003-NLR-NLR-V-59-NOMIS-PERERA-Appellant-and-C.-MASINGHE-Respondent.pdf
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Hotitis Per era v. Masinghe
Present :Gratiaen, J., and Gunasekara, J.
jSTOAIIS PERERA, Appellant-, and C. MASIXGHE,’Respondent
S.C. 117—D. O. Panadura, 2,612
Contract—Period for performance specifed—Is formal demand for performancenecessary then ?~
Where a vendor undertakes to execute a convoyanco of property beforo thoexpiration of a specified period and there is no corresponding obligation to callfor a convoyanco imposed on tho vendee, the vendee's causo of action accruesimmediately upon tho vendor's failuro to exocuto tho conveyance within thospecified period. In such a case, tho maxim dies interpellat pro ho mine appliesand it is not necessary that tho vendee should first mako a demand for thoconveyance.
GT? AT/AKX, J.—^Xomis Percra v. .1fasinghe
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•-^^-PPEAL from a judgment of the District Court, Panadura.
Sir Ukwalic Jayasundera, Q.O., with A. M. F. Siriwardene, for theplaintiff appellant.
L. O'. IVeeramajilry, for the defendant respondent.'
Cur. a<lv. vult.
February 15, I95G. Gkatiaex, J.—
Selestina Hamv (hereafter called the vendor) undertook in terms of anotarially attested agreement dated 9th September 1941, to convey tothe plaintiff, for a consideration which Mas duly paid to her, the dividedallotment that would be allotted to her in a i>ending partition action(D. C. Colombo, 1959 P). She died on Sth June 1943 before the partitionaction was concluded, and the defendant, who was her sole heir and theexecutor of her estate, was substituted as a party. On 20th January1950 an order was made for a final decree to be entered whereby Lot Cf(more full described in the schedule to the plaint in the present action)was to be allotted to the defendant.'
This formal decree was not signed until 20th March 1951 pending dis-posal of the defendant’s application (now admitted to have been com-pletely devoid of merit) to have the order dated 20th January 1950 vacatedon certain grounds. The application Mas in due course refused, but thedefendant, to whom Selestina’s obligations under the agreement dated9th September 1941 had been transmitted, refused to execute a con-veyance of Lot G in favour of the plaintiff. The present action wastherefore instituted on 9th May 1951 to compel specific performance ofthe agreement.
The learned District Judge, in dismissing the action, upheld theobjection that the plaintiff could not enforce the agreement because hohad failed to demand a conveyance within a period of 1 monthcommencing on 20th January 1950 (i.e., the date on which an order forfinal decree had been entered). Jn my opinion, there was no substancein this plea. Tu the first place, the vendor’s obligation under the agree-ment was not made conditional on any antecedent request or demand fora conveyance. In the second, such a request or demand would clearlyhave been premature until the formal decree was signed on 20th March1951. It is not denied that the plaintiff did call upon the defendant toexecute a conveyance within one month of the date.
The relevant stipulation in the notarial agreement as to the time forperformance is as follows :
“ As the land called Makulugahawatte described in the under-mentioned schedule is the subject matter of a partition action in theDistrict Court of Colombo, the aforesaid first party having agreedto transfer to the aforesaid second party the allotment to be parli-tioned as the due share of the first party (in the partition action)within one month from the date of entering the final decree for a sumof Rs. 100, the receipt of the said Rs. 100 is hereby acknowledged. ”
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Amcra-singhe v. The Manager, Ceylon Wharfage Oo., Ltd.
It ■will be observed at once that the vendor had undertaken to execute theconveyance before the expiration of a specified period, butthat no corres-'ponding obligation-to call for a conveyance was imposed on the plaintiff.In these circumstances the maxim dies iulcrpcljal pro ho mi no applies.“ It is not only men who make demands, but the law or even the datederhands instead of a man, provided only that a fixed date was made aterm in tl^| obligation. ” Vocl 22 : 1 : 26. Accordingly, the plaintiff’scause of action accrued immediately upon the defendant’s failure toexecute a conveyance within the specified period.
The learned Judge seems to have construed the agreement dated 9thSeptember 1941 as conferring on the plaintiff only an option to purchasethe property provided that he exercised it one month from the date ofthe final decree. This is not a correct interpretation of the document,and even if it was, the relevant date would have been 20tl March 1951(when the decree was in fact drawn up and signed) and not 20th January1950 (when the order was originally made for a final decree to be entered).It is no doubt true that, after a final decree has been duly signed andentered, the new title thereby created vests retrospectively as from thedate on which the judgment was pronounced. But this does not meanthat the decree can be regarded as having taken effect before it comesinto existence. Besides, the language of the document indicates a clearintention that the date on which the decree would be formally “ entered ”should be the operative date. In addition, the effect of the judgmentdated 20th January 1950 was suspended until the defendant’sapplication to have it vacated was disposed of.
I would allow the appeal and enter judgment in favour of the plaintiffas prayed for in the plaint with costs both here and in the Court below.
Gunasekara J.—I agree.
Appeal alloiced.