1947 Present: Howard C J. and Soertsz S.P.J

PERERA, Appellant, and MORAES, Respondent.

S. C 286 -D. C. Colombo, 112Z.

Specific performance-Agreement to transfer portion out of lot allotted in partition decree-Lot less in extent than portion agreed upon-Vagueness of contract-Subject-matter insufficiently identified-Can agreement be enforced ?

One Lewis agreed to transfer to plaintiff 20 perches out of a lot that would be allotted to him in a partition case that was pending. Lewis died and the defendant as his heir was allotted lot H in lieu of his undivided interests. Lot H was in extent 13.88 perches. Plaintiff sued defendant for the transfer of lot H for a price in proportion to the extent. Defendant contended that the contract could not be enforced because it was vague in that the property to foe transferred was not sufficiently identifiable and that it was impossible of performance because Lewis was allotted only 13.88 perches.

Held, that specific performance could be enforced.

APPEAL from a judgment of the District Judge, Colombo.

N. K. Choksy, K.C. (with him V. Thillainathan), for the defendant, appellant.

N. E, Weerasooria, K.C. (with him J. M. Jayamanne and W. D. Gunasekera), for the plaintiff, respondent.

Cur. adv. vult.

October 24. 1947. HOWARD C.J.-

The defendant appeals from a judgment of the District Court, Colombo, giving judgment for the plaintiff as claimed together with costs. The plaintiff by an agreement dated February 12, 1944, entered into an agreement with one Don Lewis by which Lewis agreed to transfer to him for a sum of Rs. 750 a portion of land in extent 20 perches out of the lot that would be allotted to Lewis in the partition case then pending. The transfer was to be executed within two months of the final decree in the partition case. It was established that on the execution of the agreement the plaintiff paid Rs. 50 to Don Lewis and agreed to pay the balance of Rs. 700 at the execution of the transfer. On March 15, 1944, Lewis received from the plaintiff two sums of. Rs. 100 and Rs. 60 and gave the plaintiff two promissory notes in respect thereof. Don Lewis died on April 9, 1944, leaving the first defendant his sole heir. The final decree in the partition case was entered on September 13, 1944, and the first defendant as the heir of Lewis was allotted lot H in extent 13.88 perches. The plaintiff thereupon requested the first defendant to execute a transfer of the 13.88 perches for the balance due, namely, Rs. 520 less Rs. 215 or Rs. 305. The first defendant has refused to execute the transfer. After filing the action the plaintiff discovered that, when the first defendant filed, his answer he had disposed of lot H to the second defendant who was subsequently added as a party.

The District Judge has held that, although Don Lewis was not entitled to the extent of land he had contracted to convey to the plaintiff, the plaintiff was entitled to specific performance of the agreement. The

only question at issue is whether the District Judge was correct in law in coming to this conclusion. Mr. Choksy has contended that the contract is unenforceable (a) because it is vague, the property to foe transferred not being sufficiently identifiable; and (b) because it is impossible of performance Inasmuch as Lewis was only allotted 13.88 perches.

In regard to (a) it is a proposition of law that Courts before enforcing a contract must be satisfied that it is certain. Uncertainty may arise in various ways.(1) where the contract is so vague in its general terms that the obligations of the parties are not ascertainable, (2) where the subject-matter of the contract is not sufficiently identified, (3) where the parties are not sufficiently identified (4) where, in the case of a sale the price is not ascertained, and (5) where some material term of the contract is omitted. Mr. Choksy has contended that the present case comes within (2) and