1918 Present: Ennis J. and Shaw J.

ABEYASEKERA v. GUNASEKERA.

102-D. C. Kalutara, 7,259.

Specific performance-Want of mutuality-Promise deliberately made.

An action for specific performance lies under our law if there is reasonable cause to support the contract.

The rule that specific performance should be refused for want of mutuality must be considered from the point of view of Roman-Dutch law, and not of English law.

THE facts are set out in the order of the District Judge, Allan Beven, Esq. : -

This is an action for specific performance, and plaintiff asks that defendant be ordered to execute a conveyance of half share of plaintiff's leasehold interests mentioned in deed of agreement 13,863 of November 10, 1915 (D 2). The facts are as follows. The defendant took on lease for a period of eight years 100 acres of rubber land on indenture of lease 15,860 of November 10, 1915 (D 1). for a sum of Rs. 35,000. At the execution of the lease the sum of Rs. 10,000 was paid on the same day the plaintiff and defendant entered into the deed of agreement D 2, whereby defendant agreed to assign over to plaintiff, subject to certain covenants. half of the leasehold interests, whenever plaintiff pays defendant the sum of Rs. 7,500 within two years from the date of the agreement.

The covenants referred to are: (1) the defendant was to carry on the lease and incur expenditure, and, after looking into accounts, if the expenditure and tine interest on Rs. 15,000 at 12 per cent. per annum exceed the income accruing from the property, the plaintiff should pay the defendant half of the sum in excess; (2) if the income exceed the expenditure and interest, half of the profit shall be regarded as paid by the plaintiff to defendant and set off against the sum of Rs. 7,500 due by him; (3) whenever within two years the sum of Rs. 7,500 or the balance found to be due is paid, defendant was to execute a transfer of half his interests to plaintiff; (4) in default of his doing so, this deed was to be cancelled: (5) if defendant failed to mate the transfer on payment being made of the Rs, 7,500. plaintiff had the right to sue him.

The defendant contends there is no consideration for, and want of mutuality in, the agreement, and therefore the Court cannot give the plaintiff the relief be seeks. This being a contract for specific performance, the principles of English law are applicable.

It is quite dear that at the execution of the contract the sum agreed upon between the parties was Rs. 7,500. It is not alleged that this sum was rendered to plaintiff, but he alleges that, as the income of the leasehold interests exceeded that sum, the defendant was bound, in terms of the agreement, to make a conveyance of half his interests. But it is essential in a contract such as this that plaintiff must show some real, substantial consideration proceeding from himself, and that consideration must be ascertained at the time of the execution of contract.

In this case there is nothing proceeding from him to defendant. As regards want of mutuality, the agreement is manifestly unfair and one-sided. There is nothing in the contract to compel plaintiff to pay the consideration and take he transfer. Defendant can bring an action only after the expiry of two years. He claims now in reconvention only because plaintiff instituted this action. The agreement becomes null and void if plaintiff within two years fails to pay the sum of Rs. 7,500. It will be seen, therefore, that the contract is unilateral, the defendant having no rights at all.

I  hold ,therefore, that for want of consideration and of mutuality, and on the ground of unfairness and hardship on defendant, plaintiff cannot maintain this action, which is dismissed, with costs.

The deed referred to in the case was as follows: -

D 2-Know all men by these presents.

The deed of agreement entered, into by arid between the two parties, Ne