JAYEWARDENE A.J.—Mohamed v. Asiya Umma.
1932Present: Dalton J. and Jayewardene A.J.
MOHAMED v. ASIYA UMMA174—D. C. Colombo, 2,781.
Estoppel—Land acquisition proceedings—Waiver of rights by party beforeChairman, Municipal Council—Reference to Court—Subsequent transferof rights—Validity of waiver.
In land acquisition proceedings, first defendant, second defendant, andone X claimed interests in the lot acquired. X waived her rights infavour of the second defendant, and a reference was made to the DistrictCourt for adjudication between the claims of the first and second defend-ants. Subsequently X transferred her interests in the lot to the thirddefendant, who intervened in the action.
Held, that the waiver by X of her rights did not create an estoppelagainst her or the third defendant.
PPEAL, from an order of the District Judge of Colombo. The factsappear from the judgment.
L. A. Rajapakse (with him Manicavasagar), for third defendant-appellant.
Garvin (with him Ismail), for first defendant-respondent.
June 13, 1932. Jayewardene A.J.—
The Chairman of the Colombo Municipal Council acquired, for thepurpose of constructing a destructor tip, a portion of the land situatedat Bloemendahl road, bearing assessment No. 67, and described aslot 2 in the Surveyor-General’s plan No. 19,560 dated July 17, 1928,marked 3D1.
The whole land, bearing assessment No. 67, is shown in plan No. 388,dated December 6, 1928, and made by Surveyor Marikar, 3D3. Itcontains 3 acres 3 roods and 10.5 perches and has been divided into eightlots, Nos. 1, 1A, IB, 1C, 2, 2A, 3, and 3A, by the Surveyor. The landoriginally belonged to one Saibo Mapulle Habiboo Mohamado Markarby deed No. 7,320 dated November 17, 1868. Saibo Mapulle Markar andthree others divided the land into three portions, shown in Mr. CharlesSekwallies’ survey dated November 7, 1869, as Nos. 1, 2, and 3 andgifted portion No. 1 to Markar's brother Uduma Lebbe Markar bydeed No. 2,214 dated November 8, 1869, portion No. 2 to Markar’sdaughter Muttu Natchia alias Pattuma Natchia by deed No. 2,212 of thesame date, and portion No. 3 to Hawwah Umma by deed No. 2,210, alsoof the same date. Mr. Sekwallies’ plan is annexed to the deeds No. 2,212and No. 2,214 at pages 329 and 358 of the record. A small portion ofthis land was acquired for public purposes and compensation given tothe owners in 1876. Uduma Lebbe died in 1881 and his brother, the
JAYEWARDENE A.J.—Mohamed v. Asiya Umma.
donor, Marikar, died in 1893, having possessed the portion No. 1 duringhis lifetime. Pattuma Natchia and Hawwah Umma, the daughter ofthe donor, entered into possession of portion No. 1 on the death of thedonor and possessed that portion without any question or dispute on thepart of Uduma Lebbe’s heirs. Pathuma Natchia and Hawwah Ummaby deed No. 400 dated May 31, 1907, 3D6, divided the lot No. 1 into equalportions marked A and B according to the survey dated August 6, 1906,made by C. H. Frida, Surveyor, each portion containing 1 rood 34£perches. Lot A, which adjoined her one-acre block No. 2 was allotted toPathuma Natchia and lot B was allotted to Hawwah Umma. In plan C3the lots 3, 2, and A and B (forming lot 1) are clearly shown and lots 2and A coloured green form a distinct entity. The sisters seem to havemade an encroachment on the west and this was also divided equallybetween them as shown in Frida’s plan dated April 16, 1925, 3D8 ; andthe lot 1 rood 8 perches, which adjoined her own portion,, was given toHawwah Umma, her husband being I. L. Marikar Hadjiar.
Pathuma Natchia by.two deeds dated 1902 and 1907 gifted her intereststo her son Abdul Azees and the latter by deed dated May 28, 1928, trans-ferred his rights to his wife Asiya Umma, the first defendant. PathumaNatchia herself. gifted whatever interests she had to the first defendantJ^y deed No. 231, dated January 5, 1926. Hawwah Umma gifted all herinterests by deed dated April 29, 1929, to the third defendant who wasdescribed as “ the son of our cousin Omer Lebbe Marikar ”. As a matterof fact Omer Lebbe Marikar was the son of Uduma Lebbe, uncle ofPathuma Natchia and Hawwah Umma, these three being the originaldonees.
To turn to the acquisition proceedings before the Chairman of theColombo Municipal Council. After some negotiations those who appearedon April 18, 1929, were—
,(1) I. L. M. Hadjiar, husband of Hawwah Umma.
Omer Lebbe Marikar, son of Uduma Lebbe, by their Proctor N. M.Znheed, and
. A. M. Faleel, son of Asiya Umma, and Proctor Abdul Cader for her.
The parties agreed to accept Rs. 12,500 per acre making Rs. 25,387.50
The compensation was to be paid as follows: —
To I. L. M. Hadjiar……10,03076
To Asiya Umma……11,94816
To Abdul Cader….. .3364
To the District Court for adjudication between
Asiya Umma and Omer Lebbe Marikar. .3,072 54
The Proctors signed the agreement on behalf of their clients. TheChairman accordingly filed his. libel of reference on July 5, 1929, andasked for an order apportioning the sum of Rs. 3,072.54 awarded as
JAYEWARDENE A.J.—Mohamed v. Asiya Umma.
compensation and as to which there was a dispute. Asiya Umma andOmer Lebbe Marikar alone were made defendants, sis the only claimants,but the third defendant was allowed to intervene and was added as aparty on October 23, 1929. After triai the learned District Judge declaredthe first defendant entitled to the whole of the money in deposit, and thethird defendant has appealed.
It was first contended on behalf of the first defendant that the Courtcould not go beyond the reference and that title had vested in the Muni-cipal Council at the date of the transfer to the third defendant. InGovernment Agent, Sabaragamuwa v. Asirwatham x it was held, where theclaim is put forward after the land is vested in the Crown, that theclaimant is interested to the extent of his interest in the compensation,which, on the vesting of the rights of himself or his predecessors in titlein the land in the Crown, takes the place or is substituted for his interestin the land. This case was followed in Dyson v. Kadirasan Chetty The inquiry is not restricted to those persons who are named in the libelof reference, intervenients being entitled to come in and be joined asparties in the regular way. This contention was rightly rejected by thelearned District Judge on the authority of these two cases.
Then the first defendant set up a plea of prescription to the lot 1A.It will be seen that the greater part of this lot falls within the portionmarked B in Frida’s plan, of August 6, 1906. The portion marked A andcoloured green was allotted to Pathuma Natchia and the lot B to HawwahUmma at the partition of the lot No. 1. The deed No. 400 dated May 31,1907 (3D6) makes that clear. Frida’s plan of 1921 (3D8) shows that thisdivision was always recognized and acted upon. The deed in favour ofthe first defendant does not convey any title to the portion marked B inFrida’s plan of 1906. The learned District Judge has given good reasonsfor rejecting first defendant’s plea of prescription. The portion of landacquired marked 1A in plan 3D3 was as far as it fell within lot B in Frida’splan of 1906 approximately two-thirds, the property of Hawwah Ummahat the date of the acquisition.
It was next contended, and the learned District Judge has upheld thecontention^ that Hawwah Umma had waived her rights to any share of themoney that was deposited in Court. It is said that her Proctor and herhusband agreed to accept the sum of Rs. 10,030.76 and renounced allclaim to the further sum of Rs. 3,072.54, which, according to the note ofthe Chairman, was reserved for division between Asiya Umma (firstdefendant) and Omer Lebbe Marikar (her cousin) after adjudication bythe District Court. . The learned Judge says that this is not a very goodinstance of an estoppel, but that Hawwah Umma had deliberately waivedher claim. He thinks that Hawwah Umma led first defendant to believethat she had only to fight the second defendant (Omer Lebbe) and firstdefendant entered upon the contest in that belief and Hawwah Ummashould not now be allowed “ to cut the ground .under her feet ” by makingtransfer in favour of the third defendant, instead of making a claimherself. The result the learned Judge states is curious, but could not behelped, and according to him the only claimant left in the field is thefirst defendant, and although she is entitled to only a portion of thei 29 N. I.. R. 3G7.2 30 N. L. R. 21C.
JAYEWARDENE A.J.—Mohamed v. Asiya Umma.
money in dispute, the result of her having successfully counter-claimedis that she must be declared entitled to the whole of the money indeposit.
Waiver is the abandonment of a right and is not effectual unless madewith consideration. The fact that the other party acted upon it issufficient consideration. (13 Hals: 165.) The principle of waiver or ofapprobation or reprobation involves the root notion of conductproductive of change of situation in someone else. (Caspersz on ModernEstoppel and Resjudicata, 3rd., ed., p. 377.) In Stackhouse v. Barnston Grant M.R. observed that it is difficult to say precisely what is meant bythe term “ waiver ” with reference to its legal effect. A mere waiversignifies nothing more than an expression of intention not to insist uponthe right, which in equity will not without consideration bar the rightany more than at law without satisfaction would be a plea. Similarly•a promise not to enforce an accrued legal right is not binding unless thereis consideration for it, or the debtor has altered his position. In Williamsv. Stem* Lord Justice Bramwell remarked “I do not think that thedefendant’s promise was sufficient to prevent him from putting into forcethe powers of the Bill of sale : it was not an undertaking which boundhim : the promise was not supported by any consideration. The plaintiffwas not induced to alter his position ” and Cotton L.J. thought that thedefendant made no representation which operated to the plaintiff’sdisadvantage ; he simply uttered his own private intentions and gaveno promise which was enforceable in law.
In the present case at the acquisition proceeding the sum ofRs. 11,948.16 was allotted to Asiya Umma, first defendant, for PathumaNatchia’s admitted, share in the land, that is for 2A and 1C andRs. 10,030.76 was allotted to Hawwah Umma’s husband for her share inthe land, that is for 3A. As to these there was no dispute. It has notbeen suggested in the evidence or found by the Judge that the firstdefendant did any act to her own detriment or disadvantage as a result ofanything done by Hawwah Umma or on her behalf. Hawwah Umma madeno waiver or disclaimer in favour of Asiya Umma. On this point theevidence of Proctor Zaheed is clear. He says that Hawwah Umma wasagreeable that Omer Lebbe should receive the compensation she wouldget for lots 1A and 1C. He had not realized her position as she hadgiven up her rights in favour of Omer Lebbe. He also says that hewould have claimed lot 1A for Hawwah Umma, if there was a disputebetween Asiya and Hawwah Umma. It is to be remembered that OmerLebbe is the ‘son of Uduma Lebbe, the original donee and owner of thewhole of lot No. 1. Hawwah Umma and Pathuma Natchia claimed thatlot by prescription, and divided it between themselves in 1907 by thedeed No. 400. It was natural that Hawwah Umma should feel disposed torenounce her rights in favour of Omer. She would have no such kindlysentiment towards Asiya Umma, and renounced nothing in her favour.
In Mussumat Oodey Kooivur v. Mussumat Ladoos where it was con-tended that the defendant had abandoned all her right to the property;in claim, the Privy Council was of opinion that if the abandonment was
(1800) 10 Ves. Jun. '453, 456.* (1879) 5 Q. D. D. 409, G. A..
(1869-70) 13 Moore's I. A. 085, 598.
JAYEWARDENE A.J.—Mohamed v. Asiya Umma.
to prevent the defendant from recovering the property, it must do soeither because it operated as a conveyance, or as a contract to conveythe interest which she claims, or because it operated by way of estoppel.Their Lordships held that there had been neither a conveyance nor acontract to convey and that she was not estopped in any way. Theysaid, “ In the first place there is no consideration whatever for this con-veyance of her particular interest. Neither does Oodey Koowur act onany .representation made by her or alter her position in any way. Thereis no misrepresentation to Oodey Koowur of any sort or kind. OodeyKoowur was acquainted with the actual facts of the case just as much asMussumat Ladoo was.” In the present case Asiya Umma knew thefacts as much as Hawwah Umma and her position is exactly similar toOodey Koowur in the Privy Council case. In Jordan v. Money1 it washeld by the House of Lords that when a person possesses a legal right,a Court of Equity will not interfere to restrain him from enforcing it,though, between the time of its creation and that of his attempt to enforceit, he has made representation of his intention to abandon it. To raisean equity in such a case there must be a misrepresentation of existingfacts, and not of mere intention. The representation must be meant tobe acted upon and it must be acted upon accordingly. This case wasfollowed in Citizen’s Bank of Louisana v. First National Bank of NewOrleans s.
At the argument, the case of Janaka Ammal v. Kumalathammal8 wascited to show that a party may by conduct or waiver, be estopped fromclaiming a legal right. In that case Holloway C.J. said “The plaintiffnow insits upon a valid family compact varying the ordinary rules ofinheritance. She has, however, previously appealed to the general rule,litigated the matter through three courts, designedly keeping back thecompact upon which she now seeks to insist. There can be no strongercase of an absolute waiver of that contract, and of conduct rendering itwholly inequitable to permit her now to insist upon it.” This case doesnot apply.
The eighth issue, whether Hawwah Umma or her successor in title isestopped from maintaining any claim to the land has been decided in theaffirmative. In Stuart v. H'ormusjee * it was held that the word “ inten-tionally ” was used in section 115 of the Evidence Act for the purposeof declaring the law here to be precisely the same as the law in England,and that the party making the representation means it to be acted upon,and that it is acted upon accordingly. In Rodrigo v. Karunaratne5Bertram C.J. has summarized the law on the subject of estoppel, andadopted the principle that it is essentially necessary that the representa-tion or the conduct complained of, should have been intended to bringabout the result whereby loss has arisen to the other party or his positionhas been altered. As I have pointed out Asiya Umma knew the state ofthe title and no mistaken belief was created in her by any statement onbehalf of Hawwah Umma, nor has she been prejudiced or her positionaltered in any way. The issues as to waiver and estoppel should havebeen decided in the negative and in the third defendant’s favour.
(1854-6) 5 H. L. 185.3 (1873) 7 Mad. H. C. 263.
(1873) L. R. G H. L. 352..* 18 N. L. R. 489.
21 N. L. R. 360.
184JAYEWARDENE A.J.—Mohamed v. Asiya Umma.
Then the Teamed District Judge has considered the validity of thedeed of gift by Hawwah Ummah to the third defendant, although, as he says,no question was raised on the point. He holds that the gift was invalidbecause a Muslim gift has to be supplemented by delivery of possessionand there was no evidence whatever to show that possession was given.One would hardly expect, to find evidence of possession, if no point wasmade, of it at the trial, but for whatever it is worth there is the evidenceof the third defendant who says that he has possessed a portion since the *date of his deed, which was pointed out to him by the Surveyor Maricar.There is no' doubt that the principle of Muhammadan law is that posses-sion is necessary to make a good gift. If a donor does not transfer to thedonee, so far as he can, all the possession which he can transfer, the giftis not a good one. There is nothing in the Muhammadan law to preventthe gift of a right of property. The donor must, so far as it is possible forhim, transfer to the donee that which he gives, namely, such right as hehimself has, but this does not imply that, where the right to propertyforms the subject of a gift, the gift will be invalid unless the donortransfers what he himself does not possess, namely, the possession of thecorpus of the property. He must evidence the reality of the gift bydivesting himself, so far as he can, of the whole of what he gives. AnwariB.egum v. Nizam-ud-din In the case of Mullick Abdul Guffoor v. Muleka3a gift of mulikana rights, that is, the right to receive an annual allowance,was upheld, and in Mohamed Buksh Khan v. Hosseni Bibi3 the PrivyCouncil upheld a gift of property which was not at the time of the gift inthe donor’s possession. The fact that the donor had been out of posses-sion and therefore had not delivered possession was held not of itself toinvalidate the gift. The whole question as to Muhammadan gifts andseisin or delivery of possession was considered in 83 D. C. Jaffna 26,351,S. C. M., 27.5.32, and the principle stated in Anwari Begum v. Nizam-ud-din (supra) was followed. I would hold that the gift to the third defend-ant was valid. It appears to me that the appeal of the third defendantis entitled to succeed. The third defendant is entitled to as much oflot 1A as falls within the portion marked B in Frida’s plan dated Augustfi, 1906..
The parties have properly agreed, in order to avoid further costs, thatthe third defendant should be declared entitled, in the event of success, totwo-thirds of the money deposited in Court and the first defendant tp one-third.
I would set aside the decree and declare the third defendant entitled tothe two-thirds and the first defendant to one-third of the sum deposited.The first defendant will pay the third defendant one-half of the taxedcosts both in this Court and in the District Court. The third defendantis not to be paid without notice to the claimant Vythilingam.
Dalton J.—I agree.
» 21 All. 10j.
2 JO Cal. 1112.
3 15 Cal. 684.