1954Present: Rose, C.J., and Sansoni, J.
.A. A. M. THASSIM, Appellant, and N. M. M. SULEIMAN,Respondent.•S'. C. 157—D. C. Matura, 46
Estoppel—Recital in a deed—RhjlU of a person to act on the- faith of that representation'—Evidence Ordinance- s. 115.
Where A holds B out os owner of A’s property and a third person C purchasesit for value from the apparent owner B in the belief that B is the real owner,neither A nor any person who subsequently purchases that property from A wilt■• be entitled to dispute C’s claim to be its owner.
jAlPPEAL from a judgment of the District Court, Matara.
G. V; Ranawake, for the plaintiff-appellant.
N. E. Weerasooria, Q.G., with E. A. G. de Silva, for the defendant-respondent.
Cur. adv. vult.
August 4, 1954. Sansoxi, J-
. In this partition action the only dispute concerns a house on the landsought to be partitioned and it arises in this way. Under a partitiondecree of 1947 three persons, Abdul Rahim, Abdul Hamid and Abubuckeruero declared entitled to the lot on which this house stood. They soldthat lot to one Thassim in 1948 and Tliassim in turn sold it to Salahudeenby deed P3 of 1.3.51. By deed D1 of 12.5.51 Salahudeen sold “Allthat undivided 2/3 parts or shares of the soil and fruit trees (exclusive ofthe buildings standing thereon belonging to the vendees hereto) ” toAbdul Rahim and Abdul Hamid already mentioned, and they by deedD2 of 14.5.51 sold “ all that undivided 2/3 part or shares of the soil andfruit trees together with the entirety of the nine cubits tiled housestanding thereon ” to the defendant. Eleven days later, by deed P4of 25.5.51 Salahudeen sold “all (liis) right title claim and interest toand upon the land ” to the plaintiff. The plaintiff claimed that Salahu-deen was still entitled to 1 /3 share of the house at the time deed P4 wasexecuted, and this 1 /3 share was accordingly claimed by the plaintiff whoconceded that the defendant was entitled to 2/3 share of the house. Thedefendant, however, claimed that the plaintiff was estopped, by therepresentation made by Salahudeen in Deed Dl, from claiming any shareof this house, and a point of contest was raised on this basis. A furtherpoint of contest suggested by the defendant’s counsel at the trial was“ Did any rights in the house pass on the deed Dl ? ”. Obviously norights in the house could have passed from Salahudeen and his twovendees on the deed, seeing that the 2/3 share was sold exclusive ofthe buildings.
The only question that arises, therefore, is whether the defendant hasmade out his claim that the plaintiff is estopped from claiming any shareof the house by reason of the representation made by Salahudeen in thedeed Dl. Now it must be borne in mind that the plea of estoppel is notraised by Abdul Rahim and Abdul Hamid. It might in that situation havebeen contended against them that they were aware that Salahudeen wasthe owner of the house ; they would also have had to prove that they werepersuaded to purchase by reason of the particular statement made in Dl
The position of the defendant is different. He gave evidence, which thelearned District Judge has accepted, in the course of which he said :—
“ The deed Dl in favour of the vendors showed that they were the soleowners of the house. That is why I purchased the house. ” In other.words, his case was that he bought the 2/3 share and the entire house ondeed D2, believing and acting on the statement made by Salahudeen as
regards the house. In this state of tilings it seems clear thatif Salahudeenhad claimed the 1 /3 share of the house now in dispute he would have beenestopped. “If, whatever a man’s real intention may be, he so conductshimself that a reasonable man would take the representation to be true andbelieve that it was meant that he should act upon it, and did act upon it astrue, the party making the representation would bo precluded from con-testing its truth ’’—per Parko B. in Freeman v. Cooke K That is the rulewhich has always obtained in England and it is the rule in our Law despitethe fact that Section 115 of the Evidence Act (Cap. 11) uses the words“ intentionally caused another person to believe a thing to be true ” whilethe English rule laid down in Pickard v. Sears 2 used the words “ wilfullycaused another to believe the existence of a certain state of things”.
Supposing again that Salahudeen, and not the plaintiff, was claimingthe 1/3 share of the house, would the circumstance that the representationmade by Salahudeen appears in a deed to which the defendant was not aparty make a difference ? I think not, seeing that the statement made inthe deed Dl was, in this case, the approximate cause of the defendantbuying on the deed D2, and the defendant is the representative of thepurchaser on deed Dl. I can best give the reason in the words of aprinciple which Layard, C.J. said, in Sadiris Appu v. Cornells Appu3, hadbeen enunciated by the Judicial Committee of the Privy Council :—
“ It is a principle of natural equity that where A allows B to hold himselfout as owner of A’s property ”—a fortiori where A holds B out as owner ofA’s property—“ and a third person purchases it for value from theapparent owner in the belief that he is the real owner, A shall not bepermitted to recover, unless he can prove that the purchaser had directnotice of the real title, or that there existed circumstances which oughtto have put him on inquiry which, if pursued, would have led to a dis-covery of it ”. An analogous case arose in Silva v. Thedris 4 where thissame principle was applied. There too the representation was made notdirectly to the person who pleaded the estoppel, but to his vendor.
A nd that brings me to the submission which was strongly pressed uponus by the plaintiff-appellant’s counsel. He urged that the defendantwas put on inquiry as to who in truth was tho owner of the house, but wewere not told what circumstances should have raised suspicion in thedefendant’s mind and put him on inquiry. He was entitled to rely on thestatement regarding the house in Dl. His vendors produced it as proofof their claim to the entire house. The case of Trinidad Asphalt Co, v.Coryat 5 cited by the appellant’s Counsel only decided that a recital in adeed creates no estoppel in favour of a stranger who does not claim under aparty to the deed. But the defendant is not a stranger in that sense. .His immediate source of title is the deed Dl which contains the repre-sentation-which misled him. Any reasonable man was entitled to act onthe faith of that representation in the absence of actual or constructivwnotice that the truth was otherwise.-■.
1 2 Exch. 654.'a (J905) 8 N. L. R. 350.
(1896) A. O. 587.
* 6 A. <L' E. 469.* [1920) 22 2V. L. R. 65.
.Upto this point I have dealt with the matter as though Salahudeen andnot .the plaintiff was disputing the defendant’s claim to be owner of theentire house. -1 have tried to show why Salahudeen would have beenestopped from raising . a. dispute. – The plaintiff who purchased fromSalahudeen after the defendant had purchased upon D2 can be in no betterposition than Salahudeen. Since the plaintiff claims through Salahudeenhe is equally bound. – •
"For these' reasons I would dismiss this appeal with costs.
Hose, C.J.—I agree.
A. A. M. THASSIM , Appellant, and N. M. M. SULEIMAN, Respondent
1954Present: Rose, C.J., and Sansoni, J.