095-NLR-NLR-V-16-MOHAMADU-v.-HUSSIM-et-al.pdf
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1019.
Present: Pereira J. and Ennis J.
MOHAMADU b. HUSSIM et al.
20—D. C. Galle, 11,038.
Conveyance of property—Subsequent refusal to pay the consideration
No action lies for cancellation of conveyance.
Where a person obtains a conveyance of property -without fraud,but afterwards fraudulently refuses to pay the considerationstipulated for, the grantor is not entitled to claim a cancellationof the conveyance, but his remedy is an action for the recovery oftheconsideration.
THE facts appear from the judgment.
Bawa, K.C., for defendants, appellants.
A. St. V. Jayewardene, for plaintiff, respondent.
Cur. adv. vult.
March 6, 1913. Pereira J.—
In this case the main issue is whether the bill of sale No. 5,470 datedSeptember 3, 1910, was fraudulently obtained by the defendantsfrom the- plaintiff. The plaintiff's original attitude was that hewas a minor, and that the defendants fraudulently and with intentto cause loss and damage to him induced him to execute the bill ofsale, conveying to them .thereby the land mentioned therein, whichthe plaintiff had inherited from his father Seyadu Ali Mawlana.In instituting this action also the plaintiff apparently proposed tobe a minor, and had a next friend appointed for the purpose ofrepresenting him in Court. At the trial, however, the plaintiffappeared to have attained the age of majority, and in his evidencehe says that he sold the land to the defendants; that at the timehe owed one Mohamado Rs. 400, and that the defendants agreed topay that amount to Mohamado, but that they have not yet done .so. It is also stated in the attestation clause of the conveyancethat the consideration, Rs. 400, was withheld by the vendee for thepurpose of paying a debt due by the vendor. Now the questionis whether, in obtaining the conveyance referred to above from theplaintiff, the defendants practised any fraud on him. The DistrictJudge has expressly found that the conveyance was obtained withoutfraud, but he thinks that the defendants “ subsequently fraudulentlyrefused to pay the consideration." In these circumstances, it isquite clear that the plaintiff is not entitled to claim a cancellationof the conveyance (see Voet 19, 2, 21 and 15 N. L. 2?. 280), but thathis remedy against the defendants is for the recovery of the Rs. 400,if it is true that the defendants have failed to pay off the plaintiff's
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debt, and that the plaintiff has hence paid it off or has become liableto do so.
I would set aside the judgment appealed from and dismiss theplaintiff's claim with costs, reserving to the plaintiff the right to suethe defendants, if so advised, for loss, if any, sustained by him byreason of any omission on the part of the defendants to perform anyundertaking with reference to the consideration for the conveyance.
Ennis J.—I agree.
1918.
PHHBXBA J,
MoHamadu0. Huasinu
Set aside.