Thidoris Perera Et Al. V. Eliza Nona

1948     Present: Wijeyewardene A.C.J. and Basnayake J.

THIDORIS PERERA, et al., Appellants, and ELIZA NONA,
Respondent

S. C. 293-D. C. Colombo, 127/Z

 

Trusts Ordinance-Agreement to sell divided lot under final decree in partition action-Registered-Sale to third party after final decree-Specific performance-Is it existing contract ?-Section 93.

By an agreement duly registered, first and second defendants agreed to sell to the plaintiff within three months of the final decree in a partition action then pending the divided lot that would be allotted to them in the final decree. They however sold this lot to the third defendant. In an action by the plaintiff for specific performance of the agreement-

Held that the agreement was an existing contract within the meaning of section 93 of the Trusts Ordinance and that specific performance could be enforced.

APPEAL from a judgment of the District Judge, Colombo.

H. V. Perera, K.C., with K. Herat, for third and fourth defendants, appellants.

C. V. Ranawake, with H. A. Kottegoda, for plaintiff, respondent.

 

Cur. adv. vult.

 

July 9, 1948. BASNAYAKE J.-

By interlocutory decree entered of record on Ma 20, 1931, in D. C., Colombo, Partition Case No. 32,434, the first and second defendants to the present action (hereinafter referred to as the vendors) were each 

 

declared entitled to an undivided one-twelfth share of an allotment of land called Dawatagahawatta marked lot A in plan No. 2,470 dated December 10, 1929, made by James Rodrigo, Surveyor. By agreement No. 1,022 dated June 8, 1938, which was duly registered, they agreed to sell to the plaintiff-respondent (hereinafter referred to as the purchaser) " the divided lot or lots that may at the final partition in pursuance of the said interlocutory decree of the said lot A of Dawatagahawatta be allotted to them at or for the aggregate price or sum of Rupees One hundred (Rs. 100) ". Its conditions are as follows: -

" Now it is hereby agreed-

(i) That in consideration of the sum of Rupees One hundred (Rs. 100) lawful money of Ceylon well and truly paid to the vendors by the said purchaser the said Atukorale Aratchige Sirisena Perera and Atukorale Aratchige Chandrasena Perera shall within three months from the date of the final decree in the said partition case No. 32,434 of the District Court of Colombo by a valid deed assign transfer set over and assure unto the said Jayasinghage Eliza Nona or her heirs or assigns the divided lot or lots or in the event of the said purchaser being allotted one lot in common with the vendors their interest in such lot as may be allotted to them in the scheme of partition from and out of the said land called lot A of Dawatagahawatta fully described in the schedule hereto free from encumbrance with all the right title and interest whatsoever of the said vendors and of each of them in to out of or upon the same.

(ii) That the purchaser shall herself bear the cost of the said

Click Here to Read the rest of this document