007-NLR-NLR-V-18-FERNANDO-v.-NAGAPPA-CHETTY.pdf
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Present: Wood Renton C.T. and De Sampnyo A.J.
1914.
FERNANDO o. NAGAPPA CHETTY.
102—D.Rat nap ura t 1,566
Fiscal's sale—Stale application for conveyance.
Mere lapse of time does not deprive a purchase at a Fiscal’s saleof the right to ask for a conveyance.
Facts which Court should take into consideration before orderinga conveyance to be granted indicated.
rjpHE facts are set out in the judgment.
Balasingham, for the appellant.—The District Judge is wrong inrefusing to direct .the Fiscal to issue a certificate on the ground thatthe sale had .taken place long ago. Staleness is not by itself asufficient reason to refuse the application (Amelia v. Sutia l). If in.the interval others had acquired a title by prescription, .their rightswould not in the least be affected by the granting of a conveyance.These principles were often acted upon in granting stale applicationsfor letters of administration, and are equally applicable to staleapplications for a Fiscal's conveyance.
Counsel also referred to Jaldin v. Nunna. 2
October IS, 1914. Wood Renton C.-J.—
This is an appeal against a refusal of the District Judge of Ratnapura to direct the Fiscal to execute a Fiscal's transfer in favour ofthe appellant as regards a land which had been purchased by hisfather at a Fiscal's sale in the year 1879. The appellant, in theaffidavit in support of his application in the District Court, statesthat the amount of the purchase money had been duly paid; thathis father had died about two years ago leaving him as his sole heir;and .that he was the only person now entitled to a Fiscal’s transferof the land. The District Judge declined to give effect to theapplication upon the ground that the sale was “ far .too old. " Theapplicant appeals, as I have said, from that order. It is now settledlaw—see the case of Arnoli* v. Sutia1—that mere lapse of time doesnot deprive a purchaser at a Fiscal's sale of the right to ask for aconveyance. But it was pointed out by this Court- in the case ofJaldin v. Nurma,2 in which the same principle was laid down, that*when a purchaser at a Fiscal’s sale delays to obtain a conveyance,and when the Fiscal declines to give him one without an order from
* (1910) 7 Tamb. 64.
* (1802) 1 S. C. R. 187.
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1M4.the Court, the Court being applied towould probably refuse to
Woodinterfere, unless it was satisfied that theapplicant had had posses-.
Kektoh CJ. sion by virtue of his purchase, and that no rights adverse to him hadFernando been created by his delay. The appellant's affidavit is absolutelysilent in regard to .the question as to who has been in possession of?/ the land since the date of the Fiscal's sale, and it- contains no state-ment showing that, in the interval between 1879 and the date ofthe application, there might not have been created, or have grownup. rights which ore adverse to the appellant. In view of the lawas declared by the Supreme Court in AmoUs v. Sutia,1 the learned' District Judge was, I think, wrong insummarily dismissing the
appellant's application on the ground of its staleness, and theappellant may-fairly be allowed an opportunity of showing, if he isin a position to do so, that, in spite of the long, delay that occurred,the Fiscal's .transfer ought still to be granted .to him. 1 wouldpropose to set. aside the order. appealed against, and send the caseback to the District Court for further inquiry and adjudication.The execution-debtor ought to have notice of the application. Itmay well be that he may desire to set up defences to it which aivnot dependent on the question of possession alone. Moreover, theDistrict judge ougixt to consider the question whether the estateof the appellant's father has been administered, and if it has not,whether it ought to be administered before effect can be given tothe present chum. The questions of the alleged death of theappellant's father, and whether or not the appellant is his sole heir,as stated in the affidavit, must be taken account of. The DistrictJudge should also consider who has had possession of the land since1879, and whether or not any rights adverse to the "appellant'sclaim have arisen in the interval. The whole burden of proof inregard to the matters stated in bis affidavit, and the additionalpoints which I have just mentioned, rests upon the appellant. Mybrother Be Sampayo has just directed.my attention .to the fact that-the only evidence as .to what was seized and sold, at present beforeus in the record, is the statement ox the vaguest character in the returnto the writ. This matter ought- also to be freed from doubt.
Dr Bamp.vyo A.J.—I agree.
Sol aside.
(1010) '/ Tamb. (A.