Sellathurai V. Annaledchumy

[IN THE PRIVY COUNCIL]

1961 Present : Viscount Simonds, Lord Tucker, Lord Cohen,
Lord Guest, Mr. L. M. D. de Silva

L. SELLATHURAI and another, Appellants, and ANNALEDCHUMY,
Respondent

Privy Council Appeal No. 34 of 1960

S. C. 134 of 1958-Application in Revision in D. C. Colombo, 360641M

Contract-Dowry deed-Portion of dowry to be given within a specified period on condition that grantees should transfer certain property to grantor-Subsequent sale of the property to a third party-Bight of grantees to sue grantor-Construction of deed-Recitals in deed-Can they be basis of a written promise ?-Prescription Ordinance, 9. 7.

A dowry deed was executed under which a part of the dowry was immediately given to the grantees (husband and wife). It further provided (if the word " give " can be interpreted not .only aa referring to an act in praesenti but also as importing a promise to pay at a future date) that when a second sum of Rs. 15,000 was paid by the grantor within a period of one year the grantees should effect a transfer of certain scheduled lands in favour of the grantor.

The sum of Rs. 15,000 was not paid to the grantees within one year of the deed or at all. Repeated demands were made for payment and were ignored, but at no time was a demand accompanied by an offer to effect a transfer of the scheduled lands. In the present action claiming payment of Rs. 15,000 the grantees did not by their plaint make any offer to effect a transfer of the lands upon payment of Rs. 15,000 and, after the defendant had filed her answer, put it out of their power to do so by selling the lands. The sale price substantially exceeded Rs. 15,000.

Held, that it was contrary to well established equitable principles that the plaintiffs should at the same time obtain payment of the sum of Rs. 15,000 and retain the lands which they had agreed to transfer, unless they could show that time was of the essence of the contract. The severity of the penalty for failing to pay within the prescribed time should make any Court reluctant to enforce the letter of the agreement. The plaintiffs having put themselves in a position in which they were unable to perform their part of the contract were not entitled to enforce the performance of the contract by the defendant.

Quaere, whether a claim based on aa antecedent contract referred to in the recitals in a deed or upon a covenant implied in the recitals should be regarded as a written promise.

APPEAL from a judgment of the Supreme Court delivered on October 30, 1958.

Walter Jayawardena, for the plaintiffs appellants.

T. O. Kellock, with D. J. Thampoe, for the defendant respondent.

Cur. adv. vult

June 20, 1961.  [ Delivered by VISCOUNT SIMONDS] -

This appeal from a judgment and decree of the Supreme Court of Ceylon is concerned with the rights of the parties under a Dowry Deed of the 10th September, 1949. The appellants claim that under and by virtue of this deed there is due to them from the respondent the sum of Rs. 15,000. Their claim was sustained by the District Court of Colombo but on appeal was rejected by the Supreme Court of Ceylon.

The parties to the deed were Nallathamby Sellathurai (since deceased), his wife the respondent, Annaledchumy and Sellammah, the widow of Suppiah, who were called the Dowry Grantors, and the appellants Leelawathy, the daughter of the first two parties, who was called the dowry grantee, and her husband Karthigesu Sunthera Rajah. It is an ill drawn document giving rise to many difficulties and it is necessary to state it fully. It is in a form appropriate to a deed poll, though in fact signed by all the parties that have been named. It recites that a marriage had been arranged between Karthigesu and Leelawathy, that it was agreed that a cash dowry of Rs. 30,000 and jewels worth Rs. 5,000 should be given to the dowry grantee by the first and second named dowry grantors, that in consideration of

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