Samujh v Subhadra [1979] FJSC 90; Civil Action 34 of 1972 (1 February 1979)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

Civil Action No.34 of 1972

BETWEEN:

RAM SAMUJH
s/o Parma
Plaintiff

AND:

SUBHADRA
d/o Ram Swarup as Executrix
Defendant

Mr. S.M. Koya for the Plaintiff
Mr. K.C. Ramrakha for the Defendant

JUDGMENT

Plaintiff's claim is for specific performance of an agreement dated 25th July 1967 by which defendant agreed to sell to plaintiff 150 acres of freehold land.

The hearing of this case was, in many ways, most unsatisfactory. It commenced at Suva on 15th September 1975 but could not be concluded owing to defendant's inability to travel due to partial paralysis. His evidence was taken later at Labasa Court on 4th March 1976. Counsel who represented plaintiff at this hearing had insufficient instructions and at his application, which was not opposed, the case was adjourned to Suva to a date to be assigned for completion.

Owing to counsel's other commitments it was not possible to assign an early date. In the meantime, defendant died. On 29th November 1977 defendant's widow Subhadra d/o Ram Swarup as Executrix was, by order of this Court, substituted as defendant. Counsel, however, requested that no date for completion be assigned for sometime as an amicable settlement of the dispute was likely.

On 3rd November 1978 counsel informed the Registrar of the Supreme Court that no settlement has been reached and asked for a date for completion. This case was finally completed on 8th December 1978.

The land in question is situated in Vanua Levu near Labasa. According to the certificate of title (Exhibit 2) the land, comprising 1,500 acres, belonged to three brothers the defendant Gaya Prasad, Hari Prasad and Shiu Prasad. Shiu Prasad's one-third share was in 1958 transmitted to his widow Sharda Wati as administratrix. The land which is delineated at the back of the certificate of title lies to the north of the Dreketi river.

In 1965 serious differences arose between Sharda Wati on the one hand and defendant Gaya Prasad and his brother Hari Prasad on the other and the matter went to Court. It was settled out of Court and the terms of settlement were signed by all three on 30th January 1967. According to paragraph 6 of this document (Exhibit 4) the land was to be subdivided into three equal portions in accordance with a sketch plan drawn by T.A. Bowden, a surveyor and annexed to the terms of settlement (Exhibit 4). The sketch clearly shows three narrow rectangular areas running north from the Dreketi river, parallel to one another. Defendant's portion was the middle one. The sketch plan was also signed by the three parties, the solicitor K. Chauhan and the surveyor T.A. Bowden.

On 25th July 1967 defendant entered into a sale and purchase agreement (Exhibit 1) with plaintiff under which he agreed to sell "approximately 150 acres" out of his portion of the land particularly enclosed in red on a sketch plan annexed to the agreement. The plan follows the sketch drawn by T.A. Bowden and is signed by plaintiff, defendant and the solicitor K. Chauhan. The red marking shows a rectangular area adjacent to the Dreketi river. On it are the word "Ram Samujh 150 acres".

Clauses 8 to 12 of the agreement are in following terms:-

"8. The purchaser hereby agrees that if such sub-division is approved and finally carried out and he fails to pay to the Vendor the balance purchase price then due and owing then the Vendor may at his own option forfeit such payments as made by the purchaser to date and the Vendor may sue for specific performance of this contract.

9. The Vendor agrees that except for non-performance of this contract as occasioned by paragraph (6) of this agreement if he fails to proceed with this agreement or otherwise attempts to revoke or alter this contract then the purchaser may sue him for specific performance without prejudice to his right to recover damages.

10. The parties hereto are mutually agreeable to the said land being surveyed by the said Mr. T.A. Bowden and by any other surveyed for the purpose of defining the purchaser's boundary if Mr. Bowden is not agreeable or not satisfactory.

11. The purchaser hereby agrees and declares that after the said land has been surveyed by the said Surveyor and his own boundary as to the said land defined he shall forthwith cause a new title to be issued in his own name at his own expense, and the vendor shall execute such papers and documents as maybe necessary to give and affect a valid transfer of the said land in favour of the Purchaser.

12. The parties hereto agree and declare that the said surveyor be instructed to survey the said land as near as possible as shown on the sketch plan heretofore mentioned and that the final survey work as carried out by the said surveyor shall be final and binding."

According to Chauhan's evidence which I accept Bowden was unwell and was not available to do the surveying. Another surveyor, Iqpal Mohammed was with the consent and approval of the three owners, requested to carry out the subdivision. This he did and submitted the plan to them which they all signed. It was registered on 4th June 1970 as deposited plan No. 3572.

Defendant, in his evidence, admitted signing the plan. He also said,

"....The original idea was to get the area divided into 3 lots of 500 acres each. The middle one is mine. There is a patch of 150 acres 17 perches at the bottom of my piece. I had it surveyed. I had it marked out."

Defendant says that the agreement of sale and purchase was not explained to him and that the plan attached to him was not shown to him when he signed the agreement. I do not accept that evidence. I have no hesitation in accepting the evidence of Chauhan the solicitor who, at that stage, acted for both the parties. Defendant's signature appears on the sketch plan attached to the agreement; it also appears on the sketch plan drawn by Bowden and the surveyed plan drawn by Iqbal Mohammed. I find it as a fact that defendant knew exactly the nature of the agreement he was entering into and that he did agree to sell to defendant approximately 150 acres adjacent to the river as marked on the attached plan. I also accept that when surveyed in accordance with these instructions the exact area turned out to be 150 acres and 17 perches.

I am satisfied that the full agreed purchase price has been paid. I also find as a fact that soon after the agreement was signed plaintiff went onto the land in question with defendant's knowledge and consent, and has been in possession of it ever since.

Defendant's main argument is that specific performance may not be granted of the agreement dated 25th July 1967 as the sketch plan annexed to it does not describe the land with sufficient certainty. Boundaries are mere estimates and the figure 150 acres mere approximation. The sale was subject to survey and subdivision. The surveyed plan which was registered on 4th June 1970 as D.P.3572, and which properly defines the land in question cannot, says defendant, form part of the agreement whose specific performance is sought by plaintiff.

The main thing to decide, in my view, is whether, at the time the agreement was signed the identity of the land sufficiently fixed and the parties were ad idem.

Bowden's plan (Exhibit 4) showed clearly that the middle one of the three portions was defendant's land. Defendant's admits this. Plan annexed to the sale and purchase agreement follows this sketch and out of defendant's portion 150 acres adjacent to the river is marked in red. Apart from the river the other three boundaries are straight lines. I am satisfied that that is the piece of land, 150 acres more or less, defendant agreed to sell and plaintiff agreed to purchase. The surveyor followed these instructions scrupulously and the exact area contained by the three straight boundaries and the river is 150 acres 17 perches. I do not think there, at any time, was any uncertainty as to the identity of the land which was the subject of the agreement. (See Stonham on Vendor and Purchaser p. 167.) both parties knew and agreed that title would be given upon completion and registration of the subdivisional plan. This has now been done.

Defendant's counsel also complains of delay on plaintiff's part in seeking specific performance. This, however, he has not pleaded. In any case, while there has no doubt been considerable delay in bringing this matter to Court, this has not been due to any fault on plaintiff's part. Agreement was signed in July 1967 but D.P.3572 was not registered until June 1970. This cannot be held against the plaintiff. There has also been all manner of delay since the writ was issued. That again was not due to any fault on plaintiff's part. He has been in possession of, and cultivated, the land since the signing of the agreement.

I find that the sole reason for defendant's refusal in 1972 to give title was realisation on his part that a much higher price could then be obtained for this property owing to rapidly rising value of freehold land.

Under these circumstances it will be iniquitous to deprive the plaintiff of the benefit of his bargain.

There will be a decree of specific performance in his favour.

As for the additional 17 perches, I am satisfied that this was as near as the surveyor could make it to 150 acres, in accordance with the instructions given to him. The whole area was to be sold at a fixed total price of $2,800. The price was not fixed at so much per acre. If the area had turned out to be 17 perches less than 150 acres, plaintiff could not have demanded a reduction of the purchase price. Likewise, in my view, defendant cannot claim any additional price for the 17 perches.

According to the evidence there seems, at some stage, to have been some informal talk between defendant and plaintiff about defendant returning the purchase money and keeping the land has nothing came of it. This, in any case, is neither pleaded nor relied upon by the defendant and does not, therefore, arise for consideration.

(G. Mishra)
JUDGE

Suva,
1st February 1979