047-NLR-NLR-V-14-FERNANDO-et-al-v.-FERNANDO-et-al.pdf
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Present: Lascelles A.C.J. and Grenier J.Aprilio.mi
FERNANDO el al v. FERNANDO et al.
79—D. C. Negombo, 8,152.
Estoppel—Co-owner standing by and permitting a co-oumer to lease thewhole land.
The plaintiffs who were entitled to three-fourths share of aland, not knowing that they were so entitled, stood by when thethird defendant, who was entitled to only one-fourth of the land,executed two successive leases in favour of the first and seconddefendants, in which he dealt with the whole land.
^|ln an action brought by the plaintiffs to vindicate their titleagainst the defendants, held that they were not estopped fromsetting up their title.
Lascelles A.C.J.—It is essential, in order to create an estoppelby acquiescence, to show that the plaintiffs, knowing that a violationof their rights was in progress, stood by and so misled the first' and ,second, defendants.
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Ap 'il 10,1911
Fi *nando v.2 emando
rpHE facts appear sufficiently from the headnote.
H. A. Jayewardene, for the plaintiffs, appellants.—The DistrictJudge finds that the plaintiffs did not know that they were ownersof three-fourths share at the time the third defendant leasedthe land to the other defendants. The plaintiffs could nottherefore be said to be estopped. Even if the plaintiffs knew thatthe third defendant was dealing with their shares, the plaintiffswould not be estopped under the circumstances of this case.The plaintiffs were not present at the execution of the lease ; theydid not induce the first and second defendants to take the landon lease.
Mere silence cannot amount to estoppel; there must be a dutyon the person sought to be estopped to speak. Silence amounts toa fraud for which a Court will grant relief, only when it is the non-disclosure of facts and circumstances which one is legally bound tocommunicate to the other. Banerjee v. Chatterjee ;* Amir Ali andWoodroffe, Law of Evidence, p. 653, 4th ed.
F. M. de Sararn, for the respondents.—The plaintiffs allowed thethird defendant to be in sole possession of the land and to executea lease for the whole land. The District Judge finds that theplaintiffs were aware of the execution of the lease and of their- rights. The plaintiffs are estopped by their acquiescence.
Counsel cited Sadris Appu v.Cornelis Appu,2 Leeds v. Amherst,®Caruppen Chetty v. Wijesinghe,4 Wilmot v. Barber.6
H. A. Jayewardene, in reply.
Cur. adv. vult.
April 10, 1911. Lascelles A.C.J.—
It is admitted that the plaintiffs are lawfully entitled to three-fourths and the third defendant to one-fourth of the land in dispute.The third defendant, although entitled to deal only with one-fourth,in 1903 leased the whole of the land to the first and second defend-ants. In 1909 the first and second defendants were ousted by theplaintiffs ; the first and second defendants thereupon brought apossessory action, and were restored to possession. The plaintiffsnow bring this action to vindicate their legal title.
The first and second defendants have not persisted in their pleathat their lessor has acquired prescriptive title against his co-pwner ;but they contend that the plaintiffs by acquiescence in this lease,and in a similar previous lease, have led the first and second defend-ants to believe that the third defendant owned the entirety of the
1 (J904) 32 Cal. 357.3 (1846) S Philips 117, at page 182.
* (ISOS) 8 N. L. R. 380 ; 2 Bal. 104.1 (1910) 14 X. L. R. 152
(1880) 93 L. T. 95 at page 98.
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land, and that the plaintiffs cannot now be allowed to dispute thetitle of the third defendant.
Where an estoppel of this kind is set up, I am of opinion that itis necessary that the facts on which the estoppel depends should beproved strictly and beyond reasonable doubt. Leases and deedsare commonly given by persons who have no legal interest in thesubject-matter of .the deed, and it would be a grave injustice to thelegal owners if the grantees under such instruments were given title,except on the clearest and most conclusive proof of acquiescenceon the part of the legal owners.
In the present case I am of opinion that the evidence fails on atleast two crucial points. It is essential, in order to create anestoppel by acquiescence, to show that the plaintiffs, knowing thata violation of their rights was in progress, stood by and so misledthe first and second defendants.
The District Judge disbelieves the evidence of the third defendant,that the whole land was included in the leases owing to a mistakeon the part of the notary, and he proceeds as follows : “ I thinkfurther, that the plaintiffs believed him {i.e., the third defendant)to be the owner, and to have been in possession through his previouslessees for many years as owner.” This, of course, is not the plaintiffs’version, but it is probable enough. But if the plaintiff did in factbelieve the third defendant to be the owner of the whole land, thedefence of acquiescence falls to the ground, as acquiescence isfounded on conduct with knowledge of one’srights. If theplaintiffswere not aware of their rights there can be no acquiescence. Meesonv. Clarkson.'
It is true that in a later portion of the judgment, which I cannotreconcile with the passage which I have cited, the learned DistrictJudge finds that the plaintiffs did know their rights at the time ofthe lease, but no explanation of the plaintiffs’ attitude is offeredwhich will square with the proved facts of the case.
Again, assuming that the plaintiffs were aware of their rights,I cannot find in the record any proof of silence or inaction on theirpart on any occasion when it was their duty to assert their rights.The inference which the learned District Judge draws that the firstplaintiff was aware at the time of the lease that the third defendantwas leasing the whole of the land appears to me to be little morethan surmise. In my opinion there is in this case no satisfactoryproof of the facts which are requisite to set up an estoppel againstthe plaintiffs.
I would add that the evidence, in my opinion, does not bring thepresent case within the rule which prevents a person who stands bywith the knowledge that another is spending money on his landunder a mistaken belief in his own rights, from afterwards assertinghis title without making compensation for the money so expended.
^ Hart 97.
April 10,1911
Lascelx.es
A.C.J.
Fernando v.Fernando
16-
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AprillOJOll
Lasoeues
A.C.J.
Fernando
Fernando
I would set aside the judgment of the District Judge with costshere and in the Court below, and enter judgment for the plaintiffsin terms of paragraphs 6 (1) and (2) of the plaint, but 1 would notaward any damages.
Grenier J.—
I agree that the plea of estoppel fails for want of distinct andsufficient proof in support of it. The case for the first and seconddefendants was that the plaintiffs, by permitting Caranis Fernandoand third defendant to be in possession of the entirety of the land,and thereafter by allowing them to remain in such possession fromMarch 3,1905, till April 5, 1909, caused the first and second defend-ants to believe that Caranis Fernando and third defendant hadtitle to the entirety of the land, and thereby induced the firstand second defendants to take the same on lease from the thirddefendant. Mere knowledge of a certain state of things does notnecessarily involve acquiescence. There is, besides no distinctproof that, by reason of anything actively done or passively assentedto by the plaintiffs, the first and second defendants were inducedto take the lease from the third defendant. The case would bedifferent if the plaintiffs stood by and allowed the third defendantto execute the lease without objection, and thus induced the firstand second defendants to believe that the third defendant was theowner and they were not. I think the ground of acquiescence putforward by the first and second defendants as mainly constitutingthe estoppel is considerably weakened, if not effectually, removed,by the action of the plaintiffs, in ousting the appellants on April 5,1909, for, if there had been acquiescence, it is difficult to understandwhy there should have been any ouster at all, although the first andsecond defendants were afterwards restored to possession.
The case may be a hard one for defendants, but the doctrine ofestoppel, which is founded on equitable principles, should not beapplied in such a way as to work manifest injustice to the plaintiffs,especially when there is an absence of clear proof of any acquiescenceon their part.
Set aside.