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Nov. 29,19 JO
Present: Wood Renton J.
CARUPPEN CHETTY v. W1JESINGHE.
320—C. R. Matara, 5,884.
Estoppel—Fiscal's sale—Owner of land failing to notify his title to the
purchasers—Registration of deed.
Under a decree obtained by the plaintiff against the respondentand others as executors of the last will of one W, the plaintiff seizedthe land in dispute as property of W and purchased it himself.
The defendant, who had a registered transfer in his favour,was present at the Fiscal’s sale, but deliberately refrained fromnotifying his title to the purchaser.
Held, that the defendant was estopped from setting up his titleas against the plaintiff, and that the fact of registration didnot. afford protection to the defendant, as ho had fraudulentlyconcealed his title.
A man who, having a charge or encumbrance upon a property,stands by and allows another to advance money oil it, or, for thatmatter, to buy it under the impression that it is unencumbered,knowing that the latter is going to advance money, is estoppedfrom setting up that interest against the title of the person whomhe lias deceived.
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rj>HE facts are set out in the judgment.
H. A. Jayewardene, for the appellant.
A. Sf. V. Jaycwarddne, for the respondent.
November 29, 1910. Wood Renton J —
This is an interesting case, and it was well argued on both sides.The plaintiff-appellant claims a declaration of title to an undividedseven-tenths share of a garden, which is described in the plaint. Theproperty admittedly belonged to one Deonis Wijesinghe, who wasindebted to the plaintiff-appellant in a sum of Rs. 526'25 on apromissory note. Wijesinghe died leaving a last will, which wasadmitted to probate in case No. 1,514 of the District Court ofMatara. The respondent is a son of Wijesinghe, and is one of theexecutors of his will. The appellant sued the respondent and hisco-executor for the debt due to him by Wijesinghe in case No. 4,326of the District Court of Matara. He obtained judgment and issuedwrit, and a seven-tenths undivided share of the land was sold bythe Fiscal in execution and purchased, by the appellant, whoobtained his Fiscal’s certificate. The respondent was present at thesale, but made no claim to the land, and said nothing to indicatethat he had any title to it. The Fiscal’s transfer in favour of theappellant is dated May 3, 1909. At the date, however, of theFiscal’s sale to the appellant the respondent had himself acquiredtitle to the land under a deed of transfer dated October 23, 1908,and registered on February 18, 1909. That deed was obtainedunder circumstances which are fully stated in the judgment of theCommissioner of Requests, but which I do not think it is necessaryfor me to set out in this judgment, inasmuch as the appeal wasargued before me solely on the question as to whether, or not therespondent was estopped from relying now on his title under thedeed dated October 23, 1908, by his omission to give notice of hisclaim to the property to the appellant at the time of the Fiscal’ssale. The learned Commissioner of Requests holds on the evidenceand 1 am not prepared to say that his finding on this point is wrong—that the respondent’s silence on the occasion of the sale to theappellant was due to a deliberate intention on his part to deceive,the appellant for his own emolument The Commissioner ofRequests holds that, as the respondent in his personal capacity wasnot a party to case No. 4,326 of the District Court of Matara, and as,further, he merely stood by and permitted the appellant to purchasethe property, he is not legally estopped now from setting up hisown paper title, however dishonest his behaviour may have been.He has accordingly dismissed the appellant’s action, but withoutcosts, to mark, 1 suppose, his reprobation of the respondent’s
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• WoodRbnton J.
conduct. I am glad to be able to come to a different conclusionSection 115 of the Evidence Ordinance does not enact as law inCeylon anything different from the law of England on the subjectof estoppel (Ameer Ali, 4 ed., p. 643). It is old and clear EnglishLaw that a man who, having a charge or encumbrance upon aproperty, stands by and allows another to advance money on it,or, for that matter, to buy it under the impression that it isunencumbered, knowing that the latter is going to advance money,is estopped from setting up that interest against the title of theperson whom he has deceived (see Troughton v. Gitley,1 ex parteFord*, Ramsden v. Dyson*, and C. P. Nundo Kumar Nasker v. Bano-mail Gayan1 2 * 4). That principle has been applied even in the case of astranger to the transaction. Here the respondent was somethingmore than a stranger. As one of the executors of Wijesinghe’swill, he was himself a party to the action in execution of the decreein which the property was sold to the appellant. The case ofProctor v. Bennis? does not help the respondent. The ratio deci-dendi there was that the defendants were aware of the existenceof the plaintiff’s patent, and that, therefore, there was no dutyencumbent on him to warn them that articles which they werepurchasing were an infringement of that patent. “ If a purchaser,”said Cotton L.J. (S. C. at p. 748) in the argument, and the same lineis followed in the judgment, 46 knows of the existence of a patent,can you bring the case within the rules as to lying by ? Is not theprinciple this, that if I see a man acting in derogation of my rightswithout knowing that 1 have any, 1 am bound to tell him of them ;but if he knows I have rights, and puts an erroneous constructionon them, is there any obligation on me to warn him ?”
Mr. A. St. V. Jayewardene, the respondent’s counsel, arguedthat, even if the circumstances of the case were sufficient to form abasis for the doctrine of estoppel, the registration of the respondent’stransfer excluded the application of that doctrine. The very casescited by Mr. Jayewardene (see, for example, Dhondo Bai KristnaKanitkar v. Raoji6) show, however, that registration affords noprotection in cases of fraudulent concealment, the category to whichthe present case has been found by the Commissioner of Requeststo belong. Mr. Jayewardene’s last point was that there was nothingto show that the respondent’s silence was the proximate cause ofthe appellant’s purchase. One has merely, I think, to ask thequestion whether, if the respondent had disclosed his interest inthe land, the appellant would have purchased it as if it were anunencumbered property, in order to see the untenable character ofthis contention. 1 set aside the decree under appeal, dismissing
1 (2766) Ambl. 633.* (1902) I. L. R. 29 Cal. 871.
2 (1876) t Oh. D. 60S* (1887) 36 Ch. D.UO
* (JS66) L. R. I. Eng.- and It. App.6 (1895) /. L. R. 20 Bom. 29
129 and 1.40.
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the appellant’s action, and direct judgment to be entered in favour Nov. 29,1910of the appellant, declaring him entitled to the share of the propertyclaimed in the plaint, and ordering the ejectment of the respondent Renton j.therefrom, with damages as agreed upon at Rs. 5 a year from May camppen19, 1910, the date of the filing of the plaint, till the appellant has CfceitJtTbeen duly placed in possession of the property. The appellantis entitled to all the costs of the appeal and of the action. I willhear counsel on both sides further on the question, whetherthe respondent is entitled to any credit as regards his alleged debtagainst the estate.
I have now heard counsel on both sides on the question to whichI referred at the close of my judgment on the main point in the case,as to whether the respondent is entitled to any credit as regardsthe alleged debt against the estate. As the evidence stands on therecord before me there is no proof of that debt, and I think thatthe most equitable order to make on this point is to reserve therespondent’s rights, whatever they may be, to prove that debtagainst the estate, or otherwise as he may be advised.
CARUPPEN CHETTY v. WIJESINGHE