AMMAL v.KANGANY

017-NLR-NLR-V-13-AMMAL-v.KANGANY.pdf


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[Ftol Bbnch]Feb' 16t mo
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justioe,
Mr. Justice Middleton, and Mr. Justice Wood Benton.
AMMAL t>. KANGANY
D. C., Kandy, 18,984.
Purchase of land—Conveyance to minor by the seller at the request ofhis father—Payment of price by father—Delivery of deed to father.Where afather by a notarialconveyancebuys aland in the
name of a minor child, the title to the land vests in the minor,though thefather pays his ownmoney forthe landand himself
accepts the delivery of the deed of conveyance.
Ranhamy e. Bastion Bedorala1 and Perera v. David Appu* over-ruled.
A
PPEAL from a judgment of the District Judge of Kandy. OnaMuttusami, who was the owner of the land in dispute, sold
and transferred the same by deed No. 5,479 dated March 23, 1889,to one Pitohe,who was at that time a minor. Pitche,on Septem-ber 10, 1907,sold and transferredthe land to plaintiff. Plaintiff
brought this action for declaration of title against the defendant,who he alleged was in wrongful possession. The defendant claimedto be entitled to possession of the land under a deed of lease datedMarch 15, 1890, from Pitche’s father Arumugam, to whom deedNo. 5,479 (of 1889) in favour of Pitche was delivered, and who hadpaid his own money for the land' to Muttusami. The defendantcontended that under the circumstances the title to the land vestedin Arumugam. The District Judge held that title vested in Pitcheby deed No. 5,479, and. entered judgment for plaintiff.
The defendant appealed.
The case was referred to a Full Bench.
H. A. Jayewardene, for the appellant.—The father who paid hisown money for the land had no mandate from his minor child tonominate him as purchaser; the title to the land vests in the father(Poet 18, 1, 8; Ranhamy v. Bastian Vedarala;1 Perera v. DavidAppu2). This deed could not be looked upon as a deed of donationby the father to the child. There was no acceptance. Counsel also
1 (1897) 2 N. L. R. 360,* (1903) 6 N. L. R. 236.
3-—J. N. A 89163 (5/49)
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ptb. 16,1010 cited Mvrugeau v. Appuhamy,1 Affejudeen v. Periatamby,* FernandoAmmal v *• Canangara,* Avichi Ghetty v. Fonseka,* De Silva v. De Silva,iKangany Wijetunga v'. Misi Nona.*'
De Sampayo, K.C., lor the respondent, not called upon.
,Cur. adv. vvlt.
February 16, 1910. Hutchinson C.J.—
This case was referred to a Court of three Judges in view of certaindecisions “ with regard to the acceptance by a father of a gift madeby him to his son.”
The plaint states that by deed No. 5,479 of March 23, 1889, Muttu-sami, being the owner, sold and transferred certain land to Pitche,son of Arumugam; that Pitche in 1907 sold and transferred it tothe plaintiff, and that the defendant is wrongfully in possession;and the plaintiff claims for a declaration of his title and to recoverpossession. The defendant admits that Mutt-us&mi was the owner,and admits the execution of the deed No. 5,479, but says that itwas executed by Muttusami in the name of Pitche, a minor, at therequest of Pitche’s father, who paid the consideration for the transferand was put in possession, and that the deed was delivered to thefather, who became the owner of the land under the deed; and thedefendant claims to be in possession under a lease from Pitche’sfather, and to be entitled to compensation for his improvements.He also denies the execution of the conveyance to the plaintiffby Pitche.
The issues agreed on were: —
Did Pitche gain title to the land by deed No. 5,479 ?
Did Pitche by the deed of 1907 convey the land to the
plaintiff ?
Damages.
Is the defendant entitled to compensation ?
The District Judge, by the judgment now under appeal datedOctober 5, 1909, answered the first, second, and fourth issuesin the affirmative. The defendant appeals, and his ^counsel hascontended that the first issue ought to be answered in the negative,on the ground set op' in the defendant’s answer. He contends thatwhere a man buys land and pays the purchase money himself outof his own money, but the deed of transfer is, by his direction,executed in favour of his infant son, the father, obtains a good titleto the land by virtue of the deed, unless there are circumstancestc show that he intended to make agift of the land to hisson.
1 (1907) 3 Bed. 275.*(1905) 3 A. C. R. 4.
* (1909) 12 N. L. R. 313.5(1908) 3 A. C. R. 179.
3 (1897) 3 N. L. R. 6.•(1908) 2 Leader Law Reports 82.
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Reference was made in support of this contention to Voet (Ber-wick's translation) 18, 1, 8; and to Ranhamy v. Bastian Vedarala;xPer era v. David Appu;3 Affefudeen v. Periatamby;3 and Murugesuv. AppuhamyA
Where one man, A, buys and pays for land out of his own money,but procures the vendor to convey ib to another person, B, it is aquestion of fact, having regard to all the circumstances, whether heintended that B should be merely a trustee for him. If it appearsthat that was his intention, it may be that he may be able to enforcethe trust and compel B to account to him for the property andtransfer it to him. But that proposition is by no means the samething as the proposition that a transfer to B is a transfer to A- Ifany of the authorities quoted assert that a transfer to B may of itselfgive a good title to A, that is, that it may be treated as equivalentto a transfer to A, they are opposed to the enactment of the Ordi-nance for the Prevention of Frauds and Perjuries, the main objectof which was to prevent this very thing, and to require that atransfer of land by one man to another must be in writing, signedand attested in a particular manner. Here there is no such transferto the father. At the most the right which he acquired by thetransaction of 1889 was a right to compel his son to execute 'atransfer to him.
The question of acceptance of the transfer.on behalf of the son,who was a minor in 1889, does not seem to me to have any bearingon this case. If the transfer by Muttusami to Pitche required,acceptance by some one on Pitche’s behalf to make it effectual,it was so accepted by the natural and proper person for that purposenamely, Pitche’s father. I would dismiss the appeal with costs.
Middleton J.—
His Lordship set out the facts, and continued:-^
The District Judge found on issue (1) that Pitche gained titletothe land in dispute bydeed5,479;(2)that by deed .1,715 of 1907
heconveyed the land to theplaintiff;(3)that no damages occurred;
(4) that defendant is entitled to compensation for planting, and gavejudgment accordingly.
The defendant appealed, and the principal point raised and arguedbefore the Full Court was whether in view of the decisions in Ranhamyv. Bastian Vedarala,1 Perera v. David Appu,4 and Murugesu v.Appuhamy4 the-Court was justified in holding that the title to theland in dispute had vested in Pitche, and had been conveyed by himto the plaintiff.
111897) 2 N. L. R. 360.* {1909) 12 N. L. R. 313.
• {1903} 6 N. L. R. 236.* (1907) 3Bal. 275.
Feb. 16,1910
HtrroHnraoK
C.J.
Ammal v.Kangany
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Feb. 1$, 1910
MlDDLETOir
J.
Ammol v.
Kangany
At the argument the defendant's counsel also referred to Wijetungav. Misi Nona,1 but in that case the Court held that the proof wasnot sufficient to bring the case within the decision in Ranhamy v.Bastian Vedarala and Perera v. David Apput ubi supra.
The principle of those cases was that when A bought land in thename of B without B’s mandate or authority and accepted thetransfer, A must be deemed to be the purchaser (Voet IS, 1, 8,Berwick's translation 13). But Voet goes on to 6ay Quamvis insertumzcr.Jitionis instrumento nomen alienum non impediat, quo minusactionem habeab, qui se non alieno, sed suo nomine emisse probat.
Under the Dutch system it is said the sale of land had to beearned out in the presence of the Court, but under our OrdinanceNo. 7 of 1840, for the Prevention of Frauds and Perjuries, it isenacted by section 2 that no sale, purchase, transfer, Ac., of land
or other immovable propertyshall be of force or avail in
law unless executed before a notary and witnesses. The effect of .this enactment appears to me to be that ho person can claim to havetitle by sale or purchase in immovable property unless he has anotarial conveyance in his name. It seems to me that the effectof this section was overlooked by the Courts deciding the casesrelied on for the appellant.
The person in whom the property is vested by notarial conveyanceis, primd facie, the true owner, and must be considered so, subjectto the right of any person claiming to be the true owner to haveit declared by the Court that he is de jure the owner, and that theconveyance in the name of the former should be set aside. Untilthe Court decides this in the claimant's favour, he has no title bypurchase or sale in the absence of a notarial deed in his favour.
In the present case the land was conveyed to Pitche though aminor, but the purchase money is said in the deed to have beeDpaid to Muttusami by Arumugam's son Pitche.
In my opinion the title at the present moment is vested in theplaintiff, who apparently bought from Pitche after he came of age,for valuable consideration. When the defendant hired the landfrom Arumugam and his wife, they had no legal title vested in themenabling them to execute the lease, and in my opinion it is void.
It is true that the defendant's deed of lease from Arumugamand his wife recites that they bought the land in the name of theirminor child Pitche with their own money, but they must have putor caused to be put the legal title in Pitche, and he was not deprivedof it before he sold to the plaintiff. Even if there were a claim inthis action in reconvention to set aside the deed in the name of theplaintiff, the defendant is not the person entitled to make it.
We then come to the question of compensation. The defendanthere is a lessee from persons who are not the legal owners, butthe plaintiff will get the benefit of any improvements the defendant1 (.7005) 2 Leader Law Reports 82.
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may have made while acting as lessee, and on the well-known -Pet-16,1910principle of the Roman-Dutch Law, he will not be entitled to enrich
himself at the defendant’s expense. The plaintiff, however, admitsthat the defendant is entitled to compensation.
I think, therefore, it would be right and equitable to treat thedefendant as if he stood in the position of a lessee to a lessor whohas acquiesced in or consented to the planting improvements, andto hold that he has a tacit hypothec for the value of them, but nota jus retentioni8, as we held in the case of Punchirala v. Cader Mohi-deen1 (139, D. C., Sandy, 18,626), following the ruling of Maasdorp
J. in De Beer’s Consolidated Mines v. London'and South AfricanExploration Co.3 cited in Mr. Walter Pereira’s book on the Bight ofCompensation for Improvements. The amount of compensationwill be ascertained as the learned District Judge proposes in hisjudgment, and the appeal will be dismissed with costs.
Wood Renton J.—
The question raised by this appeal is whether, in view of theprovisions of section 2 of Ordinance No. 7 of 1840, the pursRoman-Dutch Law, by which, where a father buys with his ownmoney a piece of land in the name of . a minor child, but himselfaccepts delivery of the deed, he becomes the owner of the land,inasmuch as he could have no mandate from the minor to nominatehim as the purchaser, is in force in Ceylon. I would answer thisquestion in the negative. In the cases in which an affirmativeanswer to it has been given (see, e.g., Banhamy v. Bastion Vedarala3and Perera v. David Appu*) the effect of Ordinance No. 7 of 1840was not considered. The case of Affefudeen v. Periatamby* is clearlydistinguishable. There the ratio decidendi was that the transactionwas a donation and not a sale. Moreover, in that case His Lordshipthe Chief Justice raised the very question now submitted to us,while in my judgment I pointed out in effect that, in view of thedecision in Perera v. David Appu, the matter was not open toreconsideration by a Bench of two Judges.
J.
Ammal v.Kcmgany
Appeal dismissed.
♦
1 S. C. Min., Feb. 4,1910.* (1897) 2 If. L. R. 360.
110 S. C. 359.* (1903) 6 N. L. R. 236.
* (1909) 12 N. L. R. 313.