WUEYEWAEDENE J.—Ratnayake and Asiyath Umma.
1944Present: Howard C. J. and Wijeyewardene J.
RATNAYAKE, Appellant, and ASIYATH UMMA et al., Respondents.77 & 78—D. G. Matara, 15,167.
Sale—Purchase of several lands under one conveyance—Failure to give vacantpossession of two lands—Claim for rescission of sale of those two lands—Roman-Dutch law.
Plaintiff sold five allotments of land to the defendant by deed whereinshe acknowledgedreceipt of theentire consideration. Theevidence
showed that the sale of the second and third lands was not dependenton the sale of the remaining lands and that an amount representing thepurchase price of the second and third lands was retained in the handsof the vendee until the title to those is “ cleared and peaceful possessiondelivered over
Held, that it was open to the defendant to claim a rescission of the saleof the second and third lands alone on the ground that he had not beengiven vacant possession.
A PPEAL from a judgment of the District Judge of Matara.
N. E. Weerasooriya, K.C. (with him C. J. Ranatunga), for defendant,.appellant in No. 77, and defendant, respondent in No. 78.
H. V. Perera, K.C. (with him W. W. Mutturajah), for plaintiffs,respondents in No. 77, and plaintiffs, appellants in No. 78.
Cur. adv. vult.
October 9, 1944. Wueybwajidene J.—
The first plaintiff (wife of the second plaintiff) sold five allotments ofland for Rs. 12,500 to the defendant by deed D 3 of 1942 wherein sheacknowledged receipt o.f the entire consideration.
The plaintiffs instituted this action stating that the first plaintiff waspaid only Rs. 8,300 and that a sum of Rs. 4,200 was due to her.
The defendant pleaded that Rs. 8,300 paid by him to the first plaintiffrepresented the purchase price of the first, fourth and fifth allotmentsand that it was agreed that the balance Rs. 4,200 was .to be paid to thefirst plaintiff on the defendant being given vacant possession of thesecond and third allotments mentioned in the deed. The defendantpleaded further that the first plaintiff had failed to give him vacantpossession of these two lots.
WIJ jbl V JH1WABDENE J.—RatnayaJee and Asiyath Vmma.
I see no reason to disturb the finding of' the District Judge that the *first plaintiff has not given vacant possession of the second and thirc)lands.
The questions that arise for determination are—
Whether the defendant could claim a rescission of the sale only in
respect of second and third lands or he should claim rescissionof the sale of all the lots as argued by the plaintiffs?
What sum could be claimed by the defendant in respect of the
rescission of sale?
The facts of the case relevant to these questions are briefly as follows: —
The five allotments of land were under mortgage to a third part$ at thetime of the sale. The mortgage debt amounted to about Us. 9,000.The defendant was willing to give only Us. 8,300 out of the considerationand wanted to retain in his hands the balance Rs. 4,200 until he wasgiven vacant possession of the second and third lands. Though thefirst plaintiff wanted Rs. 9,000 to pay off the mortgage, the defendantwas not prepared to advance to him an additional Rs. 700 out of the sumof Rs. 4,200 which he was going to keep in his hands on account of thesecond and third lands. He, however, accommodated the defendantby lending Rs. 700 on a promissory note carrying interest. The notarywho attested the deed D 3 stated in the attestation clause “ at theinstance of both the parties ” that “ the balance amount (Rs. 4,200)was retained by the vendee for payment when the title to the second andthird-named lands is cleared and peaceful possession delivered over ”.The total extent of all the allotments is about thirty-one acres and theconsideration Rs. 12,500 was reached on an average assessment of Rs. 400an a’cre. On that basis of assessment, the purchase price of the secondand third lands would amount to Rs. 4,200 approximately. These factscoupled with the evidence led by the defence show that the sale of thefirst, fourth and fifth lands was not dependent on the sale of the secondand third lands though all the lands were dealt with in one instrument.
It is, therefore, open to the defendant to claim a rescission of the sale ofthe second and third lands alone on the ground that he had not. beengiven vacant possession. I think, moreover, that we should adopt inthis case the principle underlying the opinion expressed by Voet that“if a number of things have been sold together for one (lump) price,the obligation for eviction is multiplied according to the number of thethings, and as many actions are given as there are things evicted whichwere included in the .single sale, ….” (Voet 21.2.35 Berwick’s
As regards the second question I am of opinion that the defendant isentitled to retain in his hands the sum of Rs. 4,200. The evidencereferred to by me leads me to the conclusion that this amount was fixedas the price for the two lands in question. Different opinions have beenexpressed by the Roman-Dutch law authorities on the question whethera purchaser who is judicially evicted from a land is entitled to recoveronly the value of the land at the time of the eviction if such value is lessthan the purchase price. (See . (1939) Norman on Purchase and Sale .in South Africa (second edition) page 314.) The view favourable to the
Sanmugampittai and Anjappa Kona.
first plaintiff is that “ the compensation payable diminishes if the resvendita has fallen in value in the purchaser’s hands The plaintiff,however, led no evidence on that point.
I would allow appeal No. 77 and enter decree—
directing the defendant to execute a conveyance reconveyingto the first plaintiff the right, title, and interest in the secondand third lands conveyed to him by the first plaintiff by deedD 3.
« (b) granting the defendant costs in the District Court and in appealNo. 77 as against the plaintiffs.
I dismiss appeal No. 78 but I make no order as to costs of that appeal.
Howard C.J.—I agree.
Appeal No. 77 allowed.Appeal No. 78 dismissed.
RATNAYAKE, Appellant, and ASIYATH UMMA et al., Respondents