Appuhamy Et Al V. Silva

1914 Present: Lascelles C. J, and De Sampayo A. J.

APPUHAMY et al. v. SILVA

420-D. C. Chilaw, 4, 699.

Agreement to re-convey land-Penalty in case of default-Action for specific performance-Refusal to abide by the terms of the agreement-Is formal tender of price necessary ?

An agreement between the plaintiffs and defendant was in these terms: " On the said Appuhamy and Yohanna (plaintiffs) of the second part tendering to me the sum of Rs. 1, 715 and demanding a transfer of the lands, I (defendant) shall convey the same to them Should I of the first part be unwilling or neglect to transfer the said lands on their demanding a transfer and tendering the said sum of Rs. 1, 715 within two years from the expiry of the said period, a sum of Rs. 450 shall be paid by me as a penalty to the second party, and if we of the second part fail to get a transfer within the said period by paying the said sum of Rs. 1, 715 we shall not be allowed to demand a transfer of the said property after the said period, and we shall not so demand. "

Held, that plaintiffs were entitled to enforce specific performance of the agreement on tender of the money within the stipulated time, and that defendant had not the option of either conveying the property or of paying Rs. 450 as an alternative.

Held, further, that plaintiffs were not precluded from suing on the contract for specific performance by their failure to make a legal tender of the money, inasmuch as the defendant by his own act in repudiating the contract had made actual tender unnecessary and meaningless.

THE facts are set out in full in the judgment,

E. W. Jayewardene, for the plaintiffs, appellants.

Sansoni (with Bawa, K. C. ), for the respondent.

Cur. adv. vult.

January 22, 1914. Lascelles C. J. -

The facts which gave rise to this appeal are the following. By deed P 1 dated February 9, 1907, the plaintiffs granted a usufructuary mortgage of the property now in question to the defendants to secure a sum of Rs. 1, 275. This deed contained a covenant on. the part of the mortgagors that they would not redeem the mortgage for a term of five years, the intention being that the mortgagee should enjoy the rents and profits of the land, which are of considerable value, for at least that period.

In 1908 the plaintiffs fell into trouble. They had remained in occupation, of a house on the mortgaged premises, and were arrested on the complaint of the defendant on a charge of stealing coconuts. The plaintiffs then entered into negotiations with the defendant for a settlement of the criminal charge. The matter ended in the agreement which the plaintiffs are now suing to enforce. The substance of the agreement was that the plaintiffs should convey the property to the defendant for a consideration of Rs. 1, 715, which was made up of the original mortgage debt of Rs. 1, 275, which was discharged, a further advance of Rs. 200, and a balance of Rs. 240 to cover costs and damages in the Police Court and notarial expenses.

The deed of transfer to the defendant was executed on January 7, 1908, when about four years and two months of the defendant's term of possession under the usufructuary mortgage was still to run, On the same day the parties executed the agreement on which the present action is brought.

After reciting the conveyance to the defendant, the agreement declares that the property comprised in the conveyance " shall be possessed by me as I like from this date until the expiration of the four years and two months, and we, the said two parties, hereby bind ourselves that within a period of two years after the expiry of the said four years and two months, on the said Don Hendrick Peris Appuhamy and Yohanna Hamine, who have bound themselves hereto as of the second party, or either of them tendering to me the sum of Rs. 1, 715, which was the purchase amount, and demanding a transfer of the said two lands and portion of land, I shall receive the sa

Click Here to Read the rest of this document