056-NLR-NLR-V-41-SARDIYA-v.-RANASINGHE-HAMINE.pdf
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Sardiya v. Ranasinghe Hamine.
Present: de Kretser J.
SARDIYA v. RANASINGHE HAMINE.
29—C. R. Avissawella, 17,811.
Deed of conveyance—Agreement to retransfer—Deed not signed by the vendeeAgreement binding on vendee.
Where a conveyance contained an agreement to retransfer the landto the vendor within a stated period,—
Held, that the agreement to transfer was binding on the vendeealthough he had not signed the conveyance.
A
PPEAL from a judgment of the Commissioner of Requests ofAvissawella.
The plaintiff-appellant transferred a land to the defendant-respondentand in the recital there was “ the condition that if the said RanasingheHamine (the defendant) within a term of four years from this date werepaid the said sum of rupees one hundred and fifty and requested totransfer the said premises, to retransfer the said premises under avalid deed Demand was made within the period of four years forthe retransfer, but the defendant put off the execution of the retransferand the plaintiff brought this action against the defendant to compel herto execute a retransfer. The learned Commissioner of Requests held thatas the defendant did not sign the deed she could not be compelled toexecute a, retransfer and dismissed the action. The plaintiff appealed.
P.A. Senaratne, for the plaintiff, appellant.—The Prevention of FraudsOrdinance requires that a transfer of land should be notarially executedin order to maintain an action. Under the corresponding Statute ofFrauds in England it was held that “ though the execution of a deed isnecessary to bind the grantor, yet a party who takes the benefit of a deedis bound by it though he does not execute it ”. [Norton on Deeds (2nd ed.,p. 26).] This principle has been followed from 1468 till it was enacted inthe Law of Property Act, 1925. The earliest case available here isR. V. Haughton-le-spring (1819) 2 B. and Ad. 375. That was a case ofservice for over a year. The servant signed the contract, but the masterdid not. After the termination of the contract the latter refused to payto the servant his wages. It was held that the master was liable. Thisprinciple was extended to contracts of land with restrictive covenants inForrnby v. BakerMay v. Belleville Elliston v. Reachers. Hence thedefendant is bound to grant a retransfer.
V. Ranawake, for the defendant, respondent.—The English decisionscited have no application. The matter should be considered by referenceto the principles under Roman-Dutch law. A covenant to reconvey(the pact de retrovendendo) between vendor and vendee can be incorpora-ted in a deed of sale under the Roman-Dutch law. Thi£ i£ treated under aseparate head “ De Lege Commissoria ” Voet XVItl. 3.7…Such acovenant, it is submitted, is not one of the ordinary incidents attaching toa contract of sale; it is a distinct contract which should be conclusively» (1903) 2Ch 339 at p. 549.* (1906) 2 Ch. 60S.
(190S) 2 Ch. 663 atp. 673.
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DE KRETSER J.—Sardiya t>. Ranasinghe H amine.
proved, i.e., by the signature of the vendee undertaking to reconvey. Thelearned Commissioner has judged the matter on the footing of twoseparate contracts which should be stamped as such; we need not go so faras that in view of the law referred to.
There is no evidence here that the vendee’s husband acted as her agent;even were it so, it is the greater reason why the vendee should haveindicated her consent in the deed; such consent cannot be implied. Ifthe appellant’s contention is to prevail it will throw open the door tofraud, especially, for instance, where a vendee remits money to a notarywith a request that a transfer should be drawn up in his favour himselfnot attending at the notary’s office. It would not be a difficult matterfor a designing person to get inserted somewhere in the deed a mere line(the covenant to retransfer is so in the present case) incorporating apromise to retransfer upon payment of a certain sum. The consensus adidem has not been established in this case. The promise to retransfer is a.distinct and special contract, and is something more than a mere covenantattaching to the contract of sale.
Cur. adv. vult.
June 7, 1939. de Kretser J.—
On P 1 plaintiff transferred a land to the defendant “ under thecondition that if the said Ranasinghe Hamine within a term of four yearsfrom this date were paid the said sum of rupees one hundred and fifty andrequested to retransfer the said premises, to retransfer the said premisesunder a valid deed ”. This is the translation filed but the original makesit clear that the vendee promised to retransfer the land when called uponas aforesaid. She refused to retransfer and was sued. The Court oftrial has dismissed the action on the ground that the promise or agreementto retransfer was not signed by the vendee.
For the appellant it is contended that a party who takes the benefit ofa deed is bound by it though he does not execute it. The followingauthorities were cited in support of this proposition, viz., Norton on Deeds,p. 26; L. R. 2 Chancery (1903), 539; L. R. 2 Chancery (1905), 605; L. R. 2Chancery (1908), 665; 13 Q. B. D. 886; and 2 Bamewall and Alderson 375.It will be noted that this case requires no oral evidence to establish theagreement, and that it is not a contemporaneous oral agreement, but is aterm of the deed itself and in fact forms part of the consideration for thetransfer. It would be manifestly unfair to let the vendee take the benefitof the deed and refuse to be bound by its obligations. It would in factamount to the Ordinance being used to perpetrate a fraud. The leadingcase on this point is Nanayakkara v. Andriswhere Bertram C.J. indeciding the limits within which this equitable principle is to be appliedmentioned in the first place “ cases where the defendant has obtainedpossession of the plaintiff’s property subject to a trust or condition, andclaims to hold it free from such trust or condition ”. This is exactly thecase here.
The decree will therefore be set aside, and the Court will enter anappropriate decree ordering the defendant to transfer the property.
The appellant is entitled to his costs in both Courts. . _:
Ajrpeal alloibed.
> 23 N. L. R. 193.