Nambuwasan V. Deonis Appu

1962 Present : Weerasooriya, S. P. J.

NAMBUWASAN, Appellant, and DEONIS APPU et al, Respondents

S. C. 109/1960-C. R. Matara, 6446

    Sale of land-Condition for retransfer within a fixed period on payment of a certain sum-Action by vendor for retransfer-Lis pendens not registered-Rights of bona fide purchaser for value-Registration of Documents Ordinance (Cap. 117), ss. 11 (1), 11 (3)-Deed of sale-Presumption of passing of valuable consideration.

On 17th May 1957 A sold to B a land subject to A's right to ask for retransfer Within one month upon payment of a certain sum. On 7th June 1957 A conveyed to C his rights to obtain the retransfer. Within the stipulated period of one month C brought into Court the required sum and sued B for the retransfer. C, however, did not register the lis pendens. Pending the action, and after the stipulated period, B sold the land outright to D, who bought it bona fide and for valuable consideration and duly registered the deed of sale.

Held, that ID acquired a good title to the land as against C. C was therefore not entitled to obtain a retransfer from B.

Held further, that where a transaction embodied in a deed is on the face of it a sale, the deed itself constitutes prima facie evidence of passing of valuable consideration. (Diyes Singho v. Herath, 64 N. L. R. 492, referred to.)

APPEAL from a judgment of the Court of Bequests, Matara.

H. W. Jayewardene, Q. C., with-D. S. wijejawardene, for plaintiff-appellant.

A. F. Wijemanne, for 2nd and 3rd defendants-respondents.

Cur. adv. vult. 

August 31. 1962. WEERASOORIYA, S.P.J.-

This is an action by the plaintiff-appellant for an order on the 1st defendant-respondent to convey to him a half-share of the land described in the schedule to the plaint. In the alternative he prayed that such conveyance be executed by Court. The land in question had been sold by H. G. Gunadasa and H. G. Charles Appuhamy on deed P3 of the 17th May, 1957, to the 1st defendant for Rs. 200 subject to the right of the vendors to ask for a re-transfer within one month on payment of the purchase price together with interest at 15 per cent. Gunadasa by his deed P2 of the 7th June, 1957, conveyed to the plaintiff his rights to obtain a re-transfer on P3. The plaintiff averred that by virtue of P2 he was entitled to obtain from the 1st defendant a re-conveyance of a half-share of the land, and that on the 13th June, 1957, he through his proctor tendered a sum of Rs. 102-50 (which represented one half of the purchase price and interest thereon as at that date) to the 1st defendant and called upon him to accept the same and execute a conveyance of the half-share of the land, which he failed to do. The sum of Rs. 102-50 the plaintiff brought into Court when filing his plaint.

In the original plaint, filed on the 15th June, 1957, only the 1st defendant was sued. The Court issued summons on him returnable on the 2nd September, 1957. There is nothing to show that summons was served on the 1st defendant. Apparently the process-server had reported that the " defendant " refused to accept the summons saying that the name was incorrect. It is not clear whether the " defendant " referred to was the 1st defendant or some other person on whom service of summons was attempted. However, the 1st defendant appeared in Court on the summons returnable date and was given time till the 21st October, 1957, to file answer. In the answer, which was eventually filed by him on the 17th February, 1958, he stated that after the lapse of one month from the date of the execution of P3 he, as the owner of the land, sold it to a third party whose name he did not disclose. As it transpired later, that party is the 2nd defendant, the deed by which the transfer was effected is 3D1 of the 19th June, 1957, and the 2nd defendant himself, by deed 3D2 of the 12th January, 1958, had transferred the land to the 3rd defendant. 3D1, on t

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