002-NLR-NLR-V-62-BEATRICE-PERERA-Appellant-and-N.-A.-PERERA-and-others-Respondent.pdf
Per era v. Per era
5
I960[In the Privy Council]
Present: Viscount Simonds, Lord Tucker, Lord Jenkins, LordMorris of Borth-y-Gest, Mr. L. M. D. de SilvaBEATRICE PERERA, Appellant, and N. A. PERERA and other*,
Respondents
Privy Council Appeal No. 24 of 1957
S.C. 99-100—D. C. Colombo, 6,306fL.
Vendor and purchaser—Exeeptio rei venditae et traditae—Section 238 of Civi&Procedure Code—Judgment debtor is not immune Jron» the consequences of his.-own act.
Under the doctrine of the exeeptio rei venditae et traditae the purchaser whohad got possession from a vendor, who at the time had no title or had no rightto convey title, could rely upon a title subsequently acquired by the vendor. *
By section 238 of the Civil Procedure Code—
“When a seizure of immovable property is effected under a writ ofexecution and made known as provided by section 237 and notice of theseizure is registered . . . under the Registration of Documents Ordinance, anysale, conveyance, mortgage, lease, or disposition of the property seized^ madeafter the seizure and registration of the notice of seizure and while suchregistration remains in foreo is void as against a purchaser from the Fiscalselling under the writ of execution and as against alt poi-sons deriving titleunder or through the purchaser.” _
Held, that the words “ all persons ” do not include the judgment-debtorThe Section was designed and enacted to protect porsons against the acts of thejudgment-debtor and not to protect or to benefit the judgment-debtor himself.Accordingly, it cannot protect a judgment-debtor who sells property pondingseizure and buys it for himself subsequently from the oxecution-purchasor. Insuch a case, under the doctrine of the exeeptio rei vejtditae traditae, the titlewhich the judgment-debtor obtains from the execution-purchaser enures to thebenefit of the person to whom the judgment-debtor had previously transferredby private alienation pending the seizure.
When J sold certain immovable property to I*, he inadvertently omitted to
mention the fact that, in consequence of a decree entered against him, a notice
of seizure under section 237 (1) of the Civil Procedure Code had been served on
*
him and registered in respect of that property. At the execution-sale whichtook place after .the sale to L. the property was bought bj^Tjj who, shortlyafterwards, sold it to the plaintiff who was the wife and nominee of J. In thepresent action for declaration-of title brought by the plaintiff against the seconddefendant, to whom the.property had been devised by "L.—
Held, that inasmuch as section 238 of the Civil Procedure Code did notrender void as between themselves the deed of conveyance from J. to L., therewas no statutory provision which hindered the operation of the common law.'vTitle passed automatically from the plaintiff as J.’s nominee to the seconddefendant (as L.’s successor) under the doctrine of the exeeptio rei venditae et' traditae at the moment that T. transferred the property to the plaintiff.
2* -• J. N. B 24544 ( 6/60)
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MR. L. M. R. DE SILVA— Perera v. Perera
Appeal from a judgment of the Supreme Court reported in67 N. L. R. 440.
Jeseph Dearly for the plaintiff-appellant.
No appearance for the defendants-respondents.
Cur. adv. will.
March 8, 1960. [Delivered by Mr. de Silva]—
This is an action for declaration of title brought in July, 1951, by theappellant in the District Court of Colombo in respect of certain propertywhich had previously been sold by her husband one Julius Perera to oneLewis on Deed D 9 of the 17th April, 1950. Lewis had died in August,1950, leaving the property to his daughter the second respondent whowas the second defendant in the action. Probate of Lewis’ will was' issued to the second defendant’s husband who was the first defendantand is the first respondent. The appellant also asked for an order ofeviction. The third, fourth and fifth respondents are persons in occupa-tion under the second respondent.
The learned District Judge gave judgment for the appellant subject tothe payment by her of a sum of Us. 12,304*79 as compensation to therespondent. This compensation was in respect of a similar sum belonging. to Lewis which had been utilised to pay off a mortgage on the property.
The appellant and respondent both appealed to the Supreme Court.The former complained that the order for compensation was insupportableand the latter contended that the appellant was not entitled to a declara-tion of title or to a writ of ejectment. The Court of Appeal (Gratiaen, J.,with whom Gunasekara, J., agreed) held that the respondent was entitledto succeed, set aside the order of tho District Judge and dismissed theaction. For reasons which follow their Lordships are of opinion that thedecision of the Supreme Court must be upheld. In view' of that opinionthe correctness of the order for compensation does not arise forconsideration.
The Supreme Court accepted the findings of fact of the District Judgeand those that are relevant to a decision of this appeal can be shortlystated. The appellant (plaintiff) has been found to be a nominee of•Julius her husband. At the end of 1949 and in the beginning" of 1950Julius was in serious financial difficulties. His property was underseizure in several cases one of which was D. C. Colombo 9041/S. In thatcase judgment had been entered for Rs. 1,000 and interest payable on apromissory note. In April, 1950, Lewis, who was Julius’ uncle, reluctantly.. agreed to assist Julius to settle his debts so as to prevent his property,
■ worth about Rs. 30,000, from being sold in execution. He received- from Julius a document indicating that Rs. 16,COO was required to meet! his liabilities. An agreement was arrived at and was implemented on* the 17th April, 1950, whereby Julius sold the property to Lewis for
MR. L. M. D. DE SILVA— Per era. t>. Per era.
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Rs. 16,000 subject to the vendor’s right to repurchase it for the sameamount within five years. The conveyance contained the followingwarranties and assurances :—
“ And I the said vendor for myself and my heirs, executors, ad*ministrators and assigns do hereby covenant, promise and declarewith and to the said vendee, his heirs, executors, administrators andassigns that the said premises hereby sold and conveyed are free fromany encumbrance whatsoever and that I have not at any time hereto-fore made done or committed or been party or privy to any act, deed,matter or thing whatsoever whereby or by reason whereof the saidpremises or any part thereof are, is, can, * hall or may be impeached orencumbered in title, charge, estate or otherwise howsoever and that Xand my aforewritten shall and will at all times hereafter warrant and•defend the same or any part thereof unto liim and his aforewrittenagainst any person or persons whomsoever and further also shall andwill at all times hereafter at the request of the said vendee or hisaforewritten do and execute or cause to be done and executed allsuch further and other acts, deeds, matters, assurances and thingswhatsoever for the further and more perfectly assuring the saidpremises hereby sold and conveyed and every part thereof, unto himor his aforewritten as by him or his aforewritten may be reasonablyrequired.”
The Rs. 16,000 was paid to the creditors whose names had beendisclosed in the document handed by Julius to Lewis. At the same timeLewis was placed in possession of the property as owner and Juliusacted as rent collector from his former tenants who attorned to Lewis.When Lewis died and the property passed to the second respondent theAppellant and Julius acknowledged her as the new owner.
The material upon which the appellant’s case was constructed arosefrom the following further facts. When Julius persuaded Lewis in April,1950, to save the property from forced sales he had (perhaps throughinadvertence as stated by the Supreme Court) omitted to mention in thestatement of his debts payable under the decree in D. C. ColomboNo. 9041/S (mentioned above) under which at the time a notice of seizureunder section 237 (1) of the Civil Procedure Code (set out below) hadbeen served on him and registered. Lewis was unaware of the decreeand of the seizure. It will be seen presently that the appellant (Julius’nominee) is claiming on a title derived through execution proceedings incase 9041/S against Julius. The registration of the seizure had beenkept alive by the judgment-creditor’s proctor, a Mr. Rasanathan. Inpursuance of the seizure the property was put up for sale by the Fiscaland purchased in February, 1951, for Rs. 250 by one Thiagarajah whowas Rasanathan’s father-in-law. He has been held by the Courts inCeylon to have been Rasanathan’s nominee. A few days after Thiaga-rajah had obtained a Fiscal’s Transfer on the sale in execution he sold itto the appellant for Rs. 3,000. She .then instituted this action. Ineffect Julius is trying to evict the devisee from Lewis to whom he had. transferred the property and who had helped him out of his difficulties.
8MR. L. M. D. DE SILVA— Perera v. Per era,
The learned District Judge held that Thiagarajah was a nominee ofRasanathan but found that it was “ not possible to hold that Thiagarajahwas a nominee for Julius Perera ”. Chiefly for this reason he was unableto hold that the execution proceedings were a fraud contrived by Julius(as alleged by the respondent) and the Supreme Court found itself “unableto hold that the learned Judge was wrong in rejecting this argument (offraud) on the evidence before him”. The District Judge held that thetransfer to Lewis was void under the provision of section 238 of theCivil Procedure Code (set out below) and that the appellant, thoughJulius* nominee, got good title from Thiagarajah and that she was*entitled to succeed. The Supreme Court held that although the titlepassed through the execution proceedings in the first instance to theappellant the benefit of that title passed immediately thereon to Lewis’1devisee under the Roman Dutch Law doctrine of the exceplio rei venditaeet traditae.
, The only question which arises on this appeal is whether the SupremeCourt was right in so holding. It will be necessary to consider thedoctrine itself and also whether the sections of the Ceylon ProcedureCode referred to above in any way hinder or modify tlie application ofthe doctrine.
Sections 237 and 238 are to the following effect :—
“ 237.—(1) If the property is immovable, the seizure shall be madeby a notice signed by the Fiscal prohibiting the judgment-debtor fromtransferring or charging the property in any way, and all personsfrom receiving the same from him by purchase, gift or otherwise.”
The only other subsection of this section has no bearing on the questionsarising in this case.
** 238. When a seizure of immovable property is effected under a.Writ of execution and made known as provided by section 237 andnotice of the seizure is registered before the first day of January,nineteen hundred and twenty-eight, in the book formerly kept undersection 237 or is registered on or after the first day of January,nineteen hundred and twenty-eight, under the Registration of Docu-ments Ordinance, any sale, conveyance, mortgage, lease, or dispositionof the propei ty seized, made after the seizure and registration of thenotice of seizure and while such registration remains in force is void asagainst a purchaser from the Fiscal selling under the writ of execu-tion and as against all persons deriving title under or through thepurchaser.”
It is argued for the appellant that as a purchaser from Thiagara jahshe is a person “ deriving title under or through the purchaser ” at thefiscal’s sale and that consequently section 238 makes “void ” as againsther (and in effect against Julius she being Julius’ nominee) the conveyanceby Julius to Lewis. Their Lordships do not agree.
As observed by the Supreme Court the words “ all persons ” insection 238 are words of the “ utmost generality ” and “ are ex facie wideenough to include the judgment-debtor himself Rut the section hasbeen designed and enacted to protect persons against the acts of the
MR. L. M. D. DE SJX.VA—ir’erera. v. Jr’erera
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judgment-debtor and not to protect or to benefit the judgment-deb torhimself. The implication therefore arises that in this context “ allpersons ” do not include the judgment-debtor. It is reasonable and justto hold that such an implication arises and the necessity for so holding isillustrated by the facts of this case. To hold that the judgment-debtoris rendered immune by section 238 from the consequences of his ov-n actnamely the conveyance by him to Lewis, would be to permit grossinjustice because by so holding Julius who had sold a property and hadhad the advantage of the consideration would be enabled to evict hisvendee (actually vendee’s devisee). He would do so by taking advantageof a consequence of the non-disclosure by him to Lewis (whether deli-beratety or by inadvertence it matters not) of something he should have•disclosed namely the decree and seizure in case 9041 /S. If this disclosurehad been made Lewis would without doubt have paid off the judgmentdebt or made some other arrangement before accepting the conveyancefrom Julius.
Their Lordships observe that in the case of Anund Lall Doss v. Shaw 1the Hoard, dealing with a section of the Indian Civil Procedure Codewhich declared “ null and void ” a private alienation after a seizure in•execution proceedings had been effected, thought it could not be “ nullAnd void against all the world including even the vendor ”. The lan-guage of the section was in many ways different from section 238 and thefacts in the case were also different but the view expressed supports theview taken by their Lordships.
If, as held by their Lordships, section 238 does not render void asbetween themselves the deed of conveyance from Julius to Lewis thereis no statutory provision which hinders the operation of the common law.Their Lordships are of opinion that the title passed by operation of lawautomatically from the appellant as Julius’ nominee to the secondrespondent under the doctrine of the exceptio rei vendilae et traditae atthe moment that Thiagarajah transferred the property to the appellant.This doctrine and its development are discussed in .a judgment of theHoard delivered by Lord Phillimore in Gunaiilleke v. Fernando 2. Relyingon the authority of Voet Book 21 Title 3 he there set out in terms appro-priate to that case the basic principle relevant to the present case thus :—“ under this exception the purchaser who had got possession from avendor, who at the time had no title, could rely upon a title subse-quently acquired by the vendor.”
In the present case it might perhaps be suggested that it could not besaid that Julius (at the time he executed the conveyance in favour ofLewis) liiid no title. It could be suggested that he had a title which hecould not alienate. A reference to the authority relied on by LordPhillimore shows that the exceptio is applicable to such a case. VoetBook 21 Title 3 Section 1 (Gane’s translation) is to the following effect :—“ When the right of an alienator is confirmed the right also of himto whom, if you have regard to the start of the matter, the alienationhad been wrongfully made, is confirmed at the first moment ofacquisition of ownership by the original vendor.”
Y1872 Sutherland's Weekly Reporter p. 313.
*(1921) 22 Ceylon N. L. R. 385.
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PTJLKE, J.— Vanguard Fire and General Insurance Co. v. TAyanage
Any “ alienation "wrongfully made ” and not necessarily an alienationby a person without title is covered. Julius when he was under a pro-hibition against alienation made a wrongful alienation which was in-effective and the doctrine is applicable to his conveyance. It will alsobe seen that under the doctrine “ at the first moment of acquisition ” oftitle by Julius (under the deed in favour of his nominee) that title passedto the second defendant as Lewis’ successor.
For the reasons which they have given their Lordships will humblyadvise Her Majesty that the appeal be dismissed. As the respondentshave not appeared there will be no order as to costs.
Appeal dismissed-