Present: Lyall Grant and Akbar JJ.

NUGAWELA  v. GEORGE

20- D. C. Kandy, 34,559

    Sale-Action for purchase price-Plea of failure of consideration- Warranty of title-Vacant possession.

Where the plaintiff sued the defendant on a cheque given for the purchase price of an interest in land, it is open to the defendant to raise the defence of failure of consideration on the ground that the plaintiff had no title to the land sold by him.

PLAINTIFF sued defendant on a cheque which had been given as the purchase price of certain rights in land, but payment of which had been subsequently stopped. Defendant pleaded that there was a total failure of consideration, in that plaintiff had no right, title, or interest in the land. At the trial Counsel for defendant sought to raise certain issues with a view to proving this, but the District Judge disallowed them on the ground that on the execution of the deed plaintiff was entitled to immediate payment. Defendant appealed.

H. V. Perera, for defendant, appellant.-When a person is sued on a bill of exchange or cheque he can plead total failure of consideration. English law must apply (Chalmer's Bill of Exchange, 8th ed., 114).

It is not necessary for the purchaser to sue party in possession (Ratwatte v. Dullewe 1[110 N. L. R. 304.]).

Navaratnam, for plaintiff, respondent.-An examination of the documents, put in evidence, establishes the following facts :-

(1) On a purchase from all the co-owners the defendant is now the owner and possessor of the entirety of the land.

(2) Two of these co-owners had on an earlier deed transferred their rights to the plaintiff.

(3) The defendant obtained from the plaintiff a transfer of these very rights, with the knowledge that the deed, on which the plaintiff based his title, was executed during the pendency of a partition suit which was eventually abandoned.

(4) The execution of a deed of conveyance by the plaintiff transferring the self-same rights, was the consideration for the cheque, payment of which defendant stopped.

In the light of the above facts it cannot be argued that there is a failure of consideration. Further, under our law a purchaser is-under an obligation to pay the price, the moment his vendor

executes a deed of conveyance, in pursuance of a contract of sale. On the score of any defect of title, discovered thereafter, the v. purchaser cannot withdraw from the sale and refuse to pay the George Price .The only primary obligation resting on the vendor is to
give the purchaser " vacant possession ", which in the present case the defendant obviously has. The Full Bench ruling in Jamis v.
Suppa Umma et al. 1[117 N. L. R. 33.] supports this submission. Clearly the question of title cannot be raised in these proceedings.

H. V. Perera, in reply.-Knowledge is no defence. In Roman-Dutch law a distinction must be drawn between a sale of a land and the sale of " the right, title, and interest. " In the case of sales by Fiscal the purchaser can in one instance refuse to pay, i.e., where the debtor had no saleable interest. (Berwick's Voet, p. 406.)

In Jamis v. Suppa Umma case the vendor held subject to a fidei commissum. It is not a case of a complete failure of consideration.

March 21,1929. LYALL GRANT J.-

This is an appeal from an interlocutory order made in the District Court of Kandy refusing to a defendant, sued on a cheque for the purchase price of an interest in land, the right to raise in defence the question of his vendor's title.

On October 31, 1926, the defendant and plaintiff executed a deed by which the plaintiff transferred to the defendant all his right, title, and interest in certain lands. The deed cited the plaintiff's title as contained in a deed of December 11 and 28, 1925, by which two of the common owners of the lands in question conveyed to him an undivided one-eighth share of the lands in question.

The defendant paid the price by cheque, but s