131-NLR-NLR-V-18-SIRIATTU-v.-RAN-MENIKA.pdf
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Present: Wood Benton C.J. and Shaw J.SIBIATTU v. RAN JilENIKA.
102—D. C. Kurunegala, 5,342.
I
Vendor and . purchaser—Landsold free from encumbrances—Purchaser
to obtain possession owing to existence of a usufructuarymortgqge—Rescission of sale.
Defendants sold to plaintiffs a iand, covenanting that it was freefrom all' encumbrances; bnt in point of fact it was subject to ausufructuary mortgage, and the plaintiffs were unableto obtaiff
physical possession.
Held (over-ruling the objection that the existence of such anoncombranoe was not a defect in the thing sold, and constituted.no ground for the rescission of the sale, but merely entitled thepurchaser, on paying off the mortgage, to recover the amount andincidental expenses as compensation fromhisvendor),that the
plaintiffs were entitled to a rescission of the sale.
f£|HE foots appear from the judgment.
A* St, V. Jayewardene, for the defendants, appellants.
No appearance for the plaintiffs, respondents.
Our. adv. vutt.
June 7, 1915. Wood Bbnton C.J.—
This ease raises an interesting point of law. The defendantssold to the plaintiffs the field described in the plaint for a sum ofBs. 800, covenanting in their deed of agreement that the property •was free from all encumbrances. It was, in point of fact, subjectto a usufructuary mortgage, and the plaintiffs were unable to obtainphysical possession of the lands. They bring this action, claimingin the alternative that vacant possession should be given to them,or that the purchase money should be returned and damages paid.The learned District Judge, after hearing evidence on both sides,has given the plaintiffs judgment in terms of the prayer in theirplaint. The defendants appeal.
The District- Judge has not entered into a question whioh wasraised by the issues as to whether or not the plaintiffs were awareof the existence of the mortgage. He says that it does not matterwhether they were so or not, in view of the express covenant forfreedom from encumbrances. The defendants* counsel contendedthat under the Boman-Dutch law the existence- of such an encum-brance as we have here to do trith is not a defect in the thing sold,and constitutes no ground for the rescission of a sale, but merelyentitled the purchaser, on paying off the mortgage, to recover theamount, and incidental expenses, as compensation from bis vendors.
1915.
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1915. (See 3 Maasdotf 161, Berwick’* Voet 663, «uid Qrotius 3, 5, 15.) ' ItW^oi> in my opinion, unnecessary to cqpaider in tide present' ease theBhnxon C..T. question whether this is the law of Ceylon in eases in which a deed',Sitfatfu v, of transfer is silent as to encumbrances, for I do not think that tireBen Menika passages on which*the defendants’ counsel relies have any applica-tion whthe a deed of sale contains an express covenant for freedomfrom encumbrances, and where the encumbrance that iQ factexists is one that makes it impossible for the vendor to give to hispurchaser vacant possession of the land in the Sense in which thatterm has been defined in Batwatte v. Dullewe 1 and simper decisions.
I would dismiss the appeal, with costs.
*Shaw J.—
The plaintiffs in this case, by deed No. 85,435 dated September24, 1918*purchased from the defendants a field called Timbirigss-mulla for the sum of Bs. 800. The deed contained a certificateby the vendors that the property sold was not subject to any mort-gage security, and was free from all encumbrances. in fact itappears that the land is subject to a usufructuary mortgage for-Bs. 150, and is in the possession of the mortgagee.
The plaintiffs have brought this action, claiming that the defend-ants may be ordered to give them quiet possession of the field, anddamages, or, alternatively, that the defendants may be ordered toreturn the purchase money and pay damages.
The District Judge has ordered the-defendants to give possessionto the plaintiffs and to pay Bs. 200 damages, and in default of givingpossession to repay the purchase money and pay Bs. 200 damages,and from this decision the present appeal is brought.
It is clear from the petition of appeal and from the evidence of the.second defendant that the defendants* contention has been through-out that the plaintiffs should pay the Bs. 150 due on the mortgageout of their own pockets, in addition to the Bs. 800 already paid bythem to the vendors.
In view of the terms of the deed this is obviously a dishonestcontention, and one that cannot be supported; indeed, counsel forthe appellants did not attempt to support it on the hearing of theappeal. It was contended, however, that the plaintiffs have mis-taken their remedy, and that their proper course was for themselvesto pay off the mortgage and to claim a return of the amount fromthe defendants, and various extracts from writers on Boman-Dutchlaw were cited to us with the object of showing that where land issold, even with a covenant against encumbrances, and a servitudeis found to exist, it does not give to the purchaser a right of rescissionof the contract, but a right of damages only.
There appears to me to be no doubt that under the Boman-Du&shlaw a vendor is bound to make full and free delivery of the thing'
» (1907) 10 N. L. B. 304.
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)1MB.Shaw J,
£old Van Ijeeywen 4,1; Voet 19, 1, 10; Maasdorp 159), and
in ordei tp do this he- is bound not merely to transfer to the pur-chaser the dominium, but. to put him in actual possession (RatwftteV- Dullewe l). It is ttue that according to some oJE the Dutch wyiters*(Van Leepwen 4t 19, 5; Voet 19, 1, 6)ma purchaser is not entitle^to cancel the sale when land has been sold without any "mentionof a servitude or other encumbrance upon it, and such a servitudeor encumbrance is in fact found to exist, but this view of the lawhas not been accepted by the Courts in British Guiana (see 21, S. A„ L; 1), and it does hot -seem to me that these expressions ofopinion oA be intended to conflict with the clear law that full.and free possession must be given, and do not apply to such aservitude as a usufructuary mortgage,, but must be restricted t<?such servitudes as rights of way, &oM which do not interfere withihe actual possession of the property sold.
In the present case the appellants have failed to give possessionof the property sold by them; the judgment appealed from is, inmy opinion, therefore, correct, and I would dismiss the appeal,with costs.
Appeal dismissed.