1916 Present: Wood Renton C.J. and De Sampayo J.

FERNANDO, v. PERIS.

422-D. C. Negombo, 11,184.

Specific performance-Agreement to sell land within a specified time- Registration-Subsequent sale to a third party.

A person in whose favour a deed of agreement for sale of a land was executed by its owner is not by the mere registration of such deed in a position to enforce specific performance against a third party, to whom the land was sold subsequent to such registration.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for second defendant, appellant.

Samarawickreme, for plaintiff, respondent.

Cur. adv. vult.

November 20. 1916. DE SAMPAYO J.-

This case raises a point of law under the following circumstances. The first defendant was entitled to an undivided share of a land called Kosgahawatta, which was the subject of the partition action D. C. Negombo, No. 9,092. By deed No. 25,519 dated November 27, 1914, and registered on December 10, 1914, the first defendant agreed, in consideration of a sum of Rs. 500, of which he received Rs. 60 at the execution of the deed, to sell and convey to the plaintiff, within one month of the date of the decree in the partition action, the divided portion which might be allotted to him in the partition. The decree was entered in the action on January 20,

but two days later the first defendant, instead of conveying to the plaintiff, in accordance with the agreement, the portion allotted to him, executed in favour of the second defendant the deed of sale No. 9 dated January 22, 1915. The plaintiff impeaches this Fernando v. Peris deed as fraudulent and without consideration and claims specific performance, and in the alternative he prays for judgment for Rs. 60 paid in advance, and a further sum of Rs. 200 as damages against the first defendant. , Certain issues relevant to the question of fraud were suggested at the trial, but the District Judge did not inquire into or decide those issues, but disposed of the case on the issue whether the deed of sale No. 9 in favour of the second defendant was void by reason of the registration of the deed of agreement to sell the land to plaintiff. Belying on the decision in Carimjee Jafferjee v Theodoris,1[(1898) 5 Bal. 20. ] he held that the deed No. 9 was void in consequence of the prior registration of the deed of agreement, and gave judgment for the plaintiff in accordance with his prayer for a specific performance. From this judgment the second defendant has appealed.

The facts of the case of Carimjee Jafferjee v. Theodoris relied on by the District Judge are somewhat similar to those of the present case, and I think the District Judge correctly states the effect of that decision. The registration of a deed may be. notice to the world of the existence of it, but I am not prepared to agree with the holding that such constructive notice of an agreement to sell ipso facto makes void a subsequent sale by the owner to a third party, and that specific performance may be claimed as against such third party. In Mathes Appuhamy v. Raymond,2[ (1807) 2 N. L. R. 270.] which does no appear to have been cited or considered in Carimjee Jafferjee v. Theodoris, Bonser C.J. and Withers J. doubted whether under out law specific performance could be granted in a case where the vendor had by an actual sale and conveyance to a third person put it out of his power specifically to perform the contract. Mr. Samarawickreme, for the plaintiff, suggested that the learned Judges in that case had misapprehended the Roman-Dutch Law on the subject, and cited Nathan's Law of South Africa, vol. II., s. 840. But Nathan ibid, and Kotze's Note to Van Leeuwen, vol. II., p. 141, show that the Roman-Dutch authorities are not agreed as to the extent to which the Court will grant relief by specific performance in case of breach of contract. In South Africa, where Van Leeuwen has been more generally f