1949     Present: Jayetileke S.P.J. and Canekeratne J.

DE SILVA, Appellant, and SENARATNE et al, Respondents

S. C. 413-D C. Matara, 16,626

Specific performance-Agreement to transfer land-Registered-Stipulation for damages on failure to transfer-Refusal to transfer-Right of election to pay damages-Trust-Existing contract-Chapter 72, section 93.

First to seventh defendants agreed to transfer to the plaintiff the lot allotted to them by the final decree in a partition action. The agreement was registered. It was further stipulated that if the defendants failed to effect the transfer within one month of the decree they were to pay to the plaintiff a certain sum of money. The defendants failed to convey the land to the plaintiff but in breach of the agreement conveyed it to the eighth defendant. The defendants claimed the right to pay the stipulated sum of money in lieu of performance of the agreement.

Held, that the defendants had no right of election.

Held further, that in the absence of evidence that the plaintiff had waived his right to specific performance, the contract was an existing contract and that the eighth defendant having notice of the agreement was in terms of section 73 of the Trusts Ordinance under obligation to convey the land to the plaintiff.

APPEAL from a judgment of the District Judge, Matara.

H. V. Perera, K.C., with H. W. Jayewardene, for plaintiff appellant.

M. L. S. Jayasekere, for 1st and 8th defendants respondents.

Vernon Wijetunge, for 4th defendant respondent.

U. A. Jay asunder e, for 7th defendant respondent.

Cyril E. S. Perera, for 3rd defendant respondent.

Cur. adv. vult.

March 9, 1949. JAYETILEKE S.P.J.-

This is an appeal in an action to enforce the performance of an agree­ment for the sale of certain shares of lands.

The material facts are the following:-The 1st to 7th defendants, claimed to be entitled to 11/32 shares of three lands called Millagahadeniya, Kalawellagoda and Heenwilahena. The 2nd defendant in­stituted Action No. 11,203 of the District Court of Matara for the partition of Kalawellagoda, and one Hendrick Wanigesekera instituted Action No. 11,331 for the partition of Heenwilahena. The plaintiff was made a party to the said action as he was entitled to certain shares of the said lands. During the pendency of the said actions the plaintiff arranged with the said defendants for the purchase of their shares, and entered into the agreementP1with them dated November 5, 1938, attested by J. P. Ranasuriya, Notary Public. P1 provided that the said defendants shall, within one month from the date of the final decree in action No. 11,203, sell to the plaintiff, and the plaintiff shall, within the said period, buy from the said defendants the undivided share of Millagaha-

deniya and the lots that would be allotted to them in the said actions in lieu of their undivided shares for a sum of Rs. 1,829.50 subject to the following conditions :-

(1) That the party of the second part shall pay in advance to the parties of the first part the said sum of Rs. 1,829.50.

(2) That the parties of the first part shall before the expira