069-NLR-NLR-V-58-W.-G.-D.-KIRIGERIS-APPUHAMY-Appellant-and-M.-H.-M.-NAZIR-Respondent.pdf
1956 Present : H. If. G. Fernando, J., and.T. S. Fernando, J.
W.G. D. KIRIGJ2RIS APPUHA3IY, Appellant, and3L H. 31. NAZIR-, Respondent
S. C. 143—D. a. Tongalle, 6,325
Vendor and purchaser—Actio venditi—Issue of non-delivery.
When inimovublo property is sold, tho actio venditi for tho purchase pricoM ould bo available to tlio vondor only M'lion dolivory of tho proporty has boonitmdo to tho purchaser. Tho purchnsor may, therefore, rqiso tho issuo of noii-delivory oven if it Mas not pleaded in tho answer.
ApPR.1L from a judgment of the District Court, Tangalle.
JO. P. P. Coonclillckc, with A. K. Premadu-su, for the defendant-appellant.
.1. Cl. dc Silva, for the plaintiff-respondent.
Cur. ado. vult.
June 25, 1950. H. N. Cf. Fjsrkaxdo, J.—
Tiiis was an action for the recovery of a sum of Rs. 1,000, being thebalance amount of the purchase price of a land sold to the defendant by theplaintiff. The failure to pay the balance was admitted, but the defendantalleged in his answer that his rights to the property sold Ivad been dis-puted in another action filed against him in the same Court, and pleadedthat the money was being retained pending the determination of thataction. The evidence adduced at the trial indicated however that thedefendant was also relying upon a somewhat different ground, namelythat the plaintiff had not placed him in possession of a boutique on theland.
This question of non-deli very was raised in an issue suggested by thedefence, but the issue was withdrawn’upon objection, presumably takenon the ground that it was not pleaded in tho answer. I do not thinkthat such a pica Mas necessary. The plaint averred that the defendanthad purchased the land but did not allege that he had obtained delivery ofthe property sol’d. Rut the actio venditi for the purchase price lieswhen delivery has been made to the purchaser and he fails to make payment-.
(1 Vi lie : Principles of South African Law, 2nd Edn. p. 364.) “If he(the purchaser) has not paid the price and his title is threatened, he isentitled to refuse payment until the vendor gives security against cvic-tiori (Norman on Purchase and Sale in South Africa, 2)ul Edn. p. 305.)To succeed in the present action tho plaintiff should have proved duo
"delivery, and the question of delivery was therefore lightly raised for •determination. – The objection to that issue and its subsequent•withdrawal had the result that there was no adjudication upon a relevantquestion.
I would therefore set aside the decree under appeal, and remit the caseto tiro District Court for a trial dc novo, with a direction that an issueas to delivery be admitted, together with any other relevant issue. Inthe circumstances, I tlu'nk each party should bear liis own costs of thefirst trial and of this appeal.
T. S. Fkiinando, J.—I agree.
Decree set aside.