Ratwatte V. Dullewe

 [Full Bench.]

Present : The Hon. Sir Joseph T. Hutehinson, Chief Justice,
 Mr. Justice Middleton, and Mr. Justice Wood Renton.

 RATWATTE v. DULLEWE.

 D. C, Kandy, 17,701.

Vendor and vendee-Liability of vendor to put vendee in vacant possession -Delivery of deed-Insufficiency-Failure to deliver possession- Cancellation of sale-Refund of purchase money.

    Apart from any express agreement, a vendor of immovable property is bound to deliver vacant possession (i.e., possession unmolested by the claim of any other person in possession) of the property sold to the vendee; on his failure to do so, the vendee is entitled to a rescission of the sale and a refund of the purchase money.

    The vendee is not obliged, in such circumstances, to sue the party in possession before proceeding against his vendor. A vendee of immovable property is not bound to accept delivery of the deed of transfer as sufficient delivery of possession of the property; he is entitled to ask his vendor to place him in actual possession.

    Where the question is between a purchaser and a third party, the delivery of the deed of transfer is sufficient to entitle the purchaser to maintain an action, as owner, against such third party.

    Judgments in Perera v. Amaris Appu 1 and Appuhamy 11. Appu- referred to and distinguished.

    APPEAL from a judgment of the District Judge of Kandy (J. H. Templer, Esq.).

    The defendant, who was the administrator of the estate of the estate of the late W: A. Dullewe, Adigar, put up for sale by public auction on September 9, 1905, certain premises belonging to the said estate. One of the conditions of sale was that the purchaser should be placed in possession of the said premises on payment of the full purchase money. At the sale the plaintiff became the purchaser of the premises, and he paid to the defendant the whole of the purchase money, and also the auctioneer's and notary's charges. One David Walter Dullewe, a nephew of the deceased, was in possession of the premises, claiming title under a verbal gift from the deceased, and the defendant was unable to put the plaintiff in possession of the premises. The plaintiff on March 20, 1906, instituted this action for a rescission of the sale, and for refund of the purchase money and other charges paid by him. The defendant executed a conveyance in favour of the defendant after the institution of this action.

Foot Notes:

1 (1878) 1 S. C. C. 54.
2 (1880) 3 S. C.C. 61.

    The defendant alleged that the plaint disclosed no cause of action against him ,for the rescission of the sale or the refund of the purchase money.

    The following issues were framed:

    (1) Does the plaint disclose a cause of action ?

    (2) Whether the defendant was bound by the conditions of sale or otherwise to put the plaintiff in possession of the property sold ?

    (3) Whether plaintiff is entitled to the relief claimed by him ?

    The District Judge held in favour of the plaintiff on all the issues, and entered judgment for him as claimed.

    The defendant appealed.

    Bawa (with him Van Langenberg), for the defendant, appellant.- This is an action which is not. recognized by the Roman-Dutch Law. The plaintiff was vested with full title as soon as the conveyance was executed and delivered to him. Delivery of the conveyance has been held to be a sufficient delivery of possession: Appuhamy v. Appuhamy;1 Don Andris v. Illangakoon.2 The purchaser should first sue the party in possession; and it is only if he fails in that action that he has a cause of action (de evictione) against his vendor. The Roman-Dutch Law does not allow a sale to be rescinded on the ground of failure to deliver possession. In this case the Judge expressly holds that the person claiming to be in possession of the house has no title to it, so that the purchaser will have no difficulty in asserting title against him. The defendant having already e

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