072-NLR-NLR-V-26-LAMATENA-v.-RAHAMAN-DOOLE.pdf
( )1924.
1
Present: Jayewardene A.J.
LAMATENA u. EAHAHAN BOOLE.
232—C. R. Hambantola, 4,290..
Prescription—Claim fo recover balance purchase money—Deed of sale—Ordinance No. 22 of 1871. s. G
A claim to recover the balance consideration on a deed of sale isprescribed in six years.
Dawburn v. Ryall1 followed.
Thomussie v. KanavatthipiUai2 distinguished.-
A
PPEAL from a judgment of the Commissioner of Requests,Hambantota. Plaintiff sued the defendant to recover a
sum of Rs. 100, being the balance purchase money due on a deed ofsale of land dated July 18, 1914. The consideration stated in thedeed was Rs. 200; but the defendant pleaded that the real considera-tion was not Rs. 200, but Rs. 100, and that the. consideration wasstated in the deed at the higher sum to^ enable him to give the deedas security. He also pleaded that the claim was barred byprescription. The learned Commissioner held that the action wasnot prescribed.
Peri Sunderam, for defendant, appellant.
Mervyn Fonseka, for plaintiff, respondent.
*
September 24, 1924. Jayewardene A.J.—
This case raises a question of prescription. The plaintiff sold aland to the defendant on July 18, 1914, by deed No. 470. Theconsideration was stated in the deed to be Rs. 200. Out of this.Rs. 100 was paid before the notary. On July 16, 1924, the plaintiffbrought this action to recover the balance purchase money,. Thedefendant pleads that the real consideration was not Rs. 200, butRs. 100, and that the consideration tvas stated in the deed at thehigher rate to enable him to give the deed as security. He alsopleads that the claim is barred by prescription.
The defendant led some evidence of a contradictory andunsatisfactory character to prove that the consideration was onlyRs. 100. The learned Commissioner refused to consider thisevidence in view of section 91 of the Evidence Ordinance. Therehe was clearly wrong. See Nadaraja v. Ramalingam.3
M1914) J7X.L.R. 372.*{188-5) 5 3.0.0.274.
{1918) 21 N. L. R. 38.
( 407 )
He also held that the action was not prescribed, and decreed the 1924.plaintiff’s claim. The defendant appeals and bases his appeal jaybwae-mainly on the ground of prescription.denb A.X
He contends that the plaintiff’s claim was prescribed within Lamatena vthree years of the date of the deed under section 8 of the PrescriptionOrdinance. The plaintiff says it is not prescribed for ten yearsunder section 6 of the Prescription Ordinance.
It seems to me that the action falls within section 7 of thePrescription Ordinance, and is prescribed after six years. Thedefendant argues that it is a simple money debt/ I am unable toagree with him. It does not fall within the principle of the case of- Thomassie v. Kanavathipillai (supra), for, although that was an actionto recover the consideration for a land sold to the defendant, theclaim did not arise on the deed of sale, as the deed stated that the..full purchase money had-been received by the vendor. In feet, thedeed of sale negatived the claim, and it could not be said to be basedon or to have arisen from the deed. This was pointed out inDawburn v. Byall (supra) and Mohideen v. Bandar a.x
The present claim is for the balance consideration due on the■deed of sale.
By a deed of sale the’ vendor transfers the land* and the vendeeagrees to pay the price. The action to recover the unpaid balanceof the price grows directly out of the deed of sale* it is dependenton it, and derives its vital force from it. It is, therefore, a claimarising from an agreement in writing: see Dawbum v. Ryall (supra).
In the latter case the vendee sued the vendor to recover compensa-tion for a deficiency in the extent of the land sold to him by anotarial conveyance, and it was held by a Bench of three Judgesthat the claim was based on a written agreement, and that theaction would be prescribed after the expiration of six years undersection 7 of the Prescription Ordinance.
I therefore hold that the plaintiff's claim is based on an agreementor contract in writing, and would be prescribed within six years.
I am unable to understand the argument of the counsel for therespondent who, citing the above decisions, contended that the claimwould be prescribed in ten years under section 6 of the Ordinance.
The claim must be based on a mortgage bond or a debt bond toattract the provisions of section 0.
As this action, has not been brought within six years of the date ofthe deed of sale, I would hold that it is prescribed, and dismiss^ theplaintiff’s action.
The appeal is allowed with costs in both Courts.
Appeal allowed.
* (1919) 4 a. W. B. 188.