Present  : Wood Renton C.J. and Shaw J.   1915.

SIRIATTU v. RAN MENIKA.

102-D. C. Kurunegala, 5,342.

Vendor and purchaser-Land sold free from encumbrances-Purchaser unable to obtain possession owing to existence of a usufructuary mortgage-Rescission of sale.

Defendants sold to plaintiffs a land, covenanting that it was free from all encumbrances; but in point of fact it was subject to a usufructuary mortgage, and the plaintiffs were unable to obtain physical possession.

Held (over-ruling the objection that the existence of such an encumbrance was not a defect in the thing sold, and constituted no ground for the rescission of the sale, but merely entitled the purchaser, on paying off the mortgage, to recover the amount and incidental expenses as compensation from his vender), that the plaintiffs were entitled to a rescission of the sale.

THE facts appear from the judgment.

A. St. V. Jayewardene, for the defendants, appellants.

No appearance for the plaintiffs, respondents.

Cur. adv. vult.

June 7, 1915. WOOD RENTON C.J.-

This case raises an interesting point of law. The defendants sold to the plaintiffs the field described in the plaint for a sum of Rs. 800, covenanting in their deed of agreement that the property was free from all encumbrances. It was, in point of fact, subject to a usufructuary mortgage, and the plaintiffs were unable to obtain physical possession of the lands. They bring this action, claiming in 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 their plaint. The defendants appeal.

The District Judge has not entered into a question which was raised by the issues as to whether or not the plaintiffs were aware of the existence of the mortgage. He says that it does not matter whether they were so or not, in view of the express covenant for freedom from encumbrances. The defendants' counsel contended that under the Roman-Dutch law the existence of such an encumbrance as we have here to do with is not a defect in the thing sold, and constitutes no ground for the rescission of a sale, but merely entitled the purchaser, on paying off the mortgage, to recover the amount, and incidental expenses, as compensation from his vendors.

(See 3 Maasdorp 161, Berwick's Voet 523, and Grotius 3; 5, 15.) It is in my opinion, unnecessary to consider in the present case the question whether this is the law of Ceylon is cases in which a deed of transfer is silent as to encumbrances, for I do not think that the passages on which the defendants' counsel relies have any application where a deed of sale contains an express covenant for freedom from encumbrances, and where the encumbrance that in fact exists is one that makes it impossible for the vendor to give to his purchaser vacant possession of the land in the sense in which that term has been defined in Ratwatte v. Dullewe1[(1907) 10 N. L. R. 304.] and similar decisions. I would dismiss the appeal, with costs.

SHAW J.-

The plaintiffs in this case, by deed No. 35,435 dated September 24, 1913, purchased from the defendants a field called Timbirigasmulla for the sum of Rs. 800. The deed contained a certificate by the vendors that the property sold was not subject to any mortgage security, and was free from all encumbrances. In fact it appears that the land is subject to a usufructuary mortgage for Rs. 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, and damages, or, alternatively, that the defendants may be ordered to return the purchase money and pay damages.

The District Judge has ordered the defendants to give possession to the plaintiffs and to pay Rs. 200 damages, an