060-NLR-NLR-V-63-L.-SELLATHURAI-and-another-Appellants-and-ANNALEDCHUMY-Respondent.pdf
SeBathurai v. Annaledchumy
289
[Ik the Privy Cottkoil]
1961 Present : Viscount Stmonds, Lord Tucker, Lord Cohen,Lord Guest, Mr. L. M. D. de Silva• ) L. SELLATUL UKAI and another, Appellants, andAI^ALEDCHUMY, Respondent
Privy Council Appeal No. 34 of 1960S. C. 134 of 1958—Application in Revision in D. C. Colombo, 36064/M
Contract—■Dowry deed—Portion of dowry to be given within a specified period oncondition that grantees should transfer certain property to grantor—Subsequentsale of the property to a third party—Right of grantees to sue grantor—Con-struction of deed—Recitals in deed—Can they be basis of a written promise f—Prescription Ordinance, s. 7.
A dowry deed was executed under which a part of the dowry wasimmediately given to the grantees (husband and wife). It further provided(if the word ” give ” can be interpreted not only as referring to an act inpraesenti but also as importing a promise to pay at a future date) that whena second sum of Rs. 15,000 was paid by the grantor within a period of oneyear the grantees should effect a transfer of certain scheduled lands in favourof the grantor.
The sum of Rs. 15,000 was not paid to the grantees within one year of thedeed or at all. Repeated demands were made for payment and were ignored,but at no time was a demand accompanied by an offer to effect a transfer ofthe scheduled lands. In the present action claiming payment of Rs. 15,000the grantees did not by their plaint majke any offer to effect a transfer of thelands upon payment of Rs. 15,000 and, after the defendant had filed heranswer, put it out of their power to do so by selling the lands. The sale pricesubstantially exceeded Rs. 15,000.
Held, that it was contrary to well established equitable principles that theplaintiffs should at the same time obtain payment of the sum of Rs. 15,000and retain the lands which they had agreed to transfer, unless they could showthat time was of the essence of the contract. The severity of the penalty forfailing to pay within the prescribed time should make any Court reluctantto enforce the letter of the agreement. The plaintiffs having put themselvesin a position in which they were unable to perform their part of the contractwere not entitled to enforce the performance of the contract by the defendant.
Quaere, whether a claim based on an antecedent contract referred to in therecitals in a deed or upon a covenant implied in the recitals should be regardedas a written promise.
Appeal from a judgment of the Supreme Court delivered onOctober 30, 1958.
Waller Jayawardena, for the plaintiffs appellants.
T. O. Kelloek, with D. J. Thampoe, for the defendant respondent.
i/Xm
2—J. H. R 11—2,033 (11/61)
Cur. adv. vvlt.
200
VISCOUNT SIMONDS—SeUathurai t>. Annaledchumy
June 20, 1961. [Delivered by Viscount Simonds]—
This appeal from a judgment and decree of the Supreme Court ofCeylon is concerned with the rights of the parties under a Dowry Deedof the 10th September, 1949. The appellants claim that under and byvirtue of this deed there is due to them from the respondent the sum ofRs. 16,000. Their claim was sustained by the District Court of Colombobut on appeal was rejected by the Supreme Court of Ceylon.
The parties to the deed were N all at ham by Sellathurai (since deceased),his wife the respondent, Annaledchumy and Sellammah, the widow ofSuppiah, who were called the Dowry Grantors, and the appellantsLeelawathy, the daughter of the first.two parties, who was called thedowry grantee, and her husband Kartbigesu Sunthera Rajah. It isan ill drawn document giving rise to many difficulties and it is necessaryto state it fully. It is in a form appropriate to a deed poll, though infact signed by all the parties that have been named. It recites thata marriage had been arranged between Karthigesu and Leelawathy,that it was agreed that a cash dowry of Rs. 30,000 and jewels worthRs. 5,000 should be given to the dowry grantee by the first and secondnamed dowry grantors, that in consideration of the said agreement thedowry grantors did thereby give cash Rs. 15,000 and jewels to thevalue of Rs. 5,000 to the dowry grantee, and that the dowry granteew as entitled by virtue of mudusom and inheritance from her late motherto certain lands described in the Schedule (these lands are referred toin the body of the deed in language which is not easily intelligible) andthat “ it was agreed between the dowry grantors and the dowry granteethat when the balance cash dowry of Rs. 15,000 was paid within a periodof one year then the dowry grantee undertake and agree to effect a transferof the said lands in favour of the first and second named dowry grantors ”and that Karthigesu and his wife Leelawathy were willing to acceptthe said dowry. Then followed the operative part of the deed by whichthe first and second named dowry grantors “ for and in considerationof the natural love and affection which we have and bear unto ourdaughter Leelawathy, and for and in consideration of the marriage ofmy said daughter Leelawathy with the said Sunthera Rajah do herebyby way of dowTy give, convey, make over, transfer and assign unto thesaid Leelawathy wife of Sunthera Rajah, her heirs, executors, adminis-trators and assigns, the said cash dowry, jewels to have and to holdthe same unto the said dowry grantee and her afore written for ever ”.The deed ended with the statement that “ Sunthera Rajah and wifeLeelawathy do hereby thankfully accept this dowry **. The notarypublic who attested this deed certified that two cheques amounting toRs. 15,000 were issued on the Imperial Bank of India. It was admittedthat contemporaneously they were handed over .to the dowry granteesand that the jewels were also handed over.
The second sum of Rs. 15,000 was not paid to the dowry grantee withinone year of the deed or at all. Repeated demands were made for pay-ment and were ignored, but at no time was a demand accompanied byan offer to effect a transfer of the scheduled lands. Accordingly in theyear 1955 the appellants issued the plaint out of which this appeal arisesclaiming payment of Rs. 15,000 with interest from the date of the
VISCOUNT SIMONDS—SeUcUhurai v. Annaledchumy
201
Dowry Deed. The father of Leelawathy had in. the meantime diedand the sole defendant was the respondent Annaledchuxny, who by heranswer to the plaint denied all liability and pleaded that in any eventthe claim was barred by prescription. The plaintiff-appellants did notby their plaint make any offer to effect a transfer of the said lands uponpayment of Rs. 15,000 and after the defendant-respondent had filedher answer put it out of their power to do so by selling them. Thesale price substantially exceeded Rs. 15,000.
At the hearing before the learned District Judge, evidence was givenwhich, even if admissible, cannot give much assistance in the inter-pretation of a deed which is strangely obscure. The first question thatappears to arise is as to the true construction of the operative part ofthe deed. Do the words “ by way of dowry give, convey, make over,transfer and assign . . . the said cash dowry and jewels ” refer not onlyto the sum of Rs. 15,000 which was in fact given upon the execution ofthe deed but also to the balance of Rs. 15,000 which was to be paidupon the condition stated in the recital ? Their Lordships are of opinionthat they refer only to the Rs. 15,000 immediately given. Admittedlythis ignores the use of the word “ said ” in the phrase “ said cash dowry ”,but it appears better to commit this slight violation of the languagethan to regard the word “ give ” as bearing a double meaning, first asreferring to an act in praesenti, the giving of the Rs. 15,000 which werein fact then given, and secondly as importing a promise to pay a furtherRs. 15,000 at a future date. If, however, contrary to their Lordships’opinion, the latter meaning is accepted, it is clear that in respect of thesecond Rs. 15,000 nothing more than a chose in action, a contractualright, was established and the nature of that right can only be ascertainedby referring to the recitals in the deed. From these it appears that thepayment of the second sum of Rs. 15,000 is the subject of a bargain whichmust now be considered.
The Supreme Court, taking the view that the claim could only befounded on the oral agreement which was stated in the recital and thatthat agreement must necessarily have preceded the deed, held that tbeaction was barred by S. 7 of the Prescription Ordinance. Before theirLordships it was urged that the recital itself imported a covenant topay and further that the covenant thus imported must be regarded asa written promise, and in support of this contention numerous authoritieswere cited such as Aspdin v. Austin 1, and Jackson v. North EasternRailway 2. Their Lordships find it unnecessary to decide this question,for, whatever answer may be given to it, they approve and accept thesecond ground on which the Supreme Court allowed the appeal andrejected the present appellants’ claim. It would in their opinion becontrary to well established equitable principles that the appellantsshould at the same time obtain payment of the second sum of Rs. 15,000and retain the lands which they had agreed to transfer unless they couldshow that time was of the essence of the contract. The severity of thepenalty for failing to pay within the prescribed time should make anyCourt reluctant to enforce the letter of the agreement. When to that con-sideration there is added the circumstance that the lands could (as their1 5 Q. B. 671.* 7C. D. 573.
292
The Queen v. Premadasa
Lordships were informed) themselves according to Tamil custom beregarded as part of the dowry of the appellant Leelawathy, it is trans-parent that a grave injustice would be done by allowing the appellantsto take advantage of the fact that the respondent had delayed in makingpayment even though that delay was prolonged. It was urged thatin this case there was no question of time being of the essence of thecontract. But this ignores the substance of the bargain, which wasnothing else than that the appellants should receive the further sum ofRs. 15,000 and should in return transfer certain lands. Unless theycan establish that the time limit imposed for the performance of thebargain was of the essence of the contract, a Court, apptying well estab-lished equitable doctrine, will not allow them to require performanceby the respondent of her part of the bargain without being ready andwilling to perform their part. They see no reason to think that theSupreme Court has come to a wrong conclusion and adopt their words“ the plaintiffs having put themselves in a position in which they areunable to perform their part of the contract are not entitled to enforcethe performance of the contract by the defendant They add for thesake of clarity that the same result follows, whether the claim is basedon a contractual right arising out of the operative words of the deedor on an antecedent contract referred to in the recital or upon a covenantimplied in the recital itself.
For the reasons that have been given their Lordships will humblyadvise Her Majesty that this appeal should be dismissed. The appellantsmust pay the respondent’s costs of the appeal.
Appeal dismissed.