113-NLR-NLR-V-54-AHAMADULEVVE-KADDUBAWA-et-al-Appellant-and-N.-SANMUGAM-Respondent.pdf
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Ahamadulevve Kaddubawa v. Santnugam
1953Present: Gratiaen J. and Gunasekara J.AHAMADULEWE KADDUBAWA et al., Appellants, andN. SANMUGAM, RespondentS. O. 400—D. C. Batticaloa, 285jL
Actio rJi vindicatio—Plaintiff must show title at date of action—Irrigation Ordinance,No. 32 of 1946—Section 88 (J)—Effect of words “ as though such sale hadnever been made
In a rei vindicatio action the plaintiff must possess at the date of the actionthe title which he asks the Court to declare to be his. The provision, therefore,of section 88 (1) of the Irrigation Ordinance that a land which has been soldfor non-payment of rates shall, upon the payment of the amount due from thedefaulter, revest in the defaulter or his heir “ as though such sale had neverbeen made ” will not avail the defaulter or big successor in title if, at the timehe institutes an action against a third party for declaration of title to the land,the title is still vested in the Crown, although during the pendency of theaction he obtains a cancellation of the Crown’s title in his favour in terms ofsection 88 (1) of the Irrigation Ordinance.
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ORATIAEN J•—Ahamadulevve, Kaddubawa v. Sanmugam
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J^^-PPEAL from a judgment of the District Court, Batticaloa.
C. Benganafhan, for the defendants appellants.
i£/. Nadesan, with S. Sharvananda, for the plaintiffs respondents.
Cur. adv. wit.
February 11, 1953. Gbatiaen J.—
The plaintiff instituted this action on 3rd July, 1946, for a declarationthat he was the owner of an undivided half share in the propertydescribed in the schedule to the plaint.
A predecessor in title of the plaintiff had defaulted in the payment ofcertain rates due in respect of the property under the Irrigation Ordinance(Cap. 312). The property was in due course put up for sale and pur-chased on behalf of the Crown by the Government Agent ; and, byvirtue of two certificates of sale dated 26th May, 1930, and 26th September,1931, which were issued under section 66 of the Ordinance, the propertybecame vested in the Crown “ free from all encumbrances whatsoever,any law or custom to the contrary notwithstanding ”. It is commonground that the property continued to be vested in the Crown at thetime when the present action commenced. This circumstance was, in myopinion, fatal to the plaintiff’s claim. There is no substance in the conten-tion that he was nevertheless entitled to succeed because on 24th Novem-ber, 1950—i.e., more than 4 years after the proceedings were instituted—he had obtained, as an “ heir ” of the original defaulter, a cancellationby the Government Agent of the certificates of sale in favour of theCrown in terms of section 88 (1) of the Irrigation Ordinance, No. 32 of1946. This section provides that, upon the registration of an endorse-ment by the Government Agent cancelling a certificate of sale in favourof the Crown, the land “ shall revest in the defaulter or, as the casemay be, vest in his heir as though such sale had never been made ”. Ishall assume for the purposes of this appeal (although I do not decide)that the section applies to a property purchased on behalf of the Crownunder the provisions of the earlier Ordinance (Cap. 312) which hassince been repealed.
I cannot agree that the effect of the words “ as though such sale hadnever been made ” is to vest the property in the defaulter (or his heir)with retrospective effect. As I read section 88 (1), the words relied on bythe plaintiff merely indicate that, upon due registration of the necessaryendorsement, title to the property which had previously vested^ in theCrown “ free from all encumbrances ” is transferred by operation oflaw to the defaulter (or his heir) without the necessity for any formalconveyance or assignment in his favour by the Crown. The languageof the section also indicates that, whereas the Crown may haveobtained a statutory title which was unassailable, the defaulter (orhis heir) in whom the property subsequently “ revests ” (or “ vests ”,as the case may be) would not enjoy a title of greater validity than thatwhich the defaulter had originally enjoyed. In other words, the quality
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of unassailability attaching to the title of the Crown is not transmittedto the defaulter or his heir, because the purchase by the Crown “ freefrom all encumbrances ” is deemed to have “ never been made
In the view which I have taken, the plaintiff’s claim fails because hehad no title to the property at the time when the action commenced,and the subsequent title which is alleged to have come into existenceafter that date cannot avail him in these proceedings. It is a long-established rule of law that “ when a plaintiff comes into Court prayingfor a declaration of title, he must possess at that time the title which heasks the Court to declare to be his ”—'per Lawrie A.C.J. in Silva v.Hendrick Appu 1. I would therefore allow the appeal and dismiss theplaintiff’s action with costs both here and in the Court below.
Gunasekaea J.—I agree.
(1895) 1 N. L. R. 13.
Appeal allowed.