091-NLR-NLR-V-58-S.-THAMBIPILLAI-and-others-Appellants-and-A.-MUTHUCUMARASAMY-and-others-R.pdf
i955Present; Gratiaen, J., and Sansoni, J.S. THAMBIPILLAI and others, Appellants, andA. MUTHUCUMARASAMY and others, Respondents
S. O. 521—D. C. Jaffna, 5,752
Sale of immovable property—Option oj repurchase—Importance of lime limit—-Voroom for application of .principle “ once a mortgage, always a mortgage
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Timo is of tlio essence of tlio roriract in n pactum tie relrovcndentlo. In suchn- contract it is not open to tlio Court to toko tlio view that the transactionwas in reality o mortgage niul not a sale.
j/^LPPUAL from a judgment of the District Court, Jaffna.
Thiagalingam, Q.C., with A. Nagendra, for the 1st and 2nddefendants appellants.
Panganathan, with Balasubramaniam and P. Nagulesicaran,. forthe 3rd. 4th and 5th defendants resnondents. •
Cur. adv. vult.
March 9, 1955. Grati.-yex, J.—
A woman named Sellammah had at one time been the owner of theland in dispute. On 30th August 1944 she and her husband(the 5th defendant) had apparently eonvej-ed the land to two otherpersons subject to their light to obtain a reconveyance within threeyears. Before this period elapsed, a new arrangement was arrived atwhich is embodied in the notarial conveyance P 2 dated 1st February1947.
The terms of the written instrument P 2 are clear and unambiguous,and (according to the law of Ceylon) oral evidence of the “ surroundingcircumstances ” cannot be admitted as a guide to its interpretation.P 2 oxierated as an “ absolute sale ” of the land by Sellammah, the 5thdefendant and their previous vendors (under the deed of 30th August1944) in favour of the appellants, but subject to two importantconditions :—
(2) the aj^pelJants’ right to enter into occupation of the land asowners was by agreement postponed until the expiry of theyear period ; if, however, the option of repurchase wasduly exercised, Sellaminah and the 5th defendant would ofcourse continue in occupation under the later contract ofsale.
Neither of these conditions is in any way inconsistent with the incidenceof a contract of sale (as opposed to a contract of mortgage). The firstcondition constituted a pactum de rctrovcndendo which is well recognisedin Roman-Dutch law. Voct 1S-3—7. The second condition representsan agreed and perfectly permissible departure from the normal rightof a purchaser to obtain immediate possession of the property sold tohim.
Sellaminah died in February 1947 leaving her husband (the 5thdefendant) and three children (one of whom is the plaintiff). It' wouldappear that attempts to exercise this opt ion of repurchase for tho benefitof tho entire family within tho stipulated period failed. Eventuallythe plaintiff, as one of Sellammah’s intestate heirs, called upon theappellants to convey the property to him to the exclusion of the otherheirs. As I interpret tho judgment under appeal, however, the plaintiffdid not tender the full consideration stipulated within the stipulatedperiod. The evidence of proctor Itaralasingham, which was acceptedby the learned trial Judge, shows that at the time of the alleged tender,only Rs. 8,000 was available for payment; no doubt the appellants intheir turn claimed slightly more than they were entitled to demand,but this circumstance could not give efTicacj’- to a tender which was itselfinadequate. The plaintiff has not affirmatively proved that the properamount would and could have been available before 31st July, 1949.
In due course, the plaintiff instituted this action claiming a conveyanceof the land from the appellants on payment of the purchase price whichwas not however deposited in Court and is apparently not yet forth-coming. Time is of the essence of the contract in a padinn de relro-vendendo, and the plaintiff's failure to tender the stipulated considerationwithin time is therefore fatal to his claim. The learned Judge took theview, however, that the transaction was in reality a mortgage and nota sale. I would reject this conclusion for the same reasons as thoserecorded in the recent judgments of my brother Sansoni and myselfin Selmva v. Ufcku *. Accordingly, there is no room for the applicationof the principle <c once a mortgage, always a mortgage ”.
It is unnecessary to consider whether in any event the plaintiff couldalone have exercised the option of repurchase. His claim fails in hmhicowing to his omission to make a valid tender within the time fixed inP 2. I would therefore set aside the judgment under appeal and dismissthe plaintiff's action with costs (in favour of the appellants) in bothCourts.
Appeal allcnced.
Saxsoxi, J.—I agree
{JO-55) 50 j. L. It. 337.