031-NLR-NLR-V-18-BOTEJUE-et-al.-v.-JAYATILEKE.pdf
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Present: Pereira J. and De Sampayo A.J.
BOTEJUE et oZ. v. JAYATELEKE.
209—D. 0. Negombo, 9,417.
ietum /or cancellation of deed—.4 person who conspired with the partiesto the deed to bring about its execution cannot be made party toaction.
In an action for the cancellation of a deed, the parties to the deedneed be the only parties to the action. A person who has conspiredwith the parties to the deed to bring about its execution is notliable to be made a party to such an action when no damages areclaimed as sustained by the plaintiff by reason of the fraudulentexecution of the deed.
IJ1HE facts appear from the judgment.
Batoa, K.C. (with him A. St. V. Jayewardene), for third defendant*appellant.
De Soyza (with him Jayatileke), for plaintiff, respondent.
Cur. adv. vult.
August 7, 1914. Fekbiba J.—
On the 14th November, 1912, the first and second defendants bytheir deed No. 2,694 sold and conveyed to the plaintiffs .the allotmentsof land described in the first paragraph of the plaint. The plaintiffsomitted to have this deed registered. They lay the blame at thedoor of the third defendant, who was the notary who attested thedeed, and to whom they say the deed was entrusted to be registered.On the 11th December, 1912, the first and second defendantspurported to sell and convey the same allotment of land .to the fourthdefendant by deed No. 8,585, which was registered on the 13tbDecember, 1912.
The plaintiff impeaches deed No. 8,585 and its registration asfraudulent, charging the third defendant as the chief conspiratorin bringing about its dishonest execution and registration. No-damages are claimed as flowing wholly from the mere fact ofexecution and registration of the deed, but the plaintiff prays thatthe deed be declared void and that he be declared entitled tothe land, and (averring that the third defendant has cut andremoved certain trees on the land in chum) he further prays thatthe third defendant, along with the other defendants, be condemnedto pay tiie plaintiff the loss. Now, to my mind, it is clear fromthe evidence that the third defendant was the chief conspirator in
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1914.
Pereira J.
Botejue v.Jayatilcke
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the conspiracy to bring about the execution and registration of deedNo. 8,585, but he was not a party to the deed, nor has any legalrelationship between frfcn and any of the parties been established.That being so, it is manifest that his presence as a party to thisaction was not necessary so far as the plaintiff's prayer for a cancel-lation of deed No. 8,585 was concerned. Of course, an action fordamages wholly attributable to a fraud may be maintained againstall the participators in the fraud, but no such damages are hereclaimed. The relief claimed in consequence of the fraud pleadedis the cancellation-of deed No. 8,585; and in order to obtain th^.fcrelief, the parties to the deed alone were the proper parries to besued.
The plaintiff's claim * for damage is based oh the causes of actionaverred in paragraphs 8 and 9 of the plaint. There is nothing inparagraph 8 that touches .the third defendant, and, admittedly,there is not an iota of evidence in support of the averments in the9th paragraph.
However, the third defendant himself is to blame for the turnthe action toot in the Court below. Beyond vaguely slating inhis answer that the plaintiff could “ not maintain the action byreason of misjoinder of parties and causes of action, ’’ he does notappear to have taken any serious objection to being sued for thepurpose of enabling, the plaintiff to obtain an adjudication' oh thequestion of the fraud that is alleged to have vitiated deed No. 8,585,and he has certainly been proved to be the leading conspirator inthe perpetration of that fraud. I would therefore not interferewith the order against him for costs in the Court below.
I would set: aside the order condemning him along with the otherdefendants in damage (second paragraph of decree) and allow himcosts of appeal.
De Sampayo A.J.—I agree.
Set aside.