DIAS v. SILVA

080-NLR-NLR-V-41-DIAS-v.-SILVA.pdf


320
Diq^v. Silva.
J940
Present: Howard C.J. and Wijyevvardene J.
DIAS v. SILVA234—D. C. Galle, 36,097
Sale of land—Right to a re-transfer reserved—Sale of transferor's right inexecution—Vesting of property in purchaser—Transferee, a bidder atexecution sale—Etoppel—Civil Procedure Code, s. 341.
The defendant purchased certain property from A by deed of transfercontaining a provision whereby the defendant agreed with A that thelatter his heirs, executors, and administrators, but not his assigns,should be entitled to a transfer of the property' before August 11, 1937,on payment of the purchase price with interest.
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In execution of a decree against A, his rights under the deed wereduly seized and sold by the Fiscal and purchased by the plaintiff onMay 13, 1937, for a sum of money paid at the sale at which the defendanthimself was a bidder.
An application by A to set aside the sale was refused by the DistrictCourt and the sale was confirmed on August 9, 1937. In appeal the salewas set aside and the case sent back for further inquiry.
But eventually, the sale was confirmed by the Supreme Court.
On August 7, 1937, the plaintiff instituted the present action claiminga re-transfer as provided in the deed.
Held, that the right to a re-transfer under the deed vested in theplaintiff, in terms of section 275 of the Civil Procedure Code, on paymentby him of the purchase money when the sale became absolute.
If an order of Court is required, the order made on August 9, confirmingthe sale must be regarded as compliance with the section.
Held, further, that the defendant was estopped from denying theright of the plaintiff to purchase at the Fiscal’s sale A’s right to ask for are-conveyance of the property, having been a bidder at the sale himself.
A
PPEAL from a judgment of the District Judge of Galle.
H. V. Perera, K.C. (with him E. B. Wickremanayake and H. A.Chandrasena), for the plaintiff, appellant.
-\ E. Weerasooria, K.C. (with him N. Nadarajah, Ur A. Jayasundera,and V. F. Guneratne), for the defendant, respondent.
Cur. adv. vult.
February 12, 1940. Howard C.J.—
This is an appeal by the plaintiff-appellant from an order made by theDistrict Judge of Galle on July 29, 1938, dismissing the plaintiff’s actionwith costs. The case has arisen out of a deed of .Conditional TransferNo. 630 dated October 8, 1934, by which one E. W; Alahakoon for thesum of Rs. 750 transferred certain property to the defendant. This deedcontained a provision whereby the defendant agreed with {he said Alaha-koon that the latter his heirs, executors and administrators, but not hisassigns should be entitled to a transfer of the said property on or beforeAugust 10, 1937, on the payment of the said sum of Rs. 750 and interestat 16 per centum per annum. In execution of a decree against Alahakoonin D. C. Galle, case No. 33,457, his rights under the deed were duly seizedand sold by the Fiscal and purchased by the appellant on May 13, 1937,for the sum of Rs. 315 paid at the said sale at which the defendant himselfwas a bidder. E. W. Alahakoon thereupon filed papers to set aside thesale, but his application was dismissed and the sale confirmed by theCourt on August 9, 1937. E. W. Alahakoon appealed to the SupremeCourt against the dismissal of this application and on November 17, 1937,the appeal was allowed and the case sent back for further inquiry. At thefurther inquiry the sale was set aside but on appeal this order wasreversed and the sale confirmed on July 1, 1938, by a Supreme CourtBench constituted of Maartensz and Keuneman JJ. who held that theinterest of Alahakoon in the deed was rightly sold by the Fiscal as movableproperty. Meanwhile on July 14, 1937. the appellant’s proctor wrote a
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HOWARD C.J.—Dias v. Silva.
letter to the respondent tendering the full amount due on the deed. OnAugust 7, 1937, the appellant instituted this action claiming a re-transferas provided in the deed and depositing in Court the amount due under itst^rms.
The decision of the learned District Judge in dismissing this action wasbased on his interpretation of sections 274 to 281 of the Civil ProcedureCode. In this connection he held that an order of the Court vesting theproperty in the purchaser is necessary under section 281 and that, at thedate when the action was filed, no such order had been made. In thesecircumstances, at this time the plaintiff had no right to ask for a re-transferand his action was dismissed without prejudice to his right to bring anysubsequent action. Before- embarking on a consideration of the variousother matters that arise in this case, I propose to deal with the questionas to whether the decision of the District Judge on this point is correct.Counsel for the appellant contends that the right to a re-transfer underthe deed vested in the latter under the provisions of section 275 onpayment by him of the purchase money when the sale became absolut'e.Neither by Roman-Dutch law nor by statutory provision was any furtherdocument.or action required to vest this right in the appellant. I havefound singularly little authority either in the decisions of the Courts orfrom the authorities on the Code on the interpretation to be placed onthose sections to which I have referred. I am, therefore, of opinion thatthe words of section 281 must be given their ordinary meaning when readwith the context, that is to say, the other provisions dealing with the saleas disposition of property seized. It is apparent that the provisions withregard to sales of movable and immovable property differ in respect of thevery material particular. By virtue of section 275 the sales of movableproperty become absolute on payment of the purchase money at the sale.Sales of immovable property by virtue of section 282, on the contrary, donot become absolute until after thirty days. Such sales, moreover.
' require confirmation by the Court. So far as the sale of movable propertyis concerned, the provisions of section 275 fixing the time when the salebecomes absolute are supplemented by sections 277, 278, 279, 280, and 281.These sections do not, to my mind, limit the title to the property grantedby section 275 but supply machinery necessary to confer full possessionand ownership in the purchaser, when such machinery is required byreason of the particular type of property. Thus, section 277 providesthat in -regard to certain classes of movable property the title conferredby the receipt given under section 275 in respect of the absolute sale shallbe completed by delivery. Section 278 provides for delivery in respectof another class of property. Section 279 is intended to override diffi-culties that may be experienced by purchasers in obtaining possession ofdebts not secured by negotiable instruments and shares in public com-panies or corporations. Section 280 gives a permissive power to a Judgeto endorse negotiable instruments and shares when such endorsement isnecessary to complete the transfer. These provisions seem to me toprovide for special cases when the vesting of full ownership and possessioncannot be effected by the receipt given for the purchase money at the sale.Section 281 in my opinion must be regarded from a similar aspect and isintended to make provision for any case, not dealt with under the
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preceding provisions, when further action is required. Like section 280the power vested in.the Court is permissive and to my mind it is intendedthat a document is only to be executed when necessary. Similarly aCourt order wil be made if such action is required. In the present caseit seems to me that there is no provision of the law requiring either anorder of the Court or a document. If the view is taken that an order of-Court is required, the orders of the Court made on August- 9, 1937, andsubsequently on July 1. 1938, confirming the sale of May 13, 1937, mustbe regarded as compliance with the section. These orders vest theproperty in the appellant as from May 13, 1937. For the reasons I havegiven I am therefore of opinion that the decision of the District Judge waswrong and the plaintiff when he filed .the action was. entitled to ask for avc-transfer.
At the trial before the District Judge the respondent took the furtherpoint that in view of the words •“ but not assign ” in the deed, – theplaintiff who is a purchaser at the Fiscal’s sale is not entitled to ask for are-transfer and that the only persons who can do so are the defendant, hisheirs, executors and administrators. It was contended by the appellantboth in this Court and the Court below that the respondent by reason ofhis conduct at the sale when he was himself a bidder for the right sold isestopped from denying the right of the appellant to reconveyance. Thisissue was found by the District Judge in favour of the appellant. I havebeen referred by Counsel for the latter to a statement of the English lawwith regard to estoppel as formulated by Spencer Bower on Estoppel byRepresentation, 1923 edition, page 46, paragraph 55, and also page 195,paragraph 229. The law of “ Estoppel by Representation ” has alsobeen considered by this Court on various occasions, particularly withregard to the conduct of persons at sales. In Caruppen Chetty p. Wije-singhe it was held that a man who, having a charge or encumbranceupon a property, stands by and allows another to advance money on it,or, for that matter, to buy it under the impression that it is unencumbered,knowing that the latter is going to advance money, is estopped fromsetting up that interest against the title of the person whom he hasdeceived.' Jn Fernando v. Fernando it was held by Lascelles A.C.J.,that in ordter to create an estoppel by acquiescence, it is essential to showthat the plaintiffs, knowing that a violation of their rights was in progressstood by and so misled the first and second defendants. In Saparamaduv. Saparamadu ’, the first defendant took a conveyance from the seconddefendant of the land in question and registered the same. Thereafterthe land was sold in execution against the second defendant. The firstdefendant.,was present at the sale, but did not notify to the bidders at thesale that the had purchased the same. On an action by the purchaser fordeclaration of title it was held that the first defendant was estopped fromsetting up title to the same. In Rodrigo v. Karunaratne *, ft was heldthat to establish an estoppel, it must be proved that the action taken bythe party seeking to establish the estoppel was directly connected withthe false impression caused by the representation or conduct of the partysought to. be estopped. The representation or the conduct producing the
■ 14 A’: L. R. 152.5 20 Ar. L. R. 369.
– 14 At L. R. 156.• 21 At L. R. 360,
324Meiyappa Chettiar v. Ramasamy Chettiar.
impression must be, in effect, an invitation to the person affected by it todo a particular act. But it need not be proved that the party sought tobe estopped knew the truth about the facts which he by his statement orhis conduct misrepresented. Applying the principles laid down by thesedecisions to the present case it would appear that the defendant bybidding at the Fiscal’s sale has by his conduct represented that theinterest put up for auction was one that could be, the subject of a validsale. It was an invitation to the plaintiff to bid. Moreover the plaintiffhas given evidence to the effect that he would not have bidded at theFiscal’s sale if the defendant had raised an objection. In my opinionthe defendant is estopped from denying the right of the plaintiff topurchase at the Fiscal’s sale Alahakoon’s right to ask for a reconveyance •of the property. The District Judge’s finding on this point is thereforeaffirmed. In view of my ruling oh this point the question of the exactinterpretation to be placed on the expression “ but not assigns ” in thedeed of October 8, 1934, is not material.
In the circumstances the judgment and decree of the District Judgemust be set aside and judgment entered in appellant’s favour as claimedtogether with costs both in this Court and the Court below.
Wijeyewardene J.—I agree.
Appeal allowed.