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SINNAMY AIYER v. BALAMPIKAI AMMA
NLR31V47
Present : Dalton and Akbar JJ. 1929.
SINNAMY AIYER v. BALAMPIKAI AMMA.
449-D.C. Jaffna, 22,734.
Bond-Agreement to convey land-Payment of
damages in default- Period of prescription-Ordinance No. 22 of 1871, ss. 6 and
7.
A document setting out an agreement to convey land and in default, providing
for the payment of a sum of money as the value of the land and a further sum by
way of liquidated damages, is not a bond conditioned for the payment of money,
within the meaning of section 6 of the Prescription Ordinance, No. 22 of 1871.
An action upon such an agreement is prescribed in six years. APPEAL from a
judgment of the District Judge of Jaffna.
Plaintiff brought this action to obtain specific performance of an agreement to
convey certain lands or in the alternative to ' recover a sum of Rs. 750 and a
further sum of Rs. 500 by way of liquidated damages. The material part of the
document upon which the action was based was as follows: -
I the said party of the first part, do declare and undertake to convey by way of
deed one-half share of the remaining property (immovable) inclusive of my
acquisition belonging to me and my husband unto the party of the second part in
equal shares and also to pay a sum of Rs. 250 to the first-named person of the
second part for the remaining movable property within a period of one year since
the time of the, closing of the said last will and testament .... In the event
of my failing to convey the said property as agreed upon within the stipulated
time or within a period of two years from this date unto the respective persons
or their respective heirs, &c, I undertake to pay a sum of Rs. 750 for the value
of the immovable property I also agree and bind my heirs, Ac, to pay an
additional sum of Rs. 500 as liquidated damages.
The date of the agreement was March 16, 1919, and the plaint in the action was
filed on June 29, 1927. The agreement not being carried out, the cause of action
arose on March 16, 1921 ; the defendant pleaded that the action was prescribed.
The. learned District Judge held that the
instrument was a bond conditioned for the payment of money and that, under
section 6 of the Prescription Ordinance, an action on it may be commenced
within ten years of the cause of action.
H. V. Perera, for defendant, appellant-This action is framed as an action
for specific performance of an agreement to transfer land.
In Ismail v. Ismail [1 22 N. L. R. 476.] it was decided that the period of
prescription In the case of an agreement to transfer land is that laid down in
section 7 of Ordinance No. 22 of 1871, viz., six years. In this case too the
document is in substance an agreement to transfer land, and therefore section 7
would apply.
The mere provision in the document for damages and the value of the land to be
paid in the event of a failure to perform the agreement to transfer the land
does not give the document the character of a " bond " and make the period of
prescription ten years.
A " bond conditioned for the payment of money " has a definite technical legal
significance. Every undertaking to pay money on the failure to do something or
give something contained in a document does not make that document a bond. This
was the view taken in Simon v. de Silva. [2 1C. W. R. 71] That case discusses
the legal topic fully and, it is submitted, contains a correct exposition of the
law, viz., that it is not the mere form of the document that decides the
question whether a document was a bond or not.
This is not a case where part payment will stop the statute.
Soertsz, for plaintiff, respondent.-" Bond " is not defined in Ordinance No. 22
of 1871, it is taken over from the English Act. In English law it has a definite
technical meaning. See 3 Halsbury's Laws of England. As the word " bond " has
not been defined in our Ordinance, and as it cannot be given its full English
law significance in our law, we must g
