KANAGAMMAH et al., Appellants, and KUMARAKULASINGHAM et al., Respondents

128-NLR-NLR-V-66-KANAGAMMAH-et-al.-Appellants-and-KUMARAKULASINGHAM-et-al.-Respondents.pdf


Kanagamrnah v. Ktimarakulasinghavi
529
1959Present:Weerasooriya, J., and T. S. Fernando, J.
KANAGAMMAH el at., Appellants, and KUMARAKULASTNGHAM
et al., Respondents
S. C. 70A-B—D. C. Point Pedro, 5148/L
Civil Procedure Code—Section IS—Added 'party—-His position as co-plaintiff orco-defendant—Adjudication between defendants inter se—Effect.
Vendor and purchaser—Sale of immovable property—Difference between a contractof sale and an agreement to sell—Point of time when title passes to vendee—Prevention of Frauds Ordinance {Gap. 57), s. 2—Specific performance—Principles governing the rigJU to claim it—Prescription.
Where a party is added in terms of section 18 of the Civil Procedure Code,the Court may adjudicate on claims arising between such party and a plaintiffor a defendant. The adjudication on such claims will be res judicata betweentbe parties. [Obiter : It is open to a Court to adjudicate upon adverse claimsset up by defendants inter se and unconnected with the claims of the plaintiff.Kandavanam v. Kandasamy (57 N. L. R. 241) and Seneviratne v. Perera(26 N. L. R. 225) referred to.]
Where a person agrees by notarial deed to sellimmovablehroperty to another,the deed does not operate as a sale so as to transfer title, even when delivery ofpossession of the property and payment of the purchase price have been made.Such a deed is not a deed transferring title but is an agreement relating to thefuture transfer of title, and title does not pass until a further notarial deedis subsequently executed transferring the title.
Where an agreement to transfer immovable property provides for analternative mode of performance in lieu of the execution of the transfer,specific performance cannot be insisted upon.
By deed No. 7582 of the 29th September 1942 certain persons (“ the firstpart ”), who were expecting a Crown grant in their favour in respect of a landof which they were already in possession upon a permit from the Crown, enteredinto an agreement entitled “ Transfer Agreement ” with K (“ the second part ”)in accordance with the terms of which they gave immediate possession of theland to K and undertook to convey to him the legal title to it soon afterobtaining the Crown grant. The purchase price was paid in advance by K.It was agreed that if the parties of the first part failed to convey the title afterobtaining the Crown grant, they should pay a calculable sum of money to K tocover the purchase price and all the expenses incurred by him. On the 7thApril 1944, K assigned his rights to his daughter, the 2nd defendant.
On the 16th November 1954, the Crown grant was issued to the parties of thefirst part, among whom were the 1st and 2nd plaintiffs. On the 13th June 1955,the 1st and 2nd plaintiffs, who had become entitled to an undivided two-thirdshare of the land by their own rights under the Crown grant and by gift fromone of the grantees, instituted the present action against the 2nd defendant,claiming from her the title and possession in respect of the two-third share.They brought into Court “ the two-third share of the money due on deedNo. 7582 Subsequently, on the motion of the plaintiffs, the Court addedthe 3rd defendant as a party in terms of section 18 (1) of the Civil ProcedureCode, because he was the successor in title of one of the grantees in respect of thoremaining undivided one-third share. – The 3rd defendant thereupon brought
LXVI-—23
R 3943—1,855 (2/65) '
£
530
WEEKASOORIYA, J.—Kanagam-mah v. Kumarakulasingham
into Court “ one-third share of the money due on deed No. 7582 ” and claimed,as against the 2nd defendant, title and possession in respect of one-third share.No objection was taken to the issues based on the disputes arising between the2nd defendant and the 3rd defendant.
Held, (i) that the 3rd defendant was really in the position of an “ addedparty ”, It was therefore open to the Court to adjudicate on claims betweenhim and the 2nd defendant.
that deed No. 7582 did not constitute by itself a sale of the land trans-ferring ownership, although vacant possession was given to K and the purchaseprice was paid by him. It was simply an agreement for the future sale of theland to be effected by a valid deed of transfer once the Crown grant had issuedin favour of the parties of the first part.
that the provision in deed No. 7582 for the payment of money, shouldthe parties of the first part fail to execute a formal conveyance in favour of K,was in the nature of an obligation the performance of which was alternativeto the primary obligation to execute the conveyance. Accordingly, the2nd defendant, who was the assignee of K’s rights, was not entitled toinsist on specific performance.
that the possession of the land by K and the 2nd defendant under deedNo. 7582 was not adverse to the parties of the first part so as to createprescriptive title.
Appeal from a judgment of the District Court, Point Pedro.
C. Ranganathan, with M. Shanmugalingam, for the 1st and 2ndplaintiff's-appellants in appeal No. 70A.
S. J. V. Chelvanayakam, Q.C., with C. Manohara, for the3rd defendant-appellant in appeal No. 70B.
Walter Jayaioardene, with Nimal SenanayaJce, for the 1st and2nd defendants-respondents in both appeals.
Cur. adv. vult.
May 12, 1959. Wbbrasookiya, J.—
One Velupillai Vallipuram had obtained in 1929 a permit 1D7 from theCrown to clear and bring into cultivation with paddy a certain allotmentof land said to be in extent “ 23 to 32 acres By PI of the 23rd April,1941, the Government Agent, acting on behalf of the Crown, offered tohim a settlement of 14£ acres out of this land (as representing the extentwhich had then been brought under cultivation) on payment of a sum ofRs. 363, which amount was paid by him in May 1941. Vallipuram diedin August 1941, before the issue of the Crown grant in his favour, leavingas heirs two sons Kulasegaram and Sandirasegaram and a daughterChellachy who succeeded in equal shares to his interests in the land.
WEERASOORIYA, J.—Kanagammah v. Kumarakulaeingham
531
On the 29th September, 1942, Kul&segaram, SandirasegaTamand . Chellachy (together with their mother Puthai, the widow of Valli-puram, andMurugesu, the husband of Chellachy) of the first part, enteredinto a notarially attested agreement No. 7582 with one NagamuttuKandiah, of the second part, the subject matter of which was the sameextent of 14£ acres of the land referred to in PI. A translation of thisagreement is P4. It is entitled “ Transfer Agreement ”. Having recited,that Velupillai Vallipuram had paid the purchase price for the land toGovernment, that the Crown grant had not yet been issued and that asum of Rs. 1,000 had been received previously from Nagamuttu Kandiahfor the purpose of improving the land, the agreement proceedsas follows :—
" and as it is necessary to sell this land for the payment of the sameand for paying and settling the debts incurred by the said Vallipuramwe have agreed to sell this land to the second par o for a sum of Rs. 3,000of which amount having deducted a sum of Rs. 1,000 received pre-viously we have this day received the balance amount, that as we havenot got with us the legal deed that we ought to get from the Govern-ment for the purpose of executing and granting a real transfer deedin favour of the said second part, the second part will have to comedown here no sooner we get the said deed and get his deed executedat his expense, that he is entitled to the possession of this land from thisday forth, that he will from this day forth have to effect the necessaryimprovements for the said land i.e., to improve the ground that remainsunimproved and cultivate the ground that has been improved and paythe land tax etc. payable to the Government in due course for thisground . . . , that if we fail to execute and grant a legal transferfor the same no sooner we get a deed from the Government we agreeto pay jointly and severally the sum of Rs. 3,000 paid to us by himtogether with the expenses that would be incurred by him for thisland from this day forth with interest thereon at the rate of 3 per cent,per annum from the date hereof and had entered into an agreementwith him.
I Kandiah the second part have consented to all the conditionsaforesaid and have accepted the same and further agreed to payeither of them treble the amount of the damage that would be sustained^ythemin the event of my failing to fulfil any of the aforesaid condi-tions i i the due times and in default of my paving the same the samemay be recovered from me by any of them. ”
This agreement is signed by all the parties to it and by two witnessesand the attesting notary. One of the questions for decision in appealis whether P4 constitutes by itself a sale of the land or is simply anagreement for the future sale of it to be effected b> a valid deedof transfer once the Crown grant had issued in favour of the heirsof Vallipuram.
512
W BEK A S Q O RTYA, J.—Kanagammah v. Kvmarahulaeingham
By deed P5 (also marked 1D6) dated the 7th April, 1944, NagamuttuKandiah assigned his rights in P4 in favour of his daughter the 2nddefendant as part of her dowry on the occasion of her marriage to the1st defendant. P5 provides for the payment by Kandiah of a sum ofRs. 6,000 as liquidated damages in the event of his failing and neglectingor being incapable of executing a transfer of the land in favour of the2nd defendant within a period of three years from the date of the deed.The value of the land is given in P5 as Rs. 3,000.
After the execution of P4 Chellachy died leaving two daughters, the1st and 2nd plaintiffs. Sandirasegaram by deed of donation P3 datedthe 15th June, 1954, gifted his interests in the land to the 1st and 2ndplaintiffs. On the 16th November, 1954, the Crown grant P2 for the landissued in favour of Kulasegaram and Sandirasegaram, each in respectof an undivided one-third share, and in favour of the 1st and 2nd plain-tiffs, each in respect of an undivided one-sixth share. Kulasegaramdied subsequently leaving as heir his son the 3rd defendant. The 1stand 2nd plaintiffs thus became entitled to an undivided two-third shareof the land and the 3rd defendant to the balance one-third share.
A few months after the issue of the Crown grant P2 Proctor Raja-ratnam acting on behalf of the plaintiffs sent to the 1st and 2nd defendantsthe letter 1D5 dated the 14th February 1955 demanding that theyaccept the sum of Rs. 4,125 said t be money due in respect of the agree-ment P4, and deliver to the plaintiffs peaceful possession of the land.As this demand was not complied with the plaintiffs (of whom the 2ndplaintiff, being a minor, is represented by hei next friend) filed this actionon the 13tb June, 1955, againt the 1st and 2nd defendants for a declara-tion that on payment to them of the sum of R*. 2,765 which the plaintiffsbrought into Court as “ the two-third share of the money due on deedNo. 7582 ” (P4) the said deed is discharged in respect of that share andthat the plaintiffs are entitled to the possession of a two-third share of theland, of which share they prayed that they be quieted in possession.
Subsequently on the motion of the plaintiffs, the Court added the3rd defendant as a party defendant in terms of section 18 (l)of the CivilProcedure Code. The 3rd defendant is a minor and is represented by hismother as guardian-ad-litem. A sum of Rs. 1,375 has been brought intoCourt by him as “ one-third share of the money due on deed No. 7582 ”,and in the answer filed by him he has prayed that the deed be declareddischarged in respect of that share, that he be declared entitled to thepossession of a one-tbird share of the land and that he be quieted inpossession thereof. It is clear that this relief is claimed again*. t the2nd defendant. Issues 15 and 16 which were suggested by the 3rddefendant’s proctor are as follows :—
*'15. Is the 3rd defendant entitle to take possesion of l/3rdshare of the land described in the schedule to the plaint on paymentof 1/3rd share of Rs. 3,000 with interest to the 2nd defendant as statedin deed No. 7582
WEERASOORIYA. J.—Kanagammah v. Kzimarokulasingham533
16. Is the 3rd defendant entitled to a discharge of the agreemententered into on deed Xo. 7582 on payment of the said sum ? ”
The 1st and 2nd defendants filed answer pleading, inter alia, that—
{a) Nagamuttu Ivandiah and the 2nd defendant had spent Rs. 16.5Q0in improving the land ;
the 2nd defendant is entitled to the land and in any event entitled
to obtain a conveyance from the plaintiffs and the other heirsof the grantors on deed No. 7582 :
the 2nd defendant and her predecessors in title had acquired
“prescriptive right and title ” to the land ;
in the event of the Court holding that the 2nd defendant had not
acquired “prescriptive right and title ” to the land she isentitled to obtain an order requiring the plaintiffs to convey-to her their “ l/3rd ” share of the land ;
and they prayed—
“ (1) that the plaintiffs’ action be dismissed.
that in the event of the Court holding that the plaintiffs areentitled to any share of the land the plaintiffs’ next friend be orderedto execute on their behalf an instrument, conveying the said shareto the 2nd defendant and in default the Secretary of the Court beordered to execute such instrument.
that in the event of the Court holding that the plaintiffs areentitled to succeed in their claim the plaintiffs be ordered to pay the2nd defendant their share of the said sum of Rs. 3,000 and Rs. 16,500together with interest at 3 per cent, per annum from 29.9.42.
for costs and for such other and further relief as to this Courtshall seem meet. ”
This answer having been filed before the 3rd defendant was added as aparty, no relief was claimed as against him ; nor was the answer subse-quently amended to claim such relief. But at the trial the followingtwo issues which affected the 3rd defendant were framed at the instanceof counsel for the 1st and 2nd defendants without any objection beingtaken to them :
“5. Has the 2nd defendant acquired a prescriptive right and titleto the land described in the schedule to the plaint ?
6. Even if issue 5 is answered in the negative is 2nd defendantentitled to claim a conveyance from the next friend of the plaintiffsand the 3rd defendant ? ”
The position at the trial, therefore, was that apart from the declarationsand relief claimed by the plaintiffs against the 1st and 2nd defendantsand counter-claimed by them against the plaintiffs, there was also a.contest between the 2nd defendant and the 3rd defendant, each of whom
534
WEERASOOTtlYA, J.—Kanagammah v. Kumarakulasinghmn
claimed a declaration and relief against the other. No question wasraised either at the trial or in appeal whether it is open to one defendantin an action to prefer a claim for relief in this way against anotherdefendant. But in view of the decision of this Court in Kandavanam et al.v. Kandasamy et al.1 we invited the submissions of counsel on the pointat the hearing of the appeal. It was held by Gratiaen, J., in that case(Swan, J., agreeing) that the Ciil Procedure Code “does not empowera Court to entertain substantive claims fcr relief preferred by defendantsinter se ”. Mr. Chelvanayakam, however, referred us to the case ofjSenaratne v. Perera et al.2, which is also a decision of a bench of two Judges.That case would appear to be an authority for the view that it is opento a Court to adjudicate upon adverse claims set up by defendants inter seand unconnected with the claim of the plaintiff, and an adjudication onsuch claims will be res judicata between the adversary defendants aswell as between the plaintiff and the defendants. The judgment ofJayewardene, A.J., in that case (with which Bertram, C.J., agreed)does not appear to have been considered in Kandavanam et al. v.Kandasamy et al. {supra).
In the present case the interests of the plaintiffs and the 3rd defendantare identical. The 3rd defendant could have j' ined in the action as aco-plaintiff but he was not willing to do so. As I have already stated,some time after the action was filed he was added as a party defendantunder section 18(1) of the Civil Procedure Code. Presumably the Courtconsidered that his presence was necessary in order that all the questionsinvolved in the action may be effectually and completely adjudicatedupon. No objection was taken to the issues based on the disputes arisingbetween the 2nd defendant and the 3rd defendant. I think that this isessentially a case in which it is in the interests of allthe parties that thesedisputes, as well as those arising between the plaintiffs and the 2nddefendant, should be adjudicated upon in one and the same action.Although the 3rd defendant has been added as a defendant, if theprocedure indicated in section 18 (2) had been followed his correctdesignation in the action should have been as an “added party”.He is, therefore, strictly not in the position of a defendant. Where aparty is so added there does not appear to be any reason why the Courtshould not adjudicate on claims arising between such party and aplaintiff or a defendant. The adjudication on such claims will, in myopinion, be res judicata between the parties.
The learned District Judge held that P4 was a contract of sale and notu.n agreement to sell. He also held that on the execution of P4 Kandiahbecame the owner of the land, and by his possession and that of hissuccessors, the 1st and 2nd defendant,the latter had acquired prescriptiveright and title as over ten years had elapsed from the date of theexecution of P4 and the filing of the plaint in this case. These findingswere strenuously canvassed by Mr. Renganathan who appeared for theplaintiffs-appellants and Mr. Chelvanayakam who appeared for the
3rd defendant-appellant.x{l955) 57 N. L. R. 241.
* {1924) 26 N. L. R. 225.
YVEERASOORIYA, J.—Kanagammah v. KumaraJculasingham
535
That P4 is not, nor purports to be, a transfer of title to the land is clear.The recitals in it show that as the title was in the Crown the partiesrealised that until the Crown grant had issued in favour of the heirs ofVallipuram they would not be in a position to execute “ a real transferdeed ” in favour of Nagamuttu Kandiah. While, therefore, P4 satisfiesthe requirements of section 2 of the Prevention of Frauds Ordinance(Cap. 57) as regards the formalities to be observed in the execution of adeed affecting immovable property, it is not a deed transferring title butan agreement relating to the future transfer of title. It seems to me thatthis alone is decisive of the question whether P4 is a sale or only an agree-ment to sell. T quote, in this connection, the following passage from thejudgment of Lascelles, C.J., in Fernando v. Pererax : “ In Ceylon, sincethe enactment of Ordinance Ho. 7 of 1840, the transfer of immovableproperty can be made only by means of notarial conveyance. Thenotarial conveyance is thus the c contract of sale and it is by virtue ofthe effect which the law attributes to a notarial conveyance that thepurchaser obtains his right to be placed in possession of the property,and if he is molested in his enjoyment of the property, to call upon hisvendor to warrant and defend his title ”. In Jamisv. Suppa UmmazyEnnis, J., stated : “In Ceylon also the delivery of possession only doesnot operate as a valid transfer, for by Ordinance No. 7 ot 1840, not onlymust the contract of sale be in writing notarially executed, but the transferalso must be in writing notarially executed before it has any force oravail in law. The deed transferring title and not the naked deliveryof possession is now the essential act of transfer under a contractfor the sale of land
In my opinion these dicta support the submission of Mr. Renganathanthat under our law a notarial conveyance transferring title is essentialto a contract of sale of immovable property. I hold, therefore, thatalthough on the execution of P4 vacant possession was given toNagamuttu Kandiah and the purchase price paid by him, the deed didnot operate as a sale and Kandiah did not by virtue of it become theowner of the land.
The District Judge also held that the provision in P4 for the paymentof Rs. 3,000 to Kandiah together with the expenses incurred by him forthe land is a penalty clause inserted for the benefit of Kp ■•diah shouldthe heirs of Vallipuram fail to execute the formal conveyance after theCrown grant had issued. Mr. Renganathan and Mr. Chelvanayakamcontended, however, that this provision is in the nature of an obligationthe performance of which is alternative to the primary obligation toexecute a formal conveyance of the land in favour of Kandiah. On theother hand, Mr. Jayawardene, who appeared for the 1st and 2nddefendants-respondents pressed on us to take the view that this provisionis no more than a pre-estimate of the damages recoverable by Kandiah ifhe elected not to insist on specific performance.
1 {1914) 17 N. L. R. 161.
2 (1913) 17 N. L. R. 33.
536
WEER ASOORIYA. ,J.— Kanagammah v. Kumarakulasingham
The principles governing the right to claim specific performanceof an agreement to sell immovable property were considered by this Courtrecently in Tbaheer v. Abdeen1. and by the Judicial Committee of thePrivy Council in Abdeen v. Thaheer 2 (being the same case in appeal toHer Majesty in Council). The agreement which came up for interpre-tation in that case provided inter alia that in the event of the “ vendors ”failing, refusing or neglecting to execute and cause to be executed a deedof transfer of the land which was the subject matter of the agreementthey shall refund forthwith to the “ purchaser ” a sum cf Us. 12,500deposited as an advance against the purchase price and also pay him asum of Rs.15,000 as liquidated damages. In dealing with this provisionGratiaen, J., who delivered the judgment of this Court, observed : “ Tomy mind, the stipulated return cf the deposit, being pait of the purchaseprice, necessarily implies that the primary obligation to sell is then to beregarded as having come to an enJ. This negatives an intention that thepurchaser could still demand, if be so chose, specific performance".
It seems to me that those observations apply with equal force inregard to the provision in P4 that if the heirs of Vallipurrm fail toexecute and grant a legal transfer of the land no sooner they receive theCrown grant they shall refund to Kandiah the sum of Rs. 3,000previously paid by him as the purchase price, together with allexpenses incurred by him for the land and interest at 3 per cent, perannum from the date of the agreement.
With respect, I am unable to agree with the finding of the learnedDistrict Judge that this provision was inserted for the benefit ofKandiah and is in the nature of a penalty. A clause providing for apenalty would have been differently worded. Generally it is disguised asone for the payment of liquidated damages. As for Mr. Jayawardene’ssubmission that the provision is a pre-estimate of the damages, it is notstated in P4 that what has to be paid is by way of damages.
The evidence of the witness Kanapathipillai, which appears to havebeen accepted by the District Judge, is that when P4 was executed theland was worth Rs. 750 to Rs. 800 an acre. On that basis the purchaseprice of Rs. 3,000 represented orly a fraction of the true value ofthe land. It is not unlikely that in the circumstances the heirs ofVallipuram had the intention to get back possession of the land fromKandiah on refunding to him the purchase price and the expensesincurred by him with interest at 3 per cent, per annum, he having inthe meantime the benefit of the produce of the land.
In my opinion the provision in P4 for the refund of the purchase priceand of the expenses incurred on the land with interest at 3 per cent, perannum is an alternative mode of performance of the agreement whichit was open to the heirs of Vallipuram to adopt in lieu of executinga transfer of the land. As regards the expenses incurred on the land,the District Judge has found that a fair estimate of the value of the
1 (1955) 57 A7. L. R. 1.
2 (1958) 59 N. L R. 385.
WEERASOORIYA, J—Kanagarnmah v. Kumarakulasingham
5 37
improvements effected by Kandiah and tbe 1st and 2nd defendants tothe land would be Rs. 3,000. We are not disposed to interfere with thisfinding, as it is on a question of fact and there is evidence to support it.This view we indicated to counsel in the course of the argument inappeal.
On the basis that P4 did not operate as a sale of the land and that theprovision in it for the refund of the purchase price and expenses incurredon the land is an alternative mode of performance of the agreement, theanswer to the issue of prescription raised by the 1st and 2nd defendantsdoes not present much difficulty. The evidence is that after Kandiahentered into possession of the land in terms of P4, he resided there forsome time and thereafter gave it on lease, first to one Govindasamy, andthen to one Rengasamy. Even after Kandiah had by P5 assigned tothe 2nd defendant his rights under P4, Rengasamy continued to be inoccupation of the land as lessee having, presumably, attorned to the2nd defendant. The 1st defendant in giving evidence stated that he andthe 2nd defendant entered into possession of the land in 1944 (whenPo was executed) and that up to the time of the trial they were inundisturbed and uninterrupted possession of the land and that the3rhad acquired “ a prescriptive title 55 to it. But in any event tbe 1stdefendant could not have acquired any such title as he was acting onlyas agent of the 2nd defendant. As for the 2nd defendant the mereassertion of the 1st defendant that the 2nd defendant had acquired a" prescriptive title ’’totheland is oflittle value in deciding that question.
The obligation on the heirs of Vallipuram to execute a transfer of theland depended entirety on then- obtaining the Crown grant. P4 is silentas to what should happen if the Crown grant was not obtained. ButVallipuram had duly paid the purchase price of Rs. 363 as requested in theletter PI, which amount represented the unimproved value of the 14£acres at the rate of Rs. 2o per acre for which he was entitled to have theland sold to him in terms of clause 3 of the permit 1D7. There wouldhave been no ground, therefore, for the Crown to withhold the grant fromthe heirs of Vallipuram, and the parties appear to have contracted on thebasis that it would sooner or later be issued.
Kandiah’s possession of the land is, thus, referable to P4 under whichhe was entitled to possession until such time as the issue of the Crowngrant. In the event of the heirs of 'Vallipuram then executing atransfer of the land his possession would, no doubt, have become enlargedinto full ownership. On the other hand, if they decided to adopt thealternative mode of performance by refunding the purchase price andthe expenses incurred on the land with interest at 3 per cent, per annum,'it would indeed be anomalous if their claim to get back the land were tobe defeated on the ground that in the meantime Kandiah had by adversepossession acquired a prescriptive title to the land. The correct viewseems to be that Kandiah’s possession of the land under P4 was notadverse to the heirs of Vallipuram, and the 2nd defendant, who is the
538
WEERASOORIYA, J.-—Kanagammcth v. Kumaralcitlasingham
assignee of Kandiah, cannot bo in any better position. In my opinion,the claim of the 1st and 2nd defendants to have acquired a title to theland by prescription fails.
On the conclusions reached by me the plaintiffs and the 3rd defendantwould be entitled to possession of the land and to a declaration thattheir obligations on deed No. 7582 (P4) are discharged, subject to thepayment to the 2nd defendant of the sum of Rs. 3,000 as representingthe purchase price advanced by Kandiah, ana the further sum of Rs. 3,000as representing the value of the improvements effected to the land,together with interest at 3 per cent, per annum from the 29thSeptember, 1942.
The decree appealea from is set aside and the proceedings are remittedto the Court below with the following directions:—
(A1 The plaintiffs and the 3rd defendant will pay into Court, withinthirty days from the date on which the record is received by theCourt, the sum of Rs. 6,000 with interest thereon rt 3 per cent,per annum from the 29th September, 1942, till date of payment.In paying the sum of Rs. 6,000 and interest the plaintiffs andthe 3rd defendant will be entitled to credit in the sums ofRs. 2,765 and Rs. 1,375 already brought into Court by them.
On payment of the sum of money as directed, decree will be
entered—
declaring the plaintiffs and the 3rd defendant entitled to
the possession of the land described in the schedule tothe plaint in the proportion of a one-third share to eachof the plaintiffs and a one-third share to the 3rddefendant ;
requiring the 1st and 2nd defendants forthwith to give up
possession of the said land to th( plaintiffs and the 3rddefendant; and
(iii) declaring that the obligations of the plaintiffs ard the3rd defendant on deed No. 7582 (P41 have been dulydischarged.
On the plaintiffs and the 3rd defendant failing to pay into Court
the sum of money as directed, decree will be entered requiringthem to execute a valid conveyance of the said land in favourof the 2nd defendant within thirty days from the c ate ofthe decree, the expense:' of the conveyance to be borneby the 2nd defendant.
The 1st and 2nd defendants will pay to the plaintiffs and the3rd defendant their cot ts of appeal. I make no order as regards thecosts of trial.
T. S. Fernando, J.—I agree.
Decree set aside.