168-NLR-NLR-V-48-PERERA-Appellant-and-MORAES-Respondent.pdf
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HOWARD C.J.—Perera v. Moraes.
1947Present: Howard C.J. and Soertsz S.P.Jf.
PERERA, Appellant, and MORAES, Respondent.
S. C. 286—D. C. Colombo, 112Z.
Specific performance—Agreement to transfer portion out of lot allotted in partitiondecree—Lot less in extent than portion agreed upon—Vagueness ofcontract—Subject-matter insufficiently identified—Can agreement beenforced ?
One Lewis agreed to transfer to plaintiff 20 perches out of a lot thatwould be allotted to him. in a partition case that was pending. Lewisdied and the defendant as his heir was allotted lot H in lieu of hisundivided interests. Lot H was in extent 13.88 perches. Plaintiffsued defendant for the transfer of lot H for a price in proportion to theextent. Defendant contended that the contract could not be enforcedbecause it was vague in that the property to be transferred was notsufficiently identifiable and that it was impossible of performancebecause Lewis was allotted only 13.88 perches.
Held, that specific performance could be enforced.
^J^PPEAL from a judgment of the District Judge, Colombo.
N. K. Choksy, K.C; (with him V. Thllainathan), for the defendant,appellant.
N. E. Weerasooria, K.C. (with him J. M. Jayamanne and W. D,Gunasekera), for the plaintiff, respondent.
Cur. adv. vuli.
October 24. 1947. Howard C.J.—
The defendant appeals from a judgment of the District Court, Colombo,giving judgment for the plaintiff as claimed together with costs. Theplaintiff by an agreement dated February 12, 1344, entered into anagreement with one Don Lewis by which Lewis agreed to transfer to himfor a sum of Rs. 750 a portion of land in extent 20 perches out of the lotthat would be allotted to Lewis in the partition case then pending, Thetransfer was to be executed within two months of the final decree in thepartition case. It was established that on the execution of the agreementthe plaintiff paid Rs. 50 to Don Lewis and agreed to pay the balance ofRs. 700 at the execution of the transfer. On March 15, 1944, Lewisreceived from the plaintiff two sums of Rs. 100 and Rs. 60 and gave theplaintiff two promissory notes in respect thereof. Don Lewis died onApril 9, 1944, leaving the first defendant his sole heir. The final decreein the partition case was entered on September 13, 1944, and the firstdefendant as the heir of Lewis was allotted lot H in extent 13.88 perches.The plaintiff thereupon requested the first defendant to execute a transferof the 13.88 perches for the balance due, namely, Rs. 520 less Rs. 215 orRs. 305. The first defendant has refused to execute the transfer. Afterfiling the action the plaintiff discovered that, when the first defendantfiled his answer he had disposed of lot H to the second defendant who wassubsequently added as a party.
The District Judge has held that, although Don Lewis was not entitledto the extent of land he had contracted to convey to the plaintiff, theplaintiff was entitled to specific performance of the agreement. The
HOWARD C.J.—Perera v. Moraes.
54P
only question at issue is whether the District Judge was correct in lawin coming to this conclusion. Mr. Choksy has contended that thecontract is unenforceable (a) because it is vague, the property to betransferred not being sufficiently identifiable; and (b) because it isimpossible of performance inasmuch as Lewis was only allotted 13.88perches.
In regard to (a) it is a proposition of law that Courts before enforcinga contract must be satisfied that it is certain. Uncertainty may arisein various ways-: (1) where the contract is so vague in its general termsthat the obligations of the parties are not ascertainable, (2) where thesubject-matter of the contract is not sufficiently identified, (3) where theparties are not sufficiently identified, (4) where, in the case of a sale theprice is not ascertained, and (5) where some material term of the contractis omitted. Mr. Choksy has contended that the present case comeswithin (2) and has cited the cases of Hodges v. Horsfall' andLancaster v. De Trafford In the latter case the Court refused at theinstance of the lessee to decree specific performance where the agreementfor a lease of mineral property did not clearly define the mineral areato be comprised in the lease. In Hodges v. Horsfall (supra) the boundariesof land to be leased were to be settled in accordance with a plan. It was,however, not established which particular plan had been agreed upon.In these circumstances specific performance was refused I do not con-sider that the facts in the two cases cited are applicable to the factsof the present case in which the contract was for the transfer of 20 perchesout of the land allotted to Lewis in the partition decree. The contractwould be fulfilled by a transfer by Lewis of 20 perches. Vide Jenkins v.Green*. No question would arise as to which particular plot out of theland allocated was to be transferred. In my opinion the subject-matterof the contract was sufficiently identified and this contention fails.
In regard to (b) Mr. Choksy contends that the contract was unenforce-able inasmuch as Lewis was allocated only 13.88 perches and the contractwas for 20 perches. The English law with regard to this matter isformulated in the 6th edition of Fry on Specific Performance, paragraphs1257-1258, pages 582-583, as follows: —
“ 1257. Although, as a general rule, where the vendor has notsubstantially the whole interest he has contracted to sell, he, as wehave seen, cannot enforce the contract against the purchaser, yet thepurchaser can insist on having all that the vendor can convey, with acompensation for the difference.
1258.* If ’, said Lord Eldon, ‘ a man, having partial interests in an
estate, chooses to enter into a contract, representing it, and agreeing,to sell it, as his own, it is not competent to him afterwards to say,though he has valuable interests, he has not the entirety ; and thereforethe purchaser shall not have the benefit of his contract. For thepurpose of this jurisdiction, the person contracting under thesecircumstances is bound by the assertion in his contract ; and, if the
11 Russell <0 Mylne JIG.
2 (fS52) S Jurist $73.
3 54 S. n. 172.
550
HOWARD C.J.—Silva v. Wanigasekera.
vendee chooses to take as much as he can have, he has a right to that,and to an abatement ; and the Court will not hear the objection by thevendor, that the purchaser cannot have the whole.’ ”
Mortlock v. Buller ' ; Rutherford v. Acton-Adams *; Rudd v. Lascelles ’;and Barnes v. Wood ‘ are authorities for this proposition. In the first ofthese cases the Lord Chancellor at p. 318 stated as follows : —
“ I also agree, if a man, having partial interests in an estate, choosesto enter into a contract, representing it, and agreeing to sell it, as hisown, it is not competent to him afterwards to say, though he hasvaluable interests, he has not the entirety ; and therefore the purchasershall not have the benefit of his contract. For the purpose of thisjurisdiction, the person contracting under those circumstances, isbound by the assertion in his contract ; and if the vendee chooses totake as much as he can have, he has a right to that, and to an abate-ment ; and the Court will not hear the objection by the vendor, thatthe purchaser cannot have the whole.”
In view of the authorities I have cited I am of opinion thatMr. Choksy’s contentions must fail and the appeal dismissed with costs.
Soertsz S.P.J.—I agree.
Appeal dismissed.