093-NLR-NLR-V-54-L.-A.-SIYADORIS-et-al-Appellants-and-A.-PETER-SINGGHO-Respondent.pdf
Siyadot'is v. JPeter Singho
393
1952Present: Gunasekara J. and Swan'J.A. SIYADORIS et al., Appellants, and A. PETERSINGHO, RespondentS. C. 544—D. C. Kegalle, 6,107
Vendor and purchaser—Exceptio rei venditae et traditae—Scope of plea.
The exceptio rei venditae et traditae, which is an equitable plea, cannot beset up by a party who relies on a pretended sale, where there was in reality no 'consideration and there was no transfer of possession of the .property allegedto be sold or delivery of the deed. 1
1 (1927) 28 N. L. R. 477.
GTJNASEKAEA J.—Siyadoris v. "Peter Singho
A PPEAL from a judgment of the District Court, Kegalle.
B. WHcramanayahe, Q.O., with Dodwell Ghunawardene and L. Muttu-tantri, for the defendants appellants.
N. E. Weerasooria, Q.C., with G. T. Olegasegarem, for the plaintiffrespondent.
Cur. adv. vult.
December 5, 1952. Gunasekaea J.—
The plaintiff instituted this action on the 28th April, 1949, for adeclaration of title to a one-twelfth share of two plots of land, allegingthat the two defendants disputed his title to that share. The principalissue at the trial was whether the exceptio rei vervditae et traditae wasavailable to the first defendant. The district judge held that it was not,and he gave judgment declaring the plaintiff entitled to the share inquestion. The defendants appeal.
The second defendant, who is the father of the first, was at one timethe owner of a one-sixth share of the two plots. He sold it in 1937 tothe first defendant and another son named Endoris. The one-twelfthshare that Endoris so acquired he sold in 1938 to Amarissa, a brother ofthe second defendant, and he bought it back from him in 1940. Onthe 16th October, 1943, he sold it to his wife by the deed P4, and on the6th Eebruary, 1947, he bought it back from her by the deed P5. Onthe 20th October, 1948, he sold it to the plaintiff by the deed P6, recitingas his title the deed P5. In the meantime, however, on the 27th October,1943,—eleven days after the sale to his wife—Endoris had executed adeed purporting to sell a one-twelfth share of these two plots of land tohis brother the first defendant. At that time he had no title to any shareof the property, and no title is recited in the deed. It is contendedfor the defendants that the title subsequently acquired hy Endoris uponthe deed P5 enured to the benefit of the first defendant, and that he isentitled to plead the exceptio rei venditae et traditae.
The district judge holds on the evidence that there was no considerationfor the alleged conveyance to the first defendant, though the deed pur-ports to be a deed of sale, and that the first defendant did not get posses-sion of the property alleged to have been sold to him. He also holds thatthe alleged sale “ has not been accompanied, followed or evidenced byacts which may be deemed equivalent to the Roman traditio ”. Thefirst defendant was not even able to produce the original of the deedby which he claims to have bought the share in question. He produceda copy (Dl), and he explained under cross-examination that the originalwas in the possession of Amarissa and that Amarissa was not on goodterms with him. There is no evidence that the deed was ever deliveredto him.
There appears to be no sufficient ground for disturbing the learnedjudge’s findings of fact, and the effect of these findings is that there wasin reality no sale from Endoris to the first defendant and that the trans-action between them was nothing more than a pretence of a sale. “ It
Ranhamy v. Jayawardena
395
is not enough that the parties call the transaction a sale ; the circum-stances must show that the parties in reality entered into a true contractof sale. ” (Wessels’ Law of Contract in South Africa, Vol. II p. 1197 citedin Rajah v. Nadarajah x). Even where there has been a genuine contractthe exception is available only if there has been an aet “ which may bedeemed equivalent to the Roman traditio Goonetfflleke v. Fernando 2.It is self-evident that this exception, which is an equitable plea, cannotbe set up by a party who relies on a pretended sale, where there was inreality no consideration and there was no transfer of possession of theproperty alleged to be sold or delivery of the deed. In my opinion theappeal should be dismissed with costs.
Swan J.—I agree.
Appeal dismissed-