1926 Present: Dalton and Lyall Grant -J J. .

HAMEED et al. v. ZEYNAMBU et al.

 13-D. C. Galle, 22,833.

Transfer of immovable property-Reservation of the option to obtain a re-transfer-Assignment of the option-Assignee's right to enforce the option.

The first plaintiff transferred for consideration certain immovable property to the first defendant subject to the exercise of an option to obtain a re-transfer on payment of Rs. 3,000 before the expiration of four years. The second plaintiff obtained an assignment of the option for consideration on a duly registered notarial instrument. The first defendant had due notice of the assignment.

Held, that the option to re-purchase was an assignable interest and that the assignee was entitled to enforce it.

APPEAL from a judgment of the District Judge of Galle.

Hayley (with B. F. de Silva and Ismail), for plaintiffs, appellant.

Drieberg, K. C. (with H. V. Perera), for defendants, respondent. 28/15

September 24, 1926. DALTON J.-

The facts in this case are as follows: The first plaintiff Abdul Rahaman Abdul Hameed, by deed marked D1 dated July 15, 1921, sold and conveyed certain immovable property to the first defendant Zeynambu Nachia, who is the wife of the second defendant Abdul Mohideen, in consideration of the sum of Rs. 2,000, subject to a provision in the following terms:-

"If the said vendor, or his heirs, executors, or administrators shall be desirous of obtaining a re-transfer of the said premises and shall before the expiration of four years from the date hereof repay a sum of Rs. 3,000 before a notary public "-

he might obtain the preparation of a deed at his own expense and the vendee would transfer the property back to the vendor. By deed D2 dated January 28, 1924, the first plaintiff assigned all his rights under D1 to his wife Halma Umma for the sum of Rs. 50. This deed was never registered. Thereafter, by deed P1 registered on June 2, 1925, the first plaintiff, in consideration of the sum of Rs. 250, assigned all his rights under D1 to the second plaintiff Meera Lebbe Abdul Rahaman. Notice of this second assignment was given to the first defendant by letter P2 dated June 12, 1925. This letter also asked her to re-convey the property in terms of the deeds he had executed-(D1). The sum of Rs. 3,.OOO was to be paid on the signing of the re-conveyance. First defendant answered by her proctor (P3) chat she was ready to re-convey the property to the first plaintiff in terms of P1 and to no one else. This was accepted by plaintiffs (P4), but this acceptance was subsequently withdrawn, as the proctor of the two plaintiffs (who were not separately represented) found on examination of the Land Register that a caveat had been lodged in respect of this land by a creditor of the first plaintiff. The record of the lower Court gives no information as to the date of this caveat. He, therefore, insisted on a re-conveyance in favour of the second plaintiff, the assignee of the first plaintiff. Defendant maintained her objection, subject to her offer already made, and thereupon, on July 14, 1925, the two plaintiffs filed their plaint bringing Rs. 3,000 into Court and claiming a re-conveyance of the property to the second plaintiff. The defendants' answer pleaded that first plaintiff had no right to assign his rights under D1, and the sole issue framed was as follows: -

Are the plaintiffs entitled to ask for a transfer in favour of the second plaintiff ?

It will be seen that this issue is in such broad and indefinite terms as to give the defendant a very wide scope for defending the action. Evidence was accordingly tendered and admitted to show

inter alia that, apart from a denial o1! any right to assign, there had in fact been an assignment by the first plaintiff of his rights prior to the execution of P1 in favour of the second plaintiff. The learned District Judge came to the conclusion that the first plaint