Suppiah Et Al V. Situnayake

1950 Present: Basnayake J, and Pulle J,

SUPPIAH et al, Appellants, and SITUNAYAKE, Respondent

S. C. 165.-D. C, Kandy, 2,413
 

Contract-Notarial agreement for sale and purchase of land-Provision for duration of three months only-Evidence of subsequent oral " extensions " of time limit- Inadmissible-Evidence Ordinance (Cap. 11), s. 92, proviso (4)-Prevention of Frauds Ordinance (Cap. 57), s. 2.

Where a notarially attested agreement relating to the purchase and sale of land provided that the agreement should be null and void at the expiration of three months from the date of its execution-

Held, that it was not open to a party, either under section 92 or any other provision of the Evidence Ordinance, to prove a subsequent oral agreement to keep the written agreement alive beyond the stipulated period of three months. The written agreement could be revived only by another writing attested by a notary as required by section 2 of the Prevention of Frauds Ordinance.

APPEAL from a judgment of the District Court, Kandy.

F. A. Hayley, K.C. with S. J. V. Chelvanayakam, K.C., N. Kurnarasingham and T. Arulanantham, for the plaintiffs appellants.

N. E. Weerasooria, K.C. with E. B. Wikramanayake, K.C, and A. L. Jayasuriya, for the defendant respondent.

Cur. adv. vult.

August 25, 1950. BASNAYAKE J.-

This is an appeal by the plaintiffs-appellants (hereinafter referred to as plaintiffs) from an order dismissing their action and condemning them to pay the defendant a sum of Rs, 30,000. The facts shortly are as follows :-

The Crown having taken steps to acquire the estate known as Matale Estate belonging to the plaintiffs, they were anxious to purchase another. The defendant, who was negotiating with the Dangan Rubber Estates, Limited, of London (hereinafter referred to as the Dangan Company) through its Colombo agents, Lewis Brown & Company, Limited, for the purchase of its estates in Matale, agreed with the plaintiffs to arrange for the sale to them of an estate called Hapugahalande, in extent 749 acres, for Rs. 450,000. On July 14, 1945, they executed the agreement P1 whereby they agreed with the defendant to purchase Hapugahalande. The agreement provided that-

(a) on its execution the plaintiffs should pay to the defendant Rs. 15,000 as earnest money ;

(b) that the earnest money was to be refunded in case the defendant failed to fulfil the terms of the agreement ;

(c) that the earnest money was to be appropriated by the defendant in full satisfaction of his brokerage, commission, services, &c, under the agreement if its terms were fulfilled ;

(d) that the plaintiffs should within 30 days of being called upon by the defendant to do so pay a further Rs. 35,000 by postdated cheque in favour of Lewis Brown & Company, Limited, realisable on the date of execution of the deed of transfer ;

(e) that the defendant should negotiate a loan of Rs. 400,000 on a mortgage of Matale Estate and Hapugahalande ;

(f) that the defendant should negotiate a loan of Rs. 200,000 only on a mortgage of Hapugahalande in the event of the payment by the Crown of the compensation for the acquisition of Matale Estate within the time contemplated by the agreement;

(g) that the agreement should be null and void at the expiration of three months from the date of its execution.

(h) that the defendant should in addition to refunding the earnest money pay Rs. 45,000 as damages in case he sold Hapugahalande to any other person.

At the time the plaintiffs and the defendant executed the agreement for the purchase and sale of Hapugahalande the defendant had not executed his agreement with the Dangan Company. According to him that agreement was executed ten days later on July 24, 1945.

The defendant failed to carry out the terms of his agreement with the plaintiffs within the period of three months for which it was to endure. At the defendant's request the plaintiffs agreed to purchase t

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