Edwin and Another v. Sugathadasa De Silva (Ranasinghe, C.J.)
EDWIN AND ANOTHER
SUGATHADASA DE SILVA
TAMBIAH, J. AND .
S. C. APPEAL NO. 43/86.'
A. APPEAL NO. 416/79.
C. MATARA NO. 8086/P. •
JUNE 13. 1989.
Partition — Fideicommissum — Abolition of Fidei-Commissa and Entails Act No.20 of 1972.— Sale in execution — Fiscal's Deed .of Conveyance and relationback of deed to date of .sale — 289 CPC — Meaning of "deemed". '■ ■
The six original owners in 1 938 gifted an undivided 27A 20P to AW subject toa fideicommissum in favour of his children. A A/'transferred the corpus to Dwhose .interests however were sold in execution on 5.'5..1 962. At the.sale A Wbought the interests. The sale was confirmed by Court on 22.1 T.1973.and theFiscal's Deed of Conveyance .was executed on 29.11.1973. The plaintiff and 1to 1 4 defendants as heirs of A W claimed that their fiduciary interests becameenlarged to absolute ownership on the passage of, the Abolition of•Fideicommissa and Entails Act No. 20 of 1972 and instituted a partition suitafter the execution of the Fiscal's .Conveyance. The 15th defendant claimed 15Acres out of the corpus on the basis of a deed of transfenof j. 10.1974 from D.
The moment a Fiscal s Conveyance is executed in pursuance of a Fiscal's
sale, the grantee therein.is. under and by virtue of the provisions of section 289of the Civil Procedure Code, deemed to have been vested with the legal estatefrom the time of the sale.:,’ " . /■
At. the time of institution of action the title had been already perfected .by the
execution of the Fiscal's Transfer which, relates back to the .date of the saleagainst D and therefore A W became the absolute owner on the passing, of theAbolition of Fideicommissa and Entails Act'No. 20 of 1 972. D'therefore Had no.title'to pass to-the 1 5th defendant.•
’ Per Ranasinghe C. ,J..— ….'The, term "deem" is a concept very-familiar in'
modern legislation. What- is intended to beachieved, by the use of this term is to treat as afact something that has not been established as afact or even shown not to be a fact". .
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Cases referred to:
Marimuttu vs Commissioner for Registration of Indian and PakistanResidents 57 NLR 307. 309.
St.Aubyn v. A. C. [ 1 951) 2 All ER 498.
Abubakker v. Kalu Etana 9 S.C.C. 327;
Silva v. Hendrick Appu 1 NLR 13.
Silva v. Nona Hamine 10 NLR 44.
Ponnammah v. Weerasuriya 11 NLR 21.77. Selohamy v. Raphiel 1892 1 SCR 73.
APPEAL from Judgment of the Court of Appeal.
H. L. de'Silva PC. with Anil Silva for Plaintiffs-Respondent-Appellant.
PA D. Samarasekera P.C. with Chandra Amerasinghe and Weerasinghe de Silvafor 1 5th Defendant^Respondent.
Cur. adv. vult
July 19. 1989-
The plaintiffs-appel lants instituted these proceedings inNovember 1976. to have the land called Kindediyahara aliasDanketimulle, 28A. 1 R. 20P in extent, and more fully describedin'the schedule to the plaint, partitioned. The title pleaded by thesaid appellants is: "that the six original-owners of.the said corpus■by their deed P1. dated 20th June 1938, gifted an undividedextent of 27A. 20 P to Ariyadasa Wimalaguneratne subject to afidei-commissum in favour of his children: that, by deed P7 of12th June 1954, the said Ariyadasa Wimalaguneratne.Transferredc the said extent of 27A, 20P to Dionis: that theinterests which Dionis obtained upon-P7 were sold in executionagainst him, under and by virtue of the decree in D.C. Mataracase No.,861. and purchased at the Fiscal’s sale, held on the 5thMay 1962, by the aforesaid Ariyadasa Wimalaguneratne: thatthe said sale was confirmed by Court on 22.11.1973: that theFiscal's .Conveyance, P8 was executed in favour of the saidAriyadasa Wimalaguneratne on the 29th November 1973: that the
Edwin and Another y. Sugathadasa De Silva (Ranasinghe. C.J.j•339
interests-so purchased, by Ariyadasa Wimalaguneratne; devolvedon the . plaintiffs-appellants and the 1st-14th defendant-respondents: that, by virtue of the provisions of section 7 pf theAbolition of Fidei Commissa and Entails Act Nor 20 of 1 972. thefiduciary interests of the said Ariyadasa Wimalaguneratnebecame enlarged into absolute interests: that, therefore, theplaintiffs-appellants-and the 1 st-l-4th defendants-respondentsare entitled to the corpus sought to be partitioned, free of theconditions set out in P1.
The contesting 1 5th defendant-respondent claims ah extent1 of1 5 acres on the-basis that Dionis. referred'to earlier, conveyed tohim an extent of 15 acres upon deed 1501 of 1st . October1974. The -contention- put'forward on behalf of the 15th'defendant-respondent is: that, though the fiduciary interests ofDionis were sold on the 15th May 1962. the Fiscal's ConveyanceP'8.- in favour of the purchaser, Ariyadasa Wimalaguneratne.'wasexecuted only on 29fh • November 1973: that- prior to theexecution of .the said Fiscal’s Conveyance. P8. the provisions ofAct No. 20 of 1-972, cSme into .operation on the 12th. May1972: that .on the said date. 1 2.5. T972’.. the person who wasentitled to the fiduciary interests in the'corpus was still Dionis:that, the moment the.provisions of Act No. 20– of T972'; came.’into operation. Dionis’s: fiduciary interests became, enlarged "intoabsolute interests: that, therefore, 13D 1 operated, in law. .toconvey absolute-title in,respect pf. the said extent of 1 5 acres tothe 13th defendant-respondent; that the said AriyadasaWimalaguneratne. at best becarpe .entitled only to such^interestsas were,sold in execution'as against Dionis,. namely the fiduciaryinterest -created by P.1:""• ''
. The submissions put forward, on behalf ;of the plaintiffs-
appellants and the .1 st-1.4th defendants-respondents/are thatthe moment the. Fiscal's .Conveyance (P8.) was executed on 29thNovember 1973. by virtue of the operation of section 289 of theCivil .Procedure-.Code, the title'so .conveyed,.related back to thedate ofth'e sale; that the-purchaser, Ariyadasa Wimalaguneratne;is deemed to have been vested with the legal title to the'property -so. sold, as ,-from 5.5.1962: that, therefore,‘.on. the 1.2th May1972. the person who.,. (in law., held .the fiduciary interest.
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contemplated by. section 7(1) of Act No. 20 of 1972, wasAriyadasa Wimalaguneratne: that Ariyadasa Wimalaguneratnethus became entitled to an absolute interest in the corpus asfrom the 1 2th May 1 972.
' The question that arises for consideration is: whether thebenefit of the provisions of Section 7(.1) of Act No. 20 of 1972.which came into'operation on 12.5.1972. enured to AriyadasaWimalaguneratne upon his obtaining the Fiscal's Conveyance.P8, on 22.1 1.1 973 on the basis that, under and by virtue of theprovisions of section 289 Civil Procedure Code (Cap. 101) thesaid Ariyadasa Wimalaguneratne has to be "deemed" to havebeen vested with legal title in respect of the interests, which weresold to Dionis upon P7 and which were subsequently seized andsold as against Dionis and purchased- by AriyadasaWimalaguneratne on 5.5.1962. as from the date of the said saleon 5.5.1962, or whether it is Dionis. who could, in law. claimsuch benefit, as the title to the interests so sold as against him on5.5.1962, continued, in terms of the self-same section 289, tovest in him even on 1 2.5.1 9'7'2, the date on which the provisionsof the said Act No. 20 of 1972, came into operation? In otherwords, which of them could, on the date of the institution ofthese proceedings, claim to have been, in law; vested with thefiduciary interest, created by the deed of gift, P1 of 1.938. as on.12.5.1972?
The moment a Fiscal's conveyance is executed in pursuance ofa'Fiscal's sale, the grantee therein is, under and by virtue of theprovisions of section 289 Civil Procedure Code, "deemed" tohave been vested with the legal estate from the time of the s^le.Thus, upon the execution of such conveyance, the title soconveyed to the grantee immediately relates back to the date ofthe sale and the conveyance operates to vest in such grantee thelegal' title to the interests so conveyed as from the date of thesaid sale. Ordinarily the title to interests dealt with by a deedwpuld .pass over to the grantee only at the time and date of theexecution of such deed. The provisions of the said sectio.n 289..however, operate to vest the grantee with such title from a dateanterior to the actual execution of such document. This processof ante-dating is effected by deeming that that which did not takeplace did. in truth and in fact, take place.
Edwin and Another v. Sugathadasa De Silva (Ranasinghe. C.J.)341
The term "deem" is a concept very familiar in modernlegislation. What is intended to be achieved by the use of thisterm is to treat as a fact something that has not been establishedas a fact or even shown not to be a fact. It-is not an impossibleconception to deem that a thing happened even though it isknown positively that it did not happen — Marimuttu vs.Commissioner for Registration of Indian and PakistaniResidents Where a person is deemed to be something,.whatit means is that though he is not in reality that something he isrequired to be treated as ■ if he were that something: where aperson or thing is to be deemed to be or to. be treated' as.something which in reality it is not it shall have to be treated as-so during the entire course of the-proceedings — ’ Bihdra:Interpretation of Statutes (6th Ed) p. 91 2 -1 4, Sometimes theterm is-used to .give a comprehensive description that includeswhat is obvious what is uncertain and what is. in the ordinarysense, impossible — St. Aubyn ys. A. G.. (2).
The provisions of section 289 Civil Procedure Code, came upfor consideration in the case of Abubakker vs. Kalu Etana. (3). Inthat case the 1st Defendant's interests in the property in disputehad been seized and sold in June 1 884 and had been purchasedby T who obtained the Fiscal's Conveyance only o.n the 1.2thDecember 1 888. T. however, had transferred the interest he hadpurchased at the said sale to the plaintiff on the 6th November1888. The plaintiff instituted proceedings as against thedefendants in January 1889. The Supreme Court held that the'moment the Fiscal's Conveyance was executed'Ts title, to . theinterests sold by-him to'the plaintiff is deemed by virtue of the..provisions of section 289 of the Civil Procedure Code, to havevested in him as from June 1884,-the date'of the execution ofthe sale: and that, therefore. T is deemed to have had.paper titleto those interests at the time he executed the transfer to theplaintiff on the 6th November 1888: that the plaintiff thus hadtitle to the property at the time the action was instituted inJanuary 1889. What is-important to note, is that the Fiscal’sConveyance,- the execution of ‘which was necessary for thegrantee to be treated .as'having, been vested with title from thedate of the sale, was in fact executed before the proceedingswere initiated.
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Learned President's Counsel, appearing for the 15thdefendant-appellant contended that, when the question to bedetermined is in whom the title to property is vested on anyparticular date, the doctrine of "Relation back'.', as spelt out in theprovisions of section 289 of the Civil Procedure Code, cannot beavailed of. In support of this contention learned President'sCounsel relied on the.cases of: Silva vs. Hendrick Anpu. (4) Silvavs. Nona Hamine. (5) Ponnammah vs. Weerasuriya,
In Silva v. Hendrick (supra) the earliest of these three cases,the interests of the original owner of the property were seizedby the execution-creditor, Haramanis. and were sold by theFiscal on the 7th of June 1 893. Haramanis thereafter assignedhis interests in the 32 trees standing on the land on the 8thJune-1 893 to the plaintiff. The execution sale in respect of thesoil was on the 1 1th July 1893. The seizure of the 32 treeswas on the 1 3th September 1 893. Nine days later a claim wasmade: and it was dismissed by the Court. Within 14 days ofsuch dismissal, the plaintiff brought a. 247 action. He,however, obtained the Fiscal's conveyance after the institutionof the proceedings, but before the trial and moved to produceit at the trial. Two of the three judges held against the plaintiffand dismissed the action bn the basis that the plaintiff had notitle at the time of the institution of the proceedings. Browne
J., however, dissented, and observed that there is no reasonwhy a plaintiff may not, before having his title perfected, that iswhen he has- not a title at all, but only an imperfect titlecapable of being easily perfected, institute an action toenforce his rights under that title against the disputant.Withers, J., who took the view that; "No doubt the grantee ofthe conveyance is vested with the legal estate from the time ofthe sale, but not for the purpose of saving .a plaintiff whomakes a claim before la Fiscal and institutes an action toestabiish that claim.without that which gives him a good causeof action." also went on. to say:- "I would co-operate withBrowne J, (i.e. allowing the subsequently accepted Fiscal'sconveyance tp.be produced.at the.trial) if l thought the law ofprocedure admitted it. But I know of no provision which allowsa plaintiff who has no title (i.e. legal estate) when'he institutesa suit, and who gains one in the course o.f a course to makeuse of that acquisition in support of his claim, whichis–dependent on the particular title acquired "
SC Edwin and Another v. Sugathadasa De Silva (Ranasinghe. C.J.)'343
Lawrie, J., merely took the view that,, as the plaintiff- had not, atthe time he came into Court, the title, which he asks th.e court todecree to him, the plaintiff's action must be dismissed. ,.
The judgment in the case of Silva vs. Nona Hamine. wasdelivered on 1-9.1 1.1906 by a Full.Bench of the then SupremeCourt. The interests of the original owners in thesubject matterin dispute in that case were, seized and sold in the 'year 1.886.Weerasinge, the purchaser of the said interests transferred themin 1889 to Weerak.oon who mortgaged those interests in 1896to the plaintiff. The plaintiff put the bond in suit,, obtained adecree and the said interests were seized ^nH1906,. Thedefendants, who were the heirs of one of the original owners,claimed the said property. The said claim having been uphejd on19.7.1905, the plaintiff instituted a 247 action-, against thedefendants on 1.8.1905.., The sale to Weprasinghe' wasconfirmed in January ,1906 and' a Fiscal's .conveyance wasissued on 23.1.1906. to Weerasinghe. the plaintiff produced thesaid Fiscal conveyance at the trial on i 2.4:1906. . •
• Chief Justice Hutchinson-, having expressed the view that aformal transfer was- necessary to pass the property went, on atpage 45.to state :
■’'''1' .t .• ’.
"It was there argued that on the-execution ,of the,Fiscal'stransfer the purchaser's,- title-related , back to, the date of .thepurchase. For some, purposes that may be, so. but. I doubtwhether it would affect’ the rights of third, parties ,whp mayhave intervened in consequence of the purchaser's delay inperfecting his title and in any; case it cannot, affect, thequestion in this .case, which is. whether Weerakoon’ had agood'' title at: the date of the seizure. Perhaps, if thepurchaser had done all that he had. to do in; order tocomplete his title, and the’delay in obtaining the transferwas merely the fault of the Fiscal, the Court might hold that’,’that must.b’e taken to have been done, which ought-to have’been done., arid that the Ordinance should date from the"sale or.at least.from the date w.hen.the purchaser had doneall he-coul&tb obtain it. -But thaPis not so here?' ;
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Chief Justice Hutchinson concluded that the action must fail,because the plaintiff had no title at the time when the action wasbrought.
Wendt.. J.. who too concurred in the plaintiff's appeal beingdismissed, having observed that until the execution of theFiscal's conveyance the judgment-debtor remained vested withthe title, concluded, at page 49 :
"It is true that upon the execution of the conveyance thepurchaser, by the doctrine of relation back, became vestedwith the title as from the date of the seizure: but that doesnot help plaintiff in this case."
Middleton. J.. who had referred the case for furtherargument before a larger Bench, observed, at page 51. thatthough he himself had earlier "conceded" to the reasoningof Burnside. C. J.. in Abubakke'r's case (supra), yet havingheard the further argument in this case felt "bound to admit-that the principle cannot be held to apply in a case like this,where a competing title was paramount at the date whenthe'contestatio began."
In the last of the aforesaid three judgments Ponnammah vs.Weerasuriya (supra) the original owner had mortgaged theinterests in question on the 15th May 1880. The said interestswere seized and sold to the 2nd defendant in 1889. The salehad been confirmed on the 1 1 th April 1901. The 2nd defendanttransferred the said' interests to the plaintiff-respondent on27.1.1905. The Fiscal's conveyance in favour of the 2nddefendant was issued only on the 1 4th July 1 906. The plaintiff'saction against the 1st defendant-respondent, and the 2nddefendant-respondent, who are sons of the original owner, wasinstituted on the 5th July 1908.. nine days before the aforesaidFiscal's conveyance was issyed.
Wood Renton, j.,. in affirming the. District Judge's view on thenecessity of a F:iscal:s conveyance; stated at page 218:
Edwin and Another v. Sugathadasa Da Sih/a (Ranasinghe. C.J.)
"The cases of Abubakker vs.. Kalu.Etana '(supra) and. Se/ohamy i/s. Raphie!^^ in which it was held that aFiscal's conveyance of land- sold in execution hasrelation back to the date of the execution sale, and,■ therefore enures to the benefit of a party, to whom- theexecution purchaser hadconveyed before obtaining.theFiscal's conveyance.'are clearly 'distinguishable'.' Inthese cases • the Fiscal's conveyance rwas obtainedbefore action brought' Here it was obtained after that,date
Grenier. A.J., whom the Head-note of the report of the caseitself refers to as being "dCibitante". found‘no differen.ee inprinciple between the cases, which we're ci,tj3d at.the hearingand said to be distinguishable in that in those, cases theFiscal's conveyance had been obtained before the,action wasinstituted, and the case before,,him, -and also saw' nothing toprevent the plaintiff from producing the Fiscalfs conveyancein favour of the 2nd defendant and relying.upon it for his tide.Even so. .Grenier -found > bjrns,elf, unable, ,'to resist theweight of the Full Court judgment Silva vs, Hendrick Appu(supra).
A consideration of the facts and circumstances of the threecases, cited" by ••learned President's. Counsel Jor the ,T5thdefendant-respondent — Silva .i/S;/..Hendrick, Silva vs. NonaHamine; and Ponnammahvs. AJeerasuriya — makes it clear:that the judgments, of the Supreme Court in these cases didnot dissent from,-still Mess-overrule; the judgments. in theearlier, cases :of- Abubakker ys. Ka/u: Etana (supra} andSelohamy vs. Raphiel^'i that they did'only distinguish the-saidearlier line -of authority: that the common feature in all thesethree cases, and the most significant,' is' -that theFiscal■conveyance issued to the .purchaser at the sale was effectedbeforeMhe proceedings between the parties were initiated-inCourt: that it was this feature which-was highlighted byMiddleton J.. in Silva vs. Nona Hamine (supra) 'and by Wobd-Renton J.. and Grenier.-AvJ,'-in Ponnammah vs. Weerasuriya(supra).
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As already indicated, the Fiscal conveyance P8 is earlier inpoint of time to 1 5D1. and is also at least twelve months prior to .the institution of the proceedings in this case.
The resulting position, in law. then clearly is that, upon theexecution of the Fiscal, conveyance. P8. AriyadasaWimalaguneratne became, in the eye of the law. the person whowas vested with the fiduciary interest in the aforesaid property asfrom 5.5.1962. The said Ariyadasa'Wimalaguneratne was thusthe person who. in law. became entitled to claim the benefit ofthe provisions of section 7(1) of Act No. 20 of 1972. He is also,it must be noted, the person who would have, but for theconveyance P8. been the person entitled to avail himself of thebenefit of the proviso to the said'sub-section (1) of Section 7 ofthe said Act No. 20 of 1972.'
In this view of the matter ! am of opinion, that the deed 1 5D1does not operate to convey the interests set out therein, or anypart thereof, to the 1 5th defendant-respondent: that the plaintiff-appellant and the-1 st to the T4th defendants-respondents would,as the intestate heirs of the said Ariyadasa Wimalaguneratne.be entitled to all the interests which the'said AriyadasaWimalaguneratne was entitled to (inclusive of those referred to in.1 5D1) at the time of his death.
The appeal of the plaintiff-appellant is allowed. The judgmentof-the Court'of Appeal.-dated 5.5.1986. is set aside, and. thejudgment and the decree of the District Court are affirmed.
• The'1 1.5th- defendant-respondent to pay to the plaintiff-appellant the costs of both appeals, to the Court of Appeal and tothis. Court. -.
TAMBIAH, j„ — I agree
BANDARANAYAKE, J., — I .agree
EDWIN AND ANOTHER v. SUGATHADASA DE SILVA