076-NLR-NLR-V-51-PERERA-Appellant-and-JOHN-APPUHAMY-Respondent.pdf
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NAGALINOAil J.—Perera v. John Appuhamy
1950Present: Nagalingam J.
PERERA, Appellant, and JOHN APPUHAMY, RespondentS. C. 147—C. ft. Gampaha, 4,249
Prescription Ordinance (Cap. 55)—Sale of immovable property—•Claim to recoverbalance purchase money—Sections 6 and 7.
Where in a deed of sale there is a recital that the full consideration hipaid and thero is no statement in the attestation from which any prorundertaking on the part of the vondor can be gathered, ait action broi:recover an alleged balance of the consideration is proscribed in threeThe cause of action, in such a case, arises not upon a written contract bua simple monov debt.
^^PPEAL from a judgment of the Commissioner of Ret;Gampaha.
Frederick W. Obeyesekera, for defendant appellant.
S. W. Jayasuriya, for plaintiff respondent.
Cur. adv. t
January 18, 1950. Nagalingam J.—
A point under the law of prescription arises for decision on this aThe plaintiff sued the defendant for the recovery of a sum of Rs. 1(Jinterest being the balance purchase price in respect of a sale of lahim to the defendant. The sale, according to the deed of conveywas for the price of Rs. 300.
The plaintiff’s case is that a sum of Rs. 200 out of the conside:was paid leaving a balance sum of Rs. 100 yot due to him. H<claimed interest on the unpaid sum. The defendant, on the othertook up the position that the consideration for the deed was in ra sum of Rs. 200 and that the full amount had been paid to the pi;and nothing more was duo to him.
The defendant also raised a plea of proscription. The deed of coance was executod on 20th March, 1945, and the action was commby the plaintiff on the 2nd November, 1948, that is to say, after the cof more than three years from the date of the execution of theThe contention of the defendant is that tho plaintiff’s action b<prescribed in three years in terms of tho present section 7 of thecription Ordinance (Cap. 55), while tho plaintiff contends that the s<of tho Prescription Ordinance which governs the case is tho pisection 6.
Before it could be said that tho action falls under section 6 <Ordinance, it must be shown that the action is based upon a wpromise or contract. The plaintiff relies upon tho cases of LamalRahaman Doole1 and Ausadahamy v. Kiribanda8. In the forme:tho facts were very similar to those in the case before me, subject, koto one important variation. It does not appoar that in the deed oveyance executed in that case there was any rocital or averment th.full consideration for the deed had bcon paid to or received by tho v<
Tho deed, howevor, did. contain in the attestation clause a stateme1 (1924) 25 N. L. R. 406.■15 C. L. Rec. U
NAGAL1NGAM J—Per era v. Jukn Appuhamy
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the notary that out of the sum of Rs. 200, which was the consideration,for the deed, a sum of Rs. 100 was paid in his presenco. JayewardeneA.J. held that “ by a deed of sale the vendor transfers the land, and thevendee agrees to pay the price. The action to recover the unpaidbalance of the price grows directly oat of the deed of sale, it is dependenton it, and derives its vital force from it/' That this statement of thelearned Judge must be confined to those eases where the deed does notrecite that the full consideration has been paid by the vendee or receivedby the vendor is apparent from the fact that the learned Judge himselfdoes not doubt the correctness of the principle laid down in tbe earliercase of Thomassic v. KanapcUhipiUai1 where it was held that wherethe doed rocited that the full consideration bad been received by thevendee an action by him to recover an alleged balance of the consi-deration was prescribed in three years as the cause of action did notarise upon a written contract but upon a simple money debt. In thelater case of Ausadahamy v. Kiribanda {&upra), though in the body of thedeed the receiptof tbe consideration by the vendee was specifically stated,the attestation of the notary, howover, contradicted it, for in theattestation it was explicitly stated that the vendor had retained part ofthe purchase price to discharge certain mortgage encumbrances subsistingon the land convoyed. On the plaintiff instituting tbe action for recoveryof the balance retained by the vendor to pay off the mortgage on thebasis that the latter had failed to implement his undertaking to paythe mortgage debt, it was held that the attestation clause of thenotary operated as a written undertaking given by the vendor byhis agent, the notary, and that the action was therefore not prescribedin three yeaTB but would only be prescribed in terms of section 6 afterthe expiry of a period of six years.
In the present case, there is a declaration in the body of the deedthat the vendor has received the consideration, for the doed not merelysets out that the vendor transferred the land “ in consideration of thesum of Rs. 300 of the lawful money of Ceylon well and truly paid to me ”by the vendee, but expressly goes on to say that the vendor does admitand acknowledge the receipt of the consideration. The attestationclause in the deed which is rolied upon by the respondent does notassist him, for unlike in the case of Ausadahamy v. Kiribanda {supra)there iB no statement in the attestation from which any promise or under-taking on tho part of the vendor can be gathered. The attestationmerely states that out of the consideration only a sum of Rs. 200 was paidin the presence of the notary. Counsel for respondent attempted tolay emphasis on the word “ only " and contended that therefore thebalance was not paid, and be went on to seek to read into the documenta promise on the part of the vendor to pay that balance. I do notagree that these words in the attestation are capable of that interpre-tation. While the attestation does not show that the balance hadpreviously been paid to or acknowledged to have been received by thevendee, it gives no indication that the balance was yet outstanding orthat the vendor made a promise to pay the balance in the future. Inother words, while it is not possible to say that the balance had previouslyi (1883) 5 3. 0. C. 174.
310WINDHAM J.—Mohamed Cassim v. Abdul Haineed
been received, it is equally not possible to say that the balance wasagreed to be paid thereafter. There is therefore in this case no conflictbetween the attestation and the statement in the body of the deed thatthe full consideration had been paid, for the attestation is consistent withthe view that the balance had previously been paid or settled in someway acceptable to the vendee. It is therefore difficult to say that theattestation clause contains an agreement or undertaking to pay thebalance. The present case, therefore, falls within the principle laid downin Thomassie v. KanapathipiUai (supra) which was followed in the latercase of TkamotherampiUai v. KanapathipiUaiJ.
I hold, therefore, that the plaintiff’s action having been institutedafter the lapse of three years of the accrual of the cause of action isprescribed. Plaintiff’s action fails and is dismissed with costs both ofthis court and of the lower court.
Appeal allowed.