085-NLR-NLR-V-70-M.-SAMUEL-Appellant-and-K.-M.-P.-K.-CHETTIAR-and-another-Respondents.pdf
ABEYESUNDERE, J.—Samuel v. Cheltiar
379
Present :Abeyesundere, J., and Slrimane, J.M. SAMUEL, Appellant, and K. M. P. K. CHETTIAR and another,
Respondents
8. C. 100161—D. C. (.Inty.) Kegalla, 8337
Vendor and purchaser—Sale of different lands in one transaction—Is it a sale of anincertum juris ?—Failure of purchaser to obtain possession of some of the lands—Right to recover proportionate share of purchase price—Period of prescription—Prescription Ordinance, as. 6. 10.
A purchaser of different lands under the same deed of sale is entitled to recoversuch part of the purchase price paid by him as is proportionate to the value ofthe lands of which he has been unsuccessful in obtaining vacant possession.
The vendor’s obligation to deliver vacant possession to the vendee is in lawan implied part of the written contract of sale and therefore the period ofprescription should be determined by reference to section 6 of the PrescriptionOrdinance, which specifies a period of six years.
.ApPBAL from a judgment of the District Court, Kegalla.
H. W. Jayewardene, Q.C., with L. C. Seneviratne and S. R. de Silva,for the Plaintiff-Appellant.
C. R. Gunaratne, for the Defendant-Respondent.
June 26, 1964. Abeyesundere, J.—
In this case the defendant has sold to the plaintiff four allotments ofJand and certain undivided shares in five other lands by deed markedPI, dated 27.8.1946, for the sum of Rs. 2,900/-. The plaintiff, unableto get vacant possession of the properties he had purchased, institutedactions against the persons in possession thereof for declaration of titleand for recovery of possession. He did not succeed in the majority of hisactions and he sued the defendant in the present action for the recoveryof the sum of Rs. 2,650/-, being the consideration paid to the defendant,less the sum representing the value of the land of which possession hadbeen taken by the plaintiff before this action was instituted. In thecourse of the trial the plaintiff stated that he obtained possession of anotherland after the institution of this action and that therefore he restrictedhis claim to the sum of Rs. 2,400/-. He computed this sum on the basisthat he could not take possession of seven lands in extent equal to 80lahas and that the value of a laha was Rs. 30/-. He also stated thatwhen he made his purchase under deed PI the sum of Rs. 2,900/-, whichwas the consideration for the purchase, was determined at the rate ofRs. 30/- per laha. This evidence of the plaintiff was not contradictedby the defendant.
380
ABEYESUNDERE, J.—Samuel v. Chettiar
The learned District Judge who tried this action dismissed it on theground that what was sold was an incertum juris and that therefore underthe Roman-Dutch Law the purchaser was not entitled to recover thepurchase price or any part thereof upon his failure to get possession ofthe property purchased. The plaintiff has appealed from the judgmentand decree of the learned District Judge.
The sale of an incertum juris is dealt with in Book XXI, Title 2, Section31 of Voet’s Commentary on the Pandects (Gane’s Translation, Volume 3,page 686). To determine the nature of the incertum juris referred toin the said section 31, reference may be made to Book XVIII, Title 1.Section 13 of the said Commentary, where the things that may be soldare classified and discussed by Voet. In that section Voet makes the
following observation :—“for it has been held
that there can also be a purchase of an expectation, a hazard and thecast of a net, so that the expectation takes the place of the thing.” Theincertum juris referred to by Voet is what Justinian in the Digest calls theincertum rei (Digest XVIII, Title 4, Section 11). In the present casewhat has been sold and purchased is not an expectation or a hazard as,for instance, the cast of a net, but a thing itself. Voet also discusses thequestion of the sale of a thing as distinguished from the sale of theuncertainty of a right. In Book XXI,Title 2, Section 31 of his CommentaryVoet states as follows :—‘ But if when the seller was selling not theuncertainty of his right but simply the thing, he expressly arranged“not to be held liable for eviction”, he is not indeed forced when thething is evicted to pay damages ; unless in this case also he knowinglysold what was another’s. But he is nevertheless fast bound to restorethe price received, because a bonae fidei contract does not admit ofthis covenant that the purchaser should lose the thing and the sellershould keep the price.’ It is relevant to the matter I am consideringnow to quote the following views of Voet in regard to the case where abuyer knowingly buys a res aliena :—“ In this connection it should bebroadly noted that he who has knowingly bought a thing which was not thevendor’s has indeed no action for damages on eviction, unless he hasspecially taken care that security for eviction is given him ; but thatnevertheless the knowledge in the purchaser that the thing was another’sdoes not prevent his recovering, when eviction has ensued, the pricewhich he gave. It is not fair that the seller should be enriched to theloss of the purchaser.” (Book XXI, Title 2, Section 32)
In accordance with the afore-mentioned views of Voet, this Courthas held in the case of Silva v. Silva 1 that even where a purchaser knewthat the vendor had a disputed title and bought the land on speculation,he is entitled to recover the price actually paid by him to the vendorbut is not entitled to recover damages.
1 (1920) 22 N. L. li. 477.
ABEYESUNDERE, J.—Samuel v. Chetliar
381
I therefore hold that the plaintiff is entitled to recover such part of thepurchase price paid by him as is proportionate to the value of the landsof which he has failed to get possession. I accept the evidence of theplaintiff in regard to the value of the lands of which he has beenunsuccessful in obtaining possession. I hold that he is entitled torecover the sum of Rs. 2.400/-.
The defendant has filed objections to the decreo of the learned DistrictJudge on the ground that the learned District Judge should have answeredin favour of the defendant the issue relating to prescription. Mr. C. R.Gunaratne, Advocate, appearing for the defendant, argued that thecause of action for the recovery of part of the purchase price paid by theplaintiff arose on the date of the execution of the deed PI. He contendedthat the obligation to deliver vacant possession was imposed on thevendor, namely, the defendant, not by the deed PI but by the commonlaw and that therefore the period of prescription was 3 years as providedin section 10 of the Prescription Ordinance.
I do not agree with this view of Mr. Gunaratne. The vendor’sobligation to deliver vacant possession to the vendee is in law animplied part of the written contract of sale and therefore the periodof prescription should be determined by reference to section 6 of thePrescription Ordinance. The said section 6 specifies a period of sixyears. I find support for my view in the decision of this Court in the caseof Dawbarn v. Ryall1. That decision is one of the Full Bench. In thatcase Lascelles, C.J., expresses the following view :—“The circumstancethat the obligation on the part of the seller to give quiet possession of thething sold depends upon a condition which the law considers as inherentin a written contract of sale does not make that obligation any the lessdependent on the written contract of sale. Without the writtencontract of sale this obligation would not exist, and such an obligation,in a case where immovable property is concerned, would not be provedwithout production of a formal written contract of sale.”
The learned District Judge is therefore correct in holding that theaction of the plaintiff is not prescribed. Consequently I dismiss theobjections of the defendant to the decree entered by the learned DistrictJudge.
I set aside the judgment and decree of the learned District Judge andenter judgment for the plaintiff in a sum of Rs. 2,400/-. The plaintiff isentitled to the costs of the action and also the costs of this appeal.
SmiMANE, J.1 agree.
1 11914) 17 N. L. R. 372.
Appeal allowed.