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Present: Wood Benton J. and Grenier J.
SULTAN v. SIVANADIAN et al.
329—D. C. Jaffna, 7,610.
Partition—Certificate of sale under s. 8 of the Partition, Ordinance—Conclusive effeclSecret trust.
A certificate of sale granted under section 8 of the PartitionOrdinance does not possess such a conclusive effect a* to prevent aperson from claiming the property sold on the ground, of a secrettrust between himself and the purchaser.
fJlHE facts are fully set out in the judgment of Wood Renton J.
van Langenberg (with him A. St. T Jayewanlcne). for appellant.
Bawa (with him Balasingham), for respondent.
Cut. adv. vult.
December 5, 1911. Wood Renton J.—
The defendant-respondent obtained judgment against one Ayi-niappillai in D. C. Jaffna, 7,341. for the recovery of a sum ofmoney due on a mortgage bond, and the land described in the plaintwas. seized in execution as the property of his judgment-debtor. Theplaintiff-appellant claimed the property; the claim was dismissed;and the present action has been brought by the plaintiff-appellant,under section 247 of the Civil Procedure Code, to have the land seizedin execution declared his property and released from seizure. Noevidence has as yet been led, but the case for the plaintiff-appellantmay be shortly stated thus. He alleges that the original owners ofthe land were Pathumma Nachchia, Vavu Sultan Nachchia, his ownsister, and Mohammdu Ussan Mali Mohammadu Lebbai. Path-umma Nachchia owned a half, Vavu "Sultan Nachchia 88/96ths of ahalf, and Mohammadu Lebbai, who is an uncle of the plaintiff-appellant, the remainder. Pathumma Nachchia brought a partitionaction No. 5,009, D. C. Jaffna, and in that action her half share wassold. The appellant says that it was bought by him with his money,but in the name of his sister Vavu Sultan Nachchia. The certificateof sale, under section 8 of Ordinance No; 10 of 1863, was executed infavour of and in the name of Vavu Sultan Nachchia. The appellantalleges that under the circumstances of this case Vavu SultanNachchia held the share hi question on a secret trust in his favour.The 88/96ths share owned by Vavu Sultan Nachchia and anothertwo lands were under a mortgage to Ramen Chetty at the date ofthe partition action in D. C. Jaffna, 5,009, the mortgagors beingVavu Sultan Nachchia, the plaintiff, and one Meera Saibo Moham-madu Lebbe Marikar. The bond was put in suit, and judgment was
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obtained against the mortgagors. In order to pay off the judgmentdebt, the appellant borrowed from Ayiniappillai, who has been madean added party in the present action, a sum of Rs. 785, and withthat he satisfied the judgment. Ayiniappillai, as a security for thisloan, insisted upon a transfer in his favour of the three lands abovementioned, subject to a secret condition that the transfer was tooperate only as a usufructuary mortgage, and that on repayment ofthe loan he was to execute a retransfer of the lands to the appellant.The transfer was effected by deeds Nos. 974 and 975 of August 8,
The appellant was allowed to continue in possession of thelands, and in lieu of interest the rent was stipulated for by a notariallease for a term of one year as regards one land and by a verbal leasefor the other two lands. The notarial lease expired on August 23,
In December, 1908, Ayiniappillai became indebted to theappellant in the sum of Rs. 1,250, and on the expiration of thenotarial lease the property was released by an agreement betweenthe appellant and' Ayiniappillai from the encumbrance attachingto it in favour of the latter in view of the debt. The appellantalleges that from August 23, 1909, he has remained in possessionof the property as owner, independent of, Ayiniappillai, and he claimsa declaration of title thereto, and prays that the land be releasedfrom seizure. The defendant-respondent and' Ayiniappillai traverseall the material allegations in .the plaint.
When the case came on for trial a variety of issues was framed,but the learned District Judge has so far dealt only with issues(1), (2), (3), and (4).
Was the plaintiff the owner of the land in question when
the deed No. 974 was executed, or was Vavu SultanNachchia the owner ?
If he is not the owner, is he entitled to maintain this action ?
Can plaintiff rely on the agreement relied on in the 2nd
paragraph of the plaint to prove title, as the same is notnotarially executed?
Do the averments in the plaint disclose any title to the
lands in question in the plaintiff?
He answers these issues as follows: —
Issue (1).—Vavu Sultan Nachchia, and not the plaintiff, wasthe owner.
Issue (2).—The appellant cannot maintain this action, inasmuchas, even if he succeeded in establishing the secret trustsin his favour in connection with the sale to Vavu Sultan-Nachchia and the mortgage to Ayiniappillai, he could notestablish such a title in himself at the date of seizureas would form a good foundation for his claim, or foran action under section 247 of the Civil Procedure Codewhen that claim had been dismissed.
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Issue (3).—The appellant would be entitled to rety on the agree-ment referred to in paragraph 2 of his plaint, evenalthough it is .not notarially executed, if he' first provedthat the value of the land was in excess of the amountpaid for it by Ayiniappillai.
Issue (4).—The averments in the plaint do not disclose any title'to the lands in question in the appellant.
On these findings the learned District Judge dismissed the appel-lant’s action with costs. In my opinion he ought not to have doneso. If the appellant’s case as stated in his pleadings is well founded;if. as the learned District Judge has rightly held/ he is entitled toestablish the existence of the secret trusts by oral evidence; and ifhe should, in fact, succeed in doing so, he will have proved a sufficienttitle to the property at the date of claim to make the present actionmaintainable. The decree of the Court holding that such trustshave been established will not- create new rights which were not inexistence at the date of seizure. It will be declaratory of rights withwhich the appellant was invested at the respective dates of the issueof the certificate of sale to Yavu Sultan Nachchia and the transferto Ayiniappillai. I do not think that the conclusive effect given to adecree for partition or sale by “section 9 of Ordinance No. 10 of 1863can be extended to a certificate of sale granted under section 8.I do not thfnk that Sir Joseph Hutchinson C.J., in the case ofCatherine, Hamy v. Babahatn^y,1 when he said that the intention ofthe Partition Ordinance was to give an indefeasible title to thepurchaser to whom the land was sold when the sale was affirmed andcompleted by the certificate of the Court under section 8, intendedto say anything more than that the title of the purchaser wasindefeasible as regards the estate that passed to him under the decree.Mr. Bawa argued that, whatever might be the position of VavuSultan Nachchia, as regards Pathumma Nachehia’s half sharebought in her name under the decree for sale in the partition action,the plaintiff-appellant could establish no secret trust as to the88/96ths sharei of a half belonging to her in her own right. I do hotthink, however, that the Court is in a position to give an opinion onthis point until the evidence has been gone into. 1 would set asidethe decree of the District Court dismissing the plaintiff-appellant'aaction, and send the case back to the District Court, directing that,if within twenty-one days from the notification to the plaintiff-appellant by the District Court of the receipt*of the record there,the plaintiff-appellant shall institute against Vavu Sultan Nachchiaand Ayiniappillai the appropriate proceedings for the purpose ofobtaining a declaration of the secret tru$ts on which he relies, andfor the execution, if necessary, of conveyances of re-transfer of theland in dispute, the proceedings in the present action shall be stayed,pending the result of such independent action against Vavu Sultan
i (1907-8) 3 A. C. R. 33.
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Nachchia und. Ayiniappillai, and that thereafter the present actionshall proceed to trial and judgment in due course. If such inde-pendent action is instituted, the plaintiff-appellant shall be entitledto the costs of this appeal as against the defendant-respondent andthe added party respondent in any event. All other costs will becosts in the cause. If, however, such independent action as abovementioned is not taken within the period indicated, the appeal willstand dismissed with costs.
As the facts are fully stated in the judgment of my brother, I willnot repeat them. There are two points, however, on which I shouldwish to say a few words. I think that it was open to the appellantto prove the secret trust he relies on in support of, and as establishing,his title. If his statement be true that he has been in possession ofthe property in question since August, 1909, as owner, independentof Ayiniappillai, then it seems to me that his assertion of title is notgroundless. The appellant made his claim to the property when itwas seized in execution, and at that time he had a title which,although it was not a paper title but one founded upon secret trusts,was still capable of proof by oral evidence. He should not bedeprived of the opportunity of proving this title.
The case of C.atheriva Homy v. Babahamy1 was not, in my opinion,intended to go so far as to make a certificate of sale under section 8of the Partition Ordinance exclusively operative in favour of thepurchaser. The title conveyed by such a certificate is undoubtedlyindefeasible, but there is nothing to prevent a person from claimingthe property on the ground of a secret trust between himself andthe nominal purchaser. Such a claim, if successful, will m noway challenge or defeat the title. It will only have the effect ofsubstituting the real purchaser for the nominal one.
I agree to the order proposed.
i (1907-8) 3 A. C. R. 33.
SULTAN v. SIVANADIAN et al