Arumugam v. Somasunderam
The last ground of appeal must also be upheld. In the result all exceptthe first ground of appeal urged by learned counsel must be upheld andthe convictions of the appellants quashed.
The only question that remains for consideration is whether a retrialshould be ordered or not. We are of opinion that after such a long lapseof time—it is now 2 years and 6 months from the date of the commissionof the offence—and in a case of this nature where there are several infir-mities in the evidence for the prosecution, no useful purpose will be servedby a retrial. We therefore quash the conviction and direct that an orderof acquittal be entered in respect of both appellants.
Present: Basnayake, C.J., and Pulle, J.
V. ARUMUGAM et al., Appellants, and S. SOMASUNDERAM et. 'al.
S. C. 351—D. C. Jaffna, 6,056jM.
Thesa/oalamai—Action for pre-emption—Decree entered in plaintiff’s favour—Subse-quent execution of conveyance by District Court Secretary—Date of -nesting oftitle in pre-emptor—Prescription. Ordinance, s. 6-—Civil Procedure Code,ss. 200, 333.
Where, in an action for pre-emption, the Secretary of the District Courtis ordered by Court to execute a conveyance in favour of the pre-emptoron account of the -wilful failure of the defendants to do so, title vests in thepre-emptor from the date of the Secretary’s conveyance and not from the dateof the decree.
In an action for pre-emption, the plaintiff obtained decree and DistrictCourt Secretary’s conveyance in his favour but subsequently suffered damagesby reason of an obligation to pay off a mortgage created by the 1st defendant(co-owner) in respect of the property in question during the pendency of theaction and after the 1st defendant had. obtained a re-transfer from the 2nddefendant (the vendee)—
Held, that the plaintiff was entitled to bring a second action to recover thedamages suffered by him and that the period of prescription in respect ofhis claim for damages commenced from the date of the conveyance executedby the Secretary of the District Court-.
-O-PPEAL from a judgment of the District Court, Jaffna.
H. V. Perera, Q.C., with A. Nagendra, for Plaintiffs-Appellants.
<S. Nadesan. Q.G., with C. Chellappah, for 1st Defendant-Respondent.
N. E. Weerasooria, Q.C., with H. W. Tambiah and C. Renganccthan,lor 2nd Defendant-Respondent.
U Uft • UlU/tT. VtAfWe
PFT.T.R, J.—Arumugam v. Somasunderam
January 23, 1957. Pcixe, J.—
The action out of which, this appeal arises was instituted, on the 31stOctober, 1949, by the 2nd plaintiff along with her husband, the 1stplaintiff, for the recovery of Rs. 3,000 as damages against two defendants.The cause of action has its origin in D. C. Jaifna case No. 326 filed on24th November. 1942, in which the 2nd plaintiff as the owner of a 2/9thshare of a land called Pallanthoddam claimed the right under the Thesa-waLamai to pre-empt the balance 7 9th share conveyed by the 1st defen-dant, her step brother, to the 2nd defendant by a deed, No. 1591, of the23rd March 1942. The 2nd plaintiff was successful in case No. 326 but, besi-des depositing in court the market value of the 7 '9th share, she was obligedto pay off a mortgage created by the 1st defendant on the 8th March,1945, after he had obtained a re-transfer from the 2nd defendant. Thesum claimed in the present case represents in effect the extra outlay ofmoney for clothing herself with an unencumbered title to the 7/9thshare. The learned trial Judge held that the 2nd plaintiff suffereddamages but dismissed the action on the ground that her claim wasprescribed.
Before dealing with the questions raised on this appeal it is necessaryto set out in greater detail some other events in case No. 326. Thedecree in this case was entered on the 23rd March, 1945. but a few daysearlier, namely, on the 8th March, 1945, the 2nd defendant by deedNo. 9951 marked P6 conveyed the land back to the 1st defendant andimmediately after by deed No. 9952 marked P7 the latter mortgagedthis land and two others as security for a loan of Rs. 3,000. The relevantportion of the decree of the District Court dated 23rd March, 1945, readsas follows :
“ …. it is ordered and decreed that the 2nd plaintiff be and she ishereby declared entitled to pre-empt the 7/9 share of the land men-tioned in the schedule and belonging to the 1st defendant and thedefendants do execute a transfer deed in favour of the 2nd plaintiff forthe 7 /9 share of the said land free from all encumbrances created bythe defendants in respect of the said land. ”
Each of the defendants appealed separately and both appeals weredismissed on 4th April, 1946. Thereafter the defendants wilfullydefaulted in executing the conveyance ordered by Court and on the 25thOctober, 1946, the Secretary of the District Court on an order made bythe Judge executed the conveyance P5 in favour of the 2nd plaintiff of"7/9th share of the land ££ in pursuance of the decree of the District Courtof Jaffna dated 23rd March, 1945, and the Supreme Court decrees dated4th April, 1946, entered in the said case No. 326. ”
On the 12th March, 1947. the mortgagee on deed No. 9952 filed D. C.Jaffna case No. 3431—vide 3 D1—to enforce the mortgage against the1st defendant and the two plaintiffs in the present ease and a brother ofthe 2nd plaintiff. It may here be mentioned that for the purpose of thepresent case we are not concerned with the 2nd plaintiff’s brother or withthe plaintiff mortgagee who was the 3rd defendant in the present case andagainst whom the action has been dismissed. A mortgage decree in
PTTLLE, J.—Arumugam ». Somasunderam
case No- 3431 was entered on the 22nd November, 1948. An appealfrom this decree taken by the 1st plaintiff, the 2nd plaintiff and herbrother was dismissed on the 7th October, 1949, and on the 10th July,1950, a sum of money sufficient to satisfy the decree was deposited inCourt towards which the twaplaintiffs contributed Rs. 3,000 which is thesum claimed as damages. The sum deposited by them in case No. 326to pre-empt 7/9th share was Rs. 1,166'67.
In holding against the plaintiff on the issue of prescription the learnedDistrict Judge held that the cause of action was the failure of the 1st and2nd defendants to execute in terms of the decree in case No. 326 aconveyance of the property free from encumbrances. He stated, “whetherihe obligation arose on the date of the District Court decree 23rd March,1945, or the Supreme Court decree. 4th April, 1946, the claim is prescribed•as this action was instituted on the 31st October, 1949. ” He rejectedthe submission that the cause of action arose on the execution of the■Conveyance P5 dated 25th October, 1946, by the Secretary of the DistrictCourt. Even if it did, he thought, that as more than three years hadelapsed before the present action was filed, the plea of prescription oughtto succeed.
In the chain of events leading up to the institution of the present case,the decree of 23rd March, 1945, in case No. 326 has its proper place butin my opinion it would be wrong to state that the cause of action givingrise to the claim for damages is the decree referred to. The immediateright of the plantifFs, on the decree being entered up, was to get itexecuted. The execution proceedings terminated with the signing by-the Secretary of the Court of the conveyance P5 of 25th October, 1946,with the result that the plaintiffs had thereafter to look to the conveyance•and not to the decree for the assertion of any rights, relating to 7/9thshare, against the defendants. In my view the contention on behalf ofthe plaintiffs that their rights must be determined in relation to P5 andnot to the decree is sound. It has been argued that having regard to•section200 of the,Civil Procedure Code and the judgmentof Wijeyewardene,
• J-., in. Karthigesu et al. v. Parupathy ei al1 a conveyance is not necessaryto vest title in a pre-emptor who is successful in bis suit. It has alsobeen submitted on behalf of the 2nd defendant that she did not create=any encumbrance and that she did no more than re-transfer what she"bought on deed No. 1591 of the 23rd March, 1942, and that, therefore,she was not liable to the plaintiffs in damages for an act for which the1st defendant was solely responsible. In my opinion, it is not necessaryto enter into the merits of these arguments as long as the Secretary’sconveyance P5 and the decree on which it is based are not open tochallenge.
It is, however, interesting to note that unlike in our section 200 the■corresponding provision in 0.20 R.14 of the Indian Code reads,
“ Where the Court decrees a claim to pre-emption in respect of aparticular sale of property and the purchase money has not been paidinto Court, the decree shall—
“ (a) specify a day on or before which the purchase money shall beso paid, and
1 (iy45) 46 IV. L. Jti. 162.
Wijemanne v. Costa
(6) direct that on payment into Court of such purchase-money,together with costs (if any) decreed against the plaintiff, onor before the day referred to in clause (a), the defendant shalldeliver possession of the property to the plaintiff, whose titlethereto shall be deemed* to have accrued from the date of suchpayment, hut if the purchase money and the costs (if any) arenot so paid the suit shall he dismissed with costs. ”
The sentence underlined does not occur in section 200 of the CeylonCode and was added to the Indian Code ef 1S82.
By P5 read with section 333 of the Code the two defendants must be■deemed to have warranted that the 7/9th share conveyed by them wasfree from encumbrances. In fact it was subject to a mortgage at thedate of P5 and any rights of the plaintiffs to he reimbursed to the extentof the money paid to clear the encumbrance is one which flows from P5.The earliest date on which the defendants could be said to he in breach■of their obligation is the date of P5, namely, 25th October, 1946, and if-one reckons years from that date, applying section 6 of thePrescription Ordinance, the claim of the plaintiffs is not prescribed.
In my opinion the appeal succeeds and should he allowed with costs,both here and below.
Basuayax®, C.J.—I agree.