Piyadasa v. Piyasena
Present: Manicavasagar, J., and Alles, J.A. T. PIYADASA, Appellant, and M. PIYASENA, RespondentS.C. 66711964—D. C. Oalle, 6704/LN
Donation—Fideicommissum created by will—Gift of spea successions by fideicom-
missary—Donee a minor—Sale by minor with permission of Court—Invalidity—
Equitable plea of exceptio rei venditae et traditae—Inapplicability to a gift.
Landlord and tenant—Evidence Ordinance, s. 116—Estoppel of tenant—Scope.
Where, in a fideicommissum created by lest will, the fideicommissarydonates his apes successionis during the life of the fiduciary, the gift cannot passany title or interest to the donee, because, at the best, the apes is an uncertainone which may not materialise. In such a case, if the donee is a minor andhis guardian, after obtaining permission from Court without disclosing thetrue facts, sells the fideicommissum property to a third party, the Court’ssanction is in effect no sanction at all. Nor can the vendee, after the deathof the fiduciary, rely on the equitable plea of exceptio rei venditae et traditae inordor to claim that the title acquired by the fideicommissary on the death ofthe fiduciary enured to the donee (the vendor) and passed to the vendee. Theplea of exceptio rei venditae et traditae has no application to a gift.
Where a landlord has no title to the premises let by him, section IIS ofthe Evidence Ordinance does not estop the tenant from disputing the title of aperson who claims to have succeeded to the landlord, unless the tenant hasalready acknowledged the successor in title as his landlord.
A.PPEAL from a judgment of the District Court, Galle.
E. St. N. D. Tillekeratne, for the defendant-appellant.
C. Ranganaihan, Q.C., with M. T. M. Simrdeen, for the plaintiff-
Cur. adv. vult.
MANICAVASAGAR, J.—Piyadaaa v. Piyasena333
February 7, 1067. Manicavasagab, J.—
This was an action for a declaration of title to the land described inthe schedule to the amended plaint of 17th December, 1963, ejectmentof the defendant-appellant, and damages for wrongful and unlawfuloccupation, till the plaintiff was placed in quiet possession of the land insuit.
The defendant denied that he was in wrongful occupation, and pleadedthat he was in lawful occupation as tenant of M. Seelawathie and AliceCecilia jointly, and disputed the plaintiff’s title.
The facts relevant to the decision of this appeal are as follows : Carolisde Silva was at one time the owner of the land : by his last will (P3) of18.12.49, which was admitted to probate in D.C. Galle 8501 (Testy.),he devised the premises in suit to his wife, Alice Cecilia, as fiduciary,and thereafter to his son Francis de Silva, as fideicommissary ; if Francisde Silva predeceased his mother, Alice Cecilia, the property was to vestin the children of Francis de Silva. Alice Cecilia died in March 1902,during the life of Francis, who was alive at the time of the trial in theDistrict Court. The latter, by deed 1746 (P6) of 1.3.55 donated thepremises in suit to his minor son, Gamini Bennet de Silva; the deed recitedthat the premises were held and possessed by him, under the. last will(P3) : the gift was accepted by the minor’s mother, Seelawathie : theminor did not have possession of the land. In January I960, Seelawathie,as curatrix of the estate of her minor son, having obtained sanction ofthe District Court, together with Alice Cecilia sold the promises to theplaintiff, by deed 3207 (P9) of 26.1.60. The plaintiff claims title to thepremises on the deed of sale, P9.
The main question that arises for determination in this appeal is whetherP9 passed any title to the plaintiff.
It was contended on behalf of the plaintiff that though Francis hadonly an expectation of succeeding to the property at the time he giftedto his son, which expectation, in turn was conveyed to the plaintiff,yet on the death of the fiduciary, the title acquired by Francis enuredto the minor, and passed to the plaintiff, who thereby became the fullowner of the property by the operation of the equitable doctrine of‘‘ exceptio rei venditae et traditae ”.
On behalf of the appellant two submissions were made ; firstly, thatthe equitable plea, relied on by the plaintiff, would not apply to adonation : in support of this submission, counsel relied on the decision ofKanapatkipillai v. Vethanayagam h Secondly, that the sanction of theCourt granted to the curatrix of the minor, was cf no effect, as it wasobtained by suppressing from the Court the material fact that Francis’sinterest was no more than a spes successionis, of a fidei commissum createdby last will: counsel relied on the decision in Cassaly v. Buhary2, in supportof this submission.
In regard to the first submission, Francis’s interest was the verymcertain hope of succeeding to the property as fideicommissary heir, for» (1963) 66 N. L. B. 49.* (1956) 58 N. L. R. 78.
MANICAVASAGAR, J.—Piyadasa v. Piyatena
the fidei commissum was created by last will, and if he died before thefiduciary, he transmitted nothing by P6 to Bennet, for the fiduciary, Alice,took free of the entail (Mohamed Bhai et al. v. Silva *) : as subsequentevents turned out, the fiduciary, Alice predeceased Francis ; but thismakes no difference : the question is whether on P6 any interest passedto Bennet. A gift is said to be made when anyone grants property andat the same time delivers it with the intention that it should immediatelybecome the property of the person receiving it … . (Perezius onDonations …. Wikramanayake’s translation. Title LIV, Section 1). Atthe best, the spes which Francis gifted was an uncertain one, and whichmay not have materialised. The case cited by counsel for the appellantis authority for the view that the equitable plea of exceptio rei venditae ettraditae has no application to a gift. I am in respectful agreementwith the reasoning of Basnayake C.J., and uphold the appellant’s firstsubmission.
In regard to the second submission, the application of the curatrix forsanction was made on the basis that the minor was entitled to theproperty, which in fact he was not: there was a suppression of relevantfacts relating to the interest of Francis. A solemn duty rests on a peti-tioner who seeks the sanction of the Court to deal with a minor’s property,to disclose the true facts so that the Court may decide in its capacity asupper guardian of the ward, whether the minor had a saleable interest,and whether the sale was to the advantage of the minor. The Court’ssanction was in this instance improperly obtained, and in effect was nosanction at all.
Counsel for the plaintiff-respondent however submitted that theappellant being only a tenant of the premises, cannot be heard to disputethe plaintiff’s title, the onus of proving title is on the plaintiff, and hehad not discharged that burden.
The appellant entered into occupation as tenant of Seelawathie andAlice : Alice died in March 1962, whilst Seelawathie was alive at the timeof the trial : Alice was fiduciary at the time of the letting, whilst Seela-wathie as curatrix had no title. However, one may let property toanother without having any right or title to it, and such a letting is valid:the tenant who enters into occupation, is estopped during his tenancyfrom disputing his landlord’s title, except under certain circumstanceswith which we are not concerned in this case. It is therefore clear thatthe appellant could not in law dispute the title of Seelawathie. Theissue here is whether the appellant can successfully dispute the title ofone who claims to have succeeded by assignment to the minor’s interests.Under Section 116 of the Evidence Ordinance, the estoppel is only infavour of the person who placed the tenant in possession, and does notestop the tenant from disputing the title of one who claims to havesucceeded to the landlord : in such a case the estoppel will arise only ifthe tenant had acknowledged the successor in title as his landlord.
N. L. R. 193.
ALLES. J.—Fernando V. Vadivelu335
Since the defendant has successfully challenged the plaintiff’s titlehe is entitled to succeed, and consequently the appeal is allowed. Theplaintiff's action is dismissed with costs here, and in the Court below.
At.t.ks, J.—I agree.
A. T. PIYADASA, Appellant, and M. PIYASENA, Respondent