appellants, however, contend that the questionof tender becomes irrelevant in view of the fact that there was a denialprior to the expiry date of the option of the plaintiff’s right to are-transfer.
ROSE C.J.—Muthuvel v. Markandu
463
In this connection the two letters P9 and P14 have relevance, no replybeing received to either letter.
“ P9.
No. 87
N. Appukuddy Mathkandu, Esq.,Vaiththanai,
Valvattiturai.
A. N. Velayutham,Proctor,Valvetturai,20—5—49.
Dear Sir,
I am instructed by my client Sivapackiam wife of Muthuvel ofValvetiturai, to inform you that my client the said Sivapackiam hasobtained an assignment by way of dowry 'of the right to obtain are-transfer of the land called Viththanai in extent 4, J Lms v. c. andreserved in favour of Ramupillai Manickam in deed No. 4056 dated 26thMay, 1947 and attested by S. Appadurai, Notary Public, by virtue of deedNo. 421 dated 1.2.1949, attested by me and executed by the saidRamupillai Manickam.
I am further instructed to inform you that my client will take thenecessary steps to obtain the re-transfer in due course.
I am further instructed to inform you that you are not entitled to re-transfer the said land to the said Ramupillai Manickam or to any oneelse and that in case you do so, an action will be filed against you toobtain the necessary conveyance in my client’s favour.
Yours sincerely,
A. N. Velayutham,
Proctor.
P 14.
Ammal wife of Ramupillai Manickam,Valvetiturai.
A. N. Velaytjtham,Proctor,Valvetiturai,
20.5.49.
Dear Madam,
I am instructed by my client Sivapackiam wife of Muthuvelu ofValvetiturai to inform you that my client the said Sivapackiam hasobtained an assignment by way of dowry of the right to obtain a re-transfer of the land called Viththianai in extent 4, J Lms v. c. andreserved in favour of Ramupillai Manickam in deed No. 4056 dated
464
ROSE C.T.—hdttihuvel v. JS&arkcmdu
26th May, 1947 and attested by S. Appadurai N. P., by virtue of deedNo. 421 dated 1.2.1949 attested by me and executed by the saidRamupillai Manickam.
As my client understands that you are taking steps to purchase theland called Viththanai in extent 4, J T.ma v. c. from certain N. Appu-kuddi Mathkandu, N. Appukuddi Thambirajah, N. Appukuddi Vama-kulasingham of Valvetiturai, I am further instructed to inform youthat my client the said Sivapackiam is entitled to obtain a conveyanceof the said land and that you have no right to buy the said property.
I am further instructed to inform you that in case you obtain a trans-fer of the said land, an action will be filed against you to obtain a declara-tion that your rights, if any, are subject to the right of my client toobtain a transfer on payment of a sum of Rs. 3,000 and interest and to-obtain the necessary conveyance.
Yours sincerely,
A. N. Velaytttham,
Proctor.”
Moreover the answer of the first to the third respondents filed on 15thSeptember, 1949, contains inter alia the allegation that they had receivedno notice of the assignment to the second appellant by the fourthrespondent.
I agree with the contention of learned Counsel for the appellants that the-answer, taken as a whole, amounts in effect to a repudiation of the appel-lants’ right to a re-transfer, in that the position taken up by therespondents is inconsistent with the acceptance of that right.
It would seem, therefore, that the appellants have successfully broughtthemselves within the principle1 that when a party to an agreement tore-transfer repudiates at a point of time prior to the expiration of theperiod of the option, it is unnecessary for the other party to allege orprove tender.
That being so, the appeal must be allowed, the judgment of the DistrictCourt set aside, and judgment entered for the appellants as prayed for,on condition that they deposit in Court on or before 31st January, 1953,a sum of Rs. 3,780.
In that event the 1st, 2nd and 3rd respondents will pay the costs of thisappeal and of the proceedings in the Court below.
In the event of the appellants failing to deposit in Court the said sumof Rs. 3,780 on or before the said date, the appeal will be dismissed withcosts, payable to the 1st, 2nd and 3rd respondents.
Gitnasekaea J.—I agree.
Appeal allowed,
A-ppuhamy and others v. Silva, 17 N. L. R. 238 ; Bailsham 7—page 199.