( 466 )
Present: Lascelles C.J. and De Sampayo A.J.
MOHAMMED BHOY et al. v. LEBBE MARICAR et al.
71—D. C. Colombo, 24,875.
Sale in execution of the rights of the fidei oommiasarius dosing the lifetimeof the fidudarius—Civil Procedure Code, e. 218 (k)—Saie by *person who has no title—Subsequent acquisition of title Ip thevendor—Exceptio rei venditse.
The interests of a fidei commisearius cannot be sold in executionduring the lifetime of the fidudarius, as it is a contingent interestwithin the meaning of section 218 (fe) of the Civil Procedure Code.
Where the interests of a fidei commisearius are sold in executionby the Fiscal during the lifetime of the fidudarius, the purchaser atthe Fiscal's sale does not get any title even on the death of the
Where a vendor had no title at the time of the sale, but after-wards acquires title, the purchasers title ia not confirmed from thetime that the vendor so acquires title: without a further deed fromthe vendor after he had acquired title, the purchaser has no right.
The plea of exceptio . rei vendita whi'h a vendee is entitled toset up against his vendor is not available against a subsequentpurchaser from the vender.
fjp HE tacts appear from the judgment of the Chief Justice.
Samamwickreme (with him Cooray), for the intervenients,appellants.—The conveyance to Carimjee Jafferjee, .though made byCaroline in the lifetime of her fattier, and therefore when she had notitle, became perfect on the death of her father. The. Ordinance No. 7of 1840 cannot affect this question. Even under the Roman-Dutchlaw a conventional transfer had to be registered., Alienations ofimmovable property were void* under the Roman-Dutch law, unlessthey were made before a Court. See Chellamma v. Nama.iiwayam.1These provisions of the Roman-Dutch law did not affect the case ofacquisition of title by operation of law. Under the Roman-Dutchlaw, where a vendor had no title, but afterwards acquires title, thepurchaser's title is confirmed from the time that the vendor soacquires title (Foet 21, 3, J). Ordinance No. 7 of 1840 only altersthe method of executing a. conventional conveyance.
The method of acquisition of title by operation of law. remainsunaltered. Where, for instance, a person' buys property in the nameof another person on trust, the title vests in the real purchaser,though there be no conveyance in his name. Similarly, where aI (1907) 8 Bol. 209 at page 210.
( 467 )
husband married in community buys property in hi6 name, a half of 1812.the property vests in the wife by operation of law on the death Mohammedof the husband. In Oantlwy v. Elkington,l it was held that section 2of Ordinance No. 7 of 1840 does not apply to the division of property Markerin community, which takes place by operation of law and not byconvention of parties.
The only question for us to consider is whether Caroline had asalable right to the property at the time she sold it to CarimjeeJafferjee. Unless .the Court holds that, the right is not salable, thesale is good both under the Roman-Dutch law and our law. Even aapes may be sold (Voet 18, 1, 13). *
The fifth defendant-respondent is barred by the exceptio retvendvUe et traditce from questioning the rights of the appellants.
See Guruhami v. Subaseris;2 Silva v. Shade AH;3 Voet 219 3, 3. Notonly a vendor, but even a purchaser from a vendor, is estopped.
The more equitable course is to uphold .the first sale as against thesecond sale by Caroline. Alwis v. Fernando 4 was a case of mortgageand is governed by other considerations. But contra see judgmentof Grenier J. in Goonatilleke v. Jayasuriya.5
There can be no question that the first defendant could havehimself sold his rights to the thirteenth defendant. The onlyquestion is whether the Fiscal could sell in execution such a right.
Once the will begins to speak, the rights of the parties are fixed. Itcannot be said that the right of the first defendant was only ** acontingent or possible right ” within the meaning of section 218 (k)of the Civil Procedure Code. See Lushingfon v. Samarasinghe*
Bawa, K.G. (with him Morgan de Saram), for fifth defendant*respondent.—A party who is not in possession cannot avail himselfof the exceptio rei venditce. Guruhami v. Subaseris 2 does nojt applyto the facts of this case. There is no estoppel which would bar therespondent from questioning the appellants’ title. Don Carolis v.
Jamm1 and Alwis v. Fernando 4 are binding authorities in favourof the respondent.
The Supreme Court has declined to accept the theory that aconveyance by A to B is a conveyance from A to C by reason ofsomething which had happened before the transfer.
H. J. C. Pereira, for the thirteenth defendant, respondent.-—Thesale in execution of the rights of a fidei commissarius during thelifetime of the fiduciarius is not valid. The words of section218 (k) are clear. The rights of the fidei commissarius is “ anexpectancy of succession by survivorship or a merely contingent or
* (1906) 9 N. L. B. 168.*■* (1911) U N. L. R.90.
(1910) 1$ N. If. R. 112.9 (19U) 24 jy. L. R. 65.
(1896) 1 N. L. R. 228.• (1897) 2 N. L. R. 295.
7 (1909) 1 Cur. L. R. 224.
( 468 )
possible' right oi interest." Dusking ton v. Samarasinghe 1 does notapply to a right ..of this kind. There was no fidei commimnm inthat case.
Samarawichreme, in reply.
Cur. adv. vvlt.
July 22, 1912. Lasoelles C.J.—
It is unnecessary to recapitulate the facts with reference to theappellants’ intervention, which are fully dealt with in the judgmentof the learned District Judge. The intervention relates to twoone-fourth shares, namely, (1) the share which devolved on BenjaminGomes, the first defendant, under his grandfather’s will, which shareis now claimed by the thirteenth defendant by purchase from thefirst defendant; and (2) the share which devolved on Caroline (a greatgranddaughter of the testator) under the same will, which shareis now claimed by the fifth defendant under a series of deedsbeginning with a conveyance from Caroline dated June 23, 1901, atwhich date both her mother and grandfather were dead.
The claim of the intervenients to the first of these shares, that is,the share which devolved on the first defendant, presents no seriousdifficulty. It is based on a Fiscal’s transfer dated September 23,1895, and regi^ered on May 30, 1896, in favour of one PalaniappaChetty, who conveyed the share to Carimjee Jafferjee, who in turnconveyed to Mohamedbhoy Allibhoy, the intervenients’ vendor.
The question is whether this share, in view of the provisions ofsection 218. (k) of the Civil Procedure Code, .was liable to seizure orsale in execution of a money decree. This sub-head of section 218provides that “ an expectancy of succession by survivorship or othermerely contingent or possible right of interest ’’ is not liable toseizure or sale. When the first defendant’s share was sold inexecution, his father, Lawrence Gomes the younger, the fiduciarim•under the will, was still living, so that the interest of the firstdefendant was expectant on his surviving his father, and the extentof the share which the Fiscal’s transfer purported to convey was notascertainable at the date of that instrument. If other childrenhad been bom to Lawrence Gomes the younger after the date ofthe Fiscal’s transfer, the share would have been less than one-fourth;if any of Lawrence Gomes’s four children had died after that datewithout direct issue, it would have been more than one-fourth. Theinterest of the first defendant, in my opinion, falls within thelanguage of section 218 (fe) of the Civil Procedure Code.
The intervenients-appellants rely on the judgment of Lawrie J.in Lushmgton v. Samarasinghe;1 but the facts in that case werewidely different. It was a case of a deed of gift, not of a will, whichit was held created no fidei commissum. The ratio decidendi, asappears from the judgment of Lawrie J., as well as from that of
1 (1897) 2 V. L. B. 295.
( 469 )
Withers J., was that the true effect of the deed was to give the•donees a present right or immediate interest in the property; andthat there was nothing expectant or contingent about the gift. Thisdecision has plainly no application to an interest such as that whichpurported to pass by the Fiscal's sale of the first defendant’s interest.
I am of opinion that the interest of the first defendant was notcapable of seizure and sale, and that the intervenients-appellants,whose title depends on the validity of the Fiscal's transfer, are notentitled to that share.
With regard to the other one-fourth share, the intervenients' caseis that the conveyance to Carimjee Jafferjee, though made by Carolinein the lifetime of her father, became perfect on the death of herfather, and that on that event Carimjee Jafferjee obtained a goodtitle, which he has transmitted to the intervenients-appellants.
The fifth defendant-respondent's case is that, inasmuch as thedominium was not vested in Caroline at the date of the conveyanceto Carimjee Jafferjee, that instrument passed no title to CarimjeeJafferjee, and that, in the absence of a further notarial conveyancefrom Caroline, the death of Lawrence Gomes the younger in no waycured the defect in Carimjee Jafierjee's title.
The intervenients-appellants rely on the exceptio rei venditce ettraditce (Voet 21, 3, 2). But apart from the question whether tinsplea is available in view of Ordinance No. 7 of 1840, it is difficult tosee how it is properly applicable in the present case. Under theBoman-Dutch law a purchaser in possession, if he were evicted byhis vendor, had the right either to submit to eviction and sue hisvendor for damages, or he might meet the claim to evict him by theexceptio rei venditm et traditce. But here there is no question ofevicting a purchaser in possession. It is the intervenients who arethemselves setting up the claim, and they have never been inpossession. It is thus clear that the intervenients-appellants arenot entitled to the benefit of this particular plea. But there is a widerquestion involved, namely, whether the intervenients-appellants areentitled to set up any sort of equitable title on the ground thatCaroline, before she sold the land to the respondent’s predecessor intitle, had already sold it to Carimjee Jafferjee, from whom theintervenients-appellants’ title is derived.
It may be admitted that if Caroline Elizabeth, after her title hadbeen perfected by-her grandfather's death, had herself attempted toset up title against Carimjee Jafferjee or his successors in title shewould have been precluded from so doing. But does a similarequity arise as against- the defendants? A question almost identicalto this was discussed and decided in Guruhami v. Subaseris,.} whichwas decided on the principle that the provisions of Ordinance No. 7of 1840 are not to be used to cover fraud or what is tantamountto fraud..
1 (1910) IS N.L. B. 112.
( 470 )
In order for the intervenients-appellants to succeed, they mustshow that the fifth defendant-respondent stands on the same footingas regards the intervenients-appellants as Caroline herself.
In Ouruhami v. Subaseris1 the estoppel was limited to the'trans-action between the appellant and the third defendant-respondent,and it was held that the latter had an equitable claini to have thetitle conferred on her by the appellant herself upheld. If Carolineherself had set up title against any of the purchasers in the first lineof sale, her conduct would no doubt have been dishonest andfraudulent, and she would not have been allowed to take advantageof her own dishonesty; but it is clearly otherwise with the purchasersfrom Caroline in the second line of sale, under which the fifth defend-ant derives title. The mere fact that the sale to Carimjee Jafferjeewas registered is obviously insufficient to raise any equity against thefifth defendant. If the fifth defendant, when he purchased, failedto search the register, or bought the share notwithstanding theregistration, he accepted a serious risk, but I fail to see that he isin the same position as a vendor who sells when he has no titleto give, and subsequently, when he has obtained title, repudiates thesale and sets up his newly acquired title against his purchaser. Theelement of fraud involved in the latter transaction is wanting in thepurchase by the fifth defendant.
The intervenients-appellants also rely on the passage in Voet21, 3, 1, which lays down the proposition that where the right of analienator (wich was defective at the time of the alienation) isconfirmed, the right of the alienee is confirmed as soon as the defectin the vendor’s title is confirmed.
The applicability of this principle tfas considered in Don Carolis v.James.2 In that case the Commissioner of Requests held that whenthe vendor got a’full title to the land (which he had not at the timeof the sale) his rights enured to the defendant. But Hutchinson C.J.reversed the decision, holding that the transfer of land must, sincethe passing of Ordinance No. 7 of 1840, be made in the mannerprescribed by section 2 of the Ordinance, and all that the plaintiffobtained by his deed was a right to have a transfer from his Vendoras soon as the latter had obtained his title from the Crown.
This decision is fatal to the intervenients-appellants’ contentionon this point. In my opinion the appeal fails, and must be dismissedwith costs.
De Sampayo A.J.—
I agree with the judgment of my Lord the Chief Justice. Mr.Samarawickreme, who ably argued the case for the appellants, cited 'Voet 21, 3, 1, to the effect that where a vendor had no title at thetime of sale, but afterwards acquires title, the purchaser’^ title isconfirmed from the time that the vendor so acquires title, and the
2 (1909) 1-Cur. L. R. 224.
1 (1910) 13 N. L. R. 112.
( 471 )
purchaser can by right of ownership sue even third parties in posses- IMS.
sioD, and he thereupon argued that this mode of acquisition by oper-sakfayo
ation of law was not affected by Ordinance No. 7 of 1840, whichA.J.
only governed the conventional mode of acquiring title to land. In Mohammed
illustration of this he instanced the case of a person who purchases Shout*.
property in the name of another person, and in whose favour a Maricar
resulting trust arises.notwithstanding the provisions of the Ordinance
No. 7 of 1840. The illustration is unhappy, because in such a case
the law gives to the first person not a direct title to the property,
but only a right of action founded on fraud .to compel the trustee to
transfer the property to him, and gives no right of action at all against
a bona fide purchaser from the trustee. The.case of husband and
wife married in community of property is more apposite. But
matrimonial rights of this kind are sni generis, and in no way bring
about the frauds which the Ordinance No. 7 of 1840 struck at, and
have always been recognized by Courts of law without any reference
to the provisions of that Ordinance. However, it is not very clear
that under the Roman-Dutch law title really passes to a vendee
in the circumstances supposed. The passage from Voet above
referred to is from his title on the subject of the equitable plea
exceptio rei vendita ei traditee, and Voet appears to speak of
u fictitious rather than a true ownership passing to the vendee, who
would thus have a sufficient right to claim possession against the
vendor himself or against a third party in possession by means, not
of the vindicatory action, but of the actio publiciana, which is given
to a person who is owner only by legal fiction. The matter is made
more clear in 1 Nathan 379. So far as I can see, Voet nowhere
discusses the question as to the respective rights of a first purchaser
who purchases before the vendor acquires title, and of a second
purchaser who purchases after that event. I think, on the whole,
that the Ordinance No. 7 of 1840 must have full operation, as was
decided in Don Garolis v. James,1 which, again is in harmony with
the decision of the Full Court in Kadirawelpulle v. Pina,2 which
held that without a further deed, from the vendor after he acquired'
title the purchaser had no right.
It was next argued that the exceptio rei venditce et traditee, whichis available to the first purchaser against the vendor (Ouruhami v.
Subaseris3), was also available against the second purchaser, inas-much as estoppels bound parties and privies. A similar argumentwas attempted to be maintained in the case of a mortgage and asale, but was repelled in Alwis v. Fernando.* I think this decisionapplies to the present case. For the purpose of the contest betweenthe appellants and the respondents, it will not help the appellantsto say that the respondents are privies in estate to Caroline Gomes,from whom both parties claim a one-fourth share. It must be
1(1909) 1 Cur. L. R. 224.
2(1889) 9 S. C. C. 36.
(1910) 13 N. L. R. 112.* (1911) 14 N. L. R, 90.
( 472 )
borne in mind that an estoppel creates no title, but only preventsthe party bound by- it from saying that he had no title. In sucha case as this the vendor himself is debarred from asserting hissubsequently acquired title against his vendee, but if the propertyhas also been transferred by him to a third party, the vendee cannotset up title against such third party, and his only remedy is damagesagainst the vendor. See the judgment of Brett L.J. in Simm v.Anglo-American Telegraph Co. 1 and Cababe on Estoppel 116 and 117.
In my opinion the respondents have better title to the one-fourthshare claimed through Caroline Gomes. As i-egards the one-fourthshare which originally belonged to the first defendant-, and was soldagainst him in execution, I think the respondents are in a muchstronger position, as pointed out by the Chief Justice, in whosejudgment I entirely concur. I agree that this appeal should be-dismissed with costs.y
MOHAMMED BHOY et al. v. LEBBE MARICAR et al