I would further remark that another question raised in theargument was equally beside the point, viz., the question discussedby Voet in the first paragraph of this title, whether the dominiumwhich he understands the Digest to impute to the purchaser is averum dominium or only a fictum dominium. It does not matter inthe least whether the dominium was fictitious or real. When theRoman lawyers invented a legal fiction, their object was not to setup a distinction, but to make an assimilation. If in this case thePraetor imputed a fictum dominium' to the purchaser (as Voetthinks), he meant him to be in exactly the same position as aperson with a verum dominium.1
It is clear, therefore, according to Roman-Dutch law, that in thecase under consideration the purchaser acquires a title (whetherlegal or fictitious it does not matter) in the property originally soldto him by his vendor. I will now proceed to examine the Ceylonauthorities with reference to the principle above enunciated. Untilthe case of Rajapdksa v. Fernando 2 the current of the authoritiesin recent years (in spite of occasional fluctuations) seemed to runstrongly in the direction of qualifying and limiting the application ofthe principle. The first of the authorities is Kadirevelu Pulle v. Pina.3This was a Full Court case, and if it really turned upon the questionof the application of the principle would be decisive. (See Pererav. Perera.*) But a careful examination of the case shows that it
1 For a further discussion of the origin and significance of the exceptio rei vinditeeet tradilce see footnote at the end of this judgment.
* (1918) 20 N. L. R. 301.* (1899) 9. S. C. O. 36.
* (1933) 7 N. L. R. 173.
( 267 )
really turned upon something quite different. What was it thatKadirevelu Putte v. Pina 1 actually decided? If the facts arecarefully examined, it will be seen that what it decided was thatthe registration of a deed of transfer was inoperative where thetransferor had no title at the date of registration. It contains, indeed,a dictum by Clarence J., to the effect that a purchaser who hasbought a property before his vendor acquires title has nothing morethan a right to call upon his vendor for a conveyance when hisvendor dees acquire title, and has no title in himself by virtue of thesubsequent title accruing to the vendor. This dictum, however (whichwas made without any reference to, or discussion of, the principlescf law above explained), was in the circumstances purely obiter.
The next case, which was a fluctuation in the opposite direction,was Selo Hamy v. Raphael,2 where a purchaser at a Fiscal’s sale,before he obtained the conveyance of the Fiscal, sold it to M, whoafterwards sold it to the plaintiff. The Fiscal’s conveyance was.obtained after this second sale, and the title conveyed by thatconveyance was held, ipso facto, to pass to the plaintiff. Thepassage from Yoet was not considered, and the judgment was basedupon the equitable principle that equity will consider everythingdone which ought to be done.
The question next arose incidentally in the case of De Silva v.Shaik Ali,* and Withers J. there laid down the law in the followinguncompromising terms:—•
“ If A sells for value and delivers to me a land which does not atthe time belong to him, if he acquires it afterwards and bring anaction to re-vindicate it, I may defeat him by saying: But you soldand delivered it to me. I may plead sale and delivery with equaleffect against the true proprietor, who, inheriting the land from myvendor, seeks to re-vindic’ate it, and this plea is available to thoseto whom I sell for value and their assigps.
The current now begins to set strongly against the doctrine thusenunciated by Withers J. The case next in order is Garolis v.Jamis,* where Hutchinson G.J. tor the first time put forward atheory that Ordinance No.. 7 of 1840 abrogated the principleenunciated by Voet. This was a decision by a single Judge.
(hiruhamy v. Subaseris,5 the next case, was a temporary fluctua-tion in the other direction. Wood Benton and Grenier JJ. declinedto follow Garolis v. Jainis* for the purpose of the case before them,declaring that it has been held in a long series of decisions that theprovisions of Ordinance No. 7 of 1840 are not to be used as acovering for fraud or what is tantamount to fraud. But it may besuggested that if the case was one of this nature, it was a case notfor the exceptio rei venditee et traditee, but for the exceptio doli.
(1895) 1 N. L. R. 228.
* (1909) 1 C. L. R. 224.
* (1910) 13N.L.B. 112.
QvnatiUekev. Fernando
(1899) 9 S. O. C. 36.
(1889) 1 S. C. R. 73.
C 268 )
• QunaUUdcev. Fernando
In Alvis v. Fernando,1 which was a decision by a Bench of twoJudges, Middleton J. associated himself with the opinion previouslyexpressed by Hutchinson C.J. in Carolie v. Jamie, but this was acase not for sale, but of mortgage. Middleton C.J.’s observationswere therefore, to a certain extent only obiter.
Next came Mohammed Bhoy v. Lebbe Marikar,2 in which a Benchof two Judges, LasCelles C.J. and De Sampayo J. for the first time.adopted the proposition that Ordinance No. 7 of 1840 abrogatedthe principle enunciated by Yoet. Lascelles C.J. also suggested thatthe principle was only available as a defence, and could not be madethe basis of an action.
This case was followed by Wakieta v. Munaeinghe.3 There WoodRenton C.J. did not discuss the principle, but merely said that thecase of Mohammed Bhoy v. Lebbe Mankar,2 being a decisipn by twoJudges, was binding on the Court. He expressed the opinion,however, that the principle of the exceptio rei venditce et traditcewould not be invoked by a plaintiff, but was a plea only appropriateto a defendant.
In 1915, however, in Nonohamy v. Appusinno1 a counter-currentfor the first time set in. This is a decision by a Bench oftwo Judges. The action was a partition action. The question of thesupposed limitation of the principle to the protection of a defendantwas ignored. So also was the question of the effect of OrdinanceNo 7 of 1840. The Court held that the original deed of a vendorwho subsequently acquired good title estopped him from denyingthe title of his vendee to the interest purported to be conveyed.
Finally came the case of Rajapaksa v. Fernando,* which wasdecided by my brothers Ennis and Shaw. The Court was here faceto face with conflicting decisions, and in its judgment it declined tofollow Mohammed Bhoy v. Lebbe Marikar 2 as to the effect of Ordi-nance No. 7 of 1840. The Court held that that Ordinance did notapply to estates vesting by operation of law, and that consequentlythere was nothing in that Ordinance to limit the application of theprinciple of the Roman-Dutch law. Shaw J., however, notes thatthis was a case, in which the defendant was merely seeking to defendhis position, and he left open the question of the rights of a plaintiffto assert the same principle.
The case is now open for the consideration of this Court, and, inview of what I have said before, it is hardly necessary to say thatI am of opinion that we ought to follow the line of cases to whichRajapakea v. Fernando 5 belongs, and that for the purpose of theassertion of the principle of the Roman-Dutch law enunciated byVoet, no distinction is to be drawn between the case of a persondefending his possession and that of a person claiming possession ofa property.
» {1911) 14 N. L. S. 90.
{1912) IS N. L. S. 466.
{1913} 2 Matara Cases 156.
{1915) 1 C. W. B. SO.
* {1918) 20 N. L. B. 301.
( 269 )
It now remains to apply these principles to the circumstances ofthe present case. The origin of the dispute in • this case is adeed No. 860 of September 23, 1882, in which Maria Felsinger conveyedthe property in question to her son Palis Swaris, subject to a fideicommissum in favour of his brothers Stephen and Nicholas if he diedwithout issue and subject to a life interest in herself. Stephen andNicholas, before their rights as fidei commissaries actually accrued tothem, purported to convey the title to one Don Cornells Appuhamy.He is the primus emptor. In 1896 Palis died without issue, andStephen and Nicholas thus for the first time acquired a definite title.According to the position above explained, this' of itself vested asimilar title in Don. Comelis Appuhamy. In 1905 he conveyed thistitle to Charles Perera, who is thus the secundus, emptor.
What was the defendant’s position? He first of all set up titleunder a deed No. 884 of December 5, 1893, in which Palis Swarisand his mother Maria Felsinger purported to join together in aconveyance to Maria Felsinger’s second husband Daniel J. Fernando.Palis and Maria Felsinger claimed to be entitled to make this con-veyance, notwithstanding the terms of the deed of 1882. Thiscontention has already been fought out between the two contendingsides in certain land acquisition proceedings, and judgment wasgiven against it. Those claiming through Palis thereupon adoptedanother line of campaign. In 1913 Stephen and Nicholas wereinduced to execute a deed in favour of Lionel Oswin Fernando, theson of Daniel J. Fernando, and it is contended that- this document,having been executed subsequent to the date when Stephen andNicholas obtained title to the property, conveys a good title toLionel Oswin Fernando, whereas the earlier deed of 1895, by whichthey purported to convey to Don Comelis Appuhamy, having beenexecuted before they obtained title, could convey no title to him.
The property which Stephen and Nicholas thus purported toconvey to Lionel Oswin Fernando was by him convey to his fatherDaniel J. Fernando, and was by him convey to his son Justin VictorFernando, and was finally conveyed back to Lionel Oswin Fernandoin 1918.
For the reasons I have given above, I am clearly of opinion thatupon Stephen and Nicholas’ obtaining title to the property on thedeath of their brother in 1896, Don Comelis Appuhamy obtainedfull title to the property under the deed of 1895, and that nothingwhatever passed to Lionel Oswin Fernando under the deed of 1913.
The only remaining question is whether the plaintiff (who is theexecutrix of the executor of Charles Perera, the secundus emptor)could recover the property by virtue of the title which was thusconferred upon Don Comelis Appuhamy, the primus emptor. Ientertain no doubt whatever that she can. It is expressly laid downin the Digest that both the “ successors ” of the primus emptor andalso the secundus emptor have the benefit of the exceptio rei venditee
OunaUUtkev. Fernando
( 270
OunatUlektv. Fernando
et traditce. (See Digest, XXL, tit'., 3.) There is no reason why thesecundue emptor should not have the benefit of the correspondingaction. Similarly, if the secundus emptor has this right, his“ successors ” must have it also, and these must include the execu-trix of his executor.
The next question is: Against whom can the principle be asserted,and can it be asserted against the defendant in the present action? -Yoet declares that the exception can be opposed, not only to thefirst vendor, but' to all ab eo causam habentes, and he explains that bythese are meant all “ quibus venditor, iam dominus foetus, eandem. rem rursus titulo, sive oneroso sive luerativo, concessit. ” .It seemsclear that these words would include the case of a purchaser from avendor after the vendor had acquired title. This appears from theexpress words of the Digest, where it is declared if a vendor who sold afarm to a man before he obtained title, after he obtained title sold itto Maevius, it was considered more equitable that the first purchasershould be preferred to Maevius. (See Digest, XXL, Hi., 2.) It isclear, therefore, that the words also include a person who, like thedefendant in this action, only claims as a donee from the vendor.Nor is the question affected by the fact that this donee has causedthis property to pass through a series of transfers in his own familybefore it ultimately reverts to himself. I express no opinion on thequestion whether the principle could be asserted against a bona fidepurchaser for value without notice. The defendant in this case wasnot a purchaser for value, and, moreover, there can be no questionthat he had full notice.
It remains to consider certain subsidiary questions whichwere discussed in the course of the argument. The first is a plearaised by Mr. Bawa that the matter is res judicata in his favour.I have referred above to certain land acquisition proceedings inwhich the plaintiff was victorious. It was subsequent to theseproceedings that- the defendants tried to secure another string to hisbow by procuring the transfer from Stephen and Nicholas, onwhich he relies in this action. After he had succeeded in procuringthis transfer, there were certain other land acquisition proceedings,supplementary to those just mentioned, and an attempt was theremade by the plaintiff’s family to put forward his new claim. Thematter was carried to this Court, and this Court declined tolisten to the new plea* referring plaintiff’s counsel to a separateaction, and giving judgment .against him. Mr. Bawa contends that,inasmuch as the plaintiff did not bring the separate action, thejudgment against him was conclusive as to his new plea. Itis hardly necessary seriously to consider this proposition. Ajudgment cannot be conclusive against any person on a questionthat that judgment expressly leaves out of account.
The next point is also a question of res judicata. I have alreadyexplained that in the land acquisition proceedings above mentiohed
( 271 )
Daniel J. Fernando claimed that the Mei commissary rights ofStephen and Nicholas under the deed of 1882 had been extinguishedby the deed of 1893, under which Maria Felsinger and Palis Swanshave purported to convey the entire dominium to Daniel J. Fernando.This contention was decided against them, and the plaintiff maintainsthat the matter must be treated as res judicata in this action. Mr.Cooray, however, prays in aid the Land Acquisition AmendmentOrdinance, No. 44 of 1917, which declares in effect that in proceed-ings under the Land Acquisition Ordinance any determination of-a matter involving less than Bs. 1,000 shall not be res judicata,except in so far as it relates to the title to the land actually acquired.Tn the present instance the land acquired is a small strip valued atconsiderably less than Bs. 1,000. The acquisition proceedings wereprior to the enactment of Ordinance No. 44 of 1917, but Mr. Cooraycontends that any enactment relating to the principle of res judicatais an enactment dealing with a matter of procedure, and thatenactments dealing with matters of procedure have a retrospectiveaction, and, therefore, in this action he is entitled to the benefit ofthis Ordinance. The principle that enactments dealing withmatters of procedure have a retrospective effect means, I take it,this, that when any law is passed affecting the procedure in an action,the benefit or the burden of the new enactment comes into play inany proceedings subsequent to the enactment, and even in pro-ceedings pending at the time of the enactment, notwithstanding the.fact that the subject-matter of the proceedings was a thing anteriorto it. It may very well be that any enactment enlarging or limitingthe principle of res judicata is a matter of procedure. If in the■Civil Procedure Code now under the consideration of the Legislatureit were determined to codify the law of res judicata, the provisionsultimately enacted, being declared matters of procedure by the Code,would apply to all proceedings subsequent to its promulgation,even though they related to matters which had taken place before-that promulgation, But in all cases it is necessary to scrutinize firstof all the terms of the enactment itself. The question must bealways: What was the intention of the particular enactment?The enactment now under consideration is in the ■followingterms:—“ Where in any proceedings under this Ordinance any•question of title is determined by the Court under such circum-stances that in any subsequent legal proceedings the determinationwould be deemed to be res adjudicata as between the parties, such –determination shall not operate as res adjudicata, except so far as itrelates to the portion of land actually acquired.”
“ This Ordinance ” means not the amending Ordinance of 1917,hut the principal Ordinance of 1876. What the amending Ordinancedid was to add a new section to the principal Ordinance. By theeffect of Section 1 this addition took place from a date determinedby Proclamation, the date in fact being December 28, 1917.
QunatUlekev. Fernando
( 272 )
QunatiUekev. Fernando
It seems to me that the case propounded in the initial words ofthe new section: “ Where in any proceedings under this Ordinanceit is determined . . . . ” is the case of a determination madesubsequent to the date on which the new section comes intooperation. The thing contemplated is surely contemplated ashappening after the date of the operation of the new section. Inorder to bring the section into operation a new contingency mustarise. The words of the section do not cover a contingency whicharose before its enactment. In other words, the introductory phrase:“ Where in any proceedings under this Ordinance …. ” limits
the application of the section to a determination made subsequentto the commencement of the Ordinance. I do not think, therefore,that it is competent to Mr. Cooray to discuss over again the questionalready determined in the land acquisition proceedings abovereferred to.
I think it right to say that if I am wrong in this opinion, and thatif Ordinance No. 44 of 1917 has a retrospective effect, I should,nevertheless, be of the same opinion with regard to the effect of thedeed of 1882 as the Court which in 1913 gave judgment againstDaniel J. Fernando, through whom Mr. Cooray’s client now claims.That deed is in a very peculiar form; The parties to it are MariaFelsinger and Palis. Maria Felsinger conveyed to Palis the landunder consideration, subject to a restriction on alienation in favourof Stephen and Nicholas. So far as this restriction on alienation isconcerned, it appears to be the implied intention that it shall besuspended during the lifetime of Palis, from his attainment of the ageof twenty-five years until his death. The words are:“ But shall not
be at liberty to sell, mortgage, or alienate the same until he shallarrive at the said age of twenty-five years.” The jdeed goes on toprovide that “ if the said Swarisge Palis Swans should die withoutissue, then the said land and premises shall devolve and go to histwo brothers Swarisge Stephen Swaris and Swarisge NicholasSwaris.” If this were all, and if it were necessary to give an inter-pretation to this peculiarly-worded restriction, it would seem tobelong to that special class of fidei commissa discussed in Perera v.Perera.1 In other words, it would have to be interpreted as givingPalis Swaris the right of disposing of the land from the time heattained the age of twenty-five until his death, but as providing that ifin the interval he made no disposal of the property and died withoutissue (and, possibly, without disposing of the property by will), itshould vest in his two brothers. But this is not the whole of the deed.Superimposed on this restriction on alienation there is another restric-tion in favour of Maria Felsinger herself. She reserves to herselfthe right to possess and enjoy the rents, &e., of the property untilher death. It is only, therefore, in the event of Maria Felsinger dyingbefore Palis attains the age of twenty-five, that he is contemplated
i (1918) 20 N. L. B. 463.
( 278 )
as having a tree right of disposal of the property. If his mothersurvives his attainment of that age, his right of disposal is suspendeduntil her death. Those who prepared the deed of 1893, by whichMaria Felsinger and Palis purported to convey the whole dominiumto Daniel J. Fernando, appear to have considered that this restric-tion on alienation, between Palis’ attainment of the age of twenty-five and his mother’s death was solely intended for the benefit ofMaria Felsinger, and that, therefore, if she joined in the deed, therestriction would be inoperative and the dominium would pass. I donot think that this is a correct interpretation. It may very well bethat all that Maria Felsinger had in her mind when she imposed thisparticular restriction on her son was to secure herself, but what she,in fact, did by the terms of the deed was to confer a definite contin-gent interest upon Stephen and Nicholas. As long as Maria Felsingerlived, the fidei commissary rights of Stephen and- Nicholas weresecure. Their mother did, in fact, create a trust in their favour,and she could not afterwards put an end to that trust by joining in adisposition of the property. I am of opinion, therefore, that theprevious decision of the Court was right; that Stephen and Nicholassucceeded to the property on the death of their mother, and thatupon their so succeeding, their title, ipso facto, passed to the pre-decessors of the plaintiff.
ChmatiUekev. Fernando
In my opinion, therefore, the appeal should be allowed, withcosts.1
1 The following considerations are of so academical and historical a characterthat it is thought best to relegate them to a footnote:—
The exceptio rei oenditce et tradita in its origin (if Sohm’s account of itsorigin is to be accepted) had nothing to do with the special class of cases now .under discussion. It originated in the difference between the “ Quiritarian ” andthe “ Bonitarian ” tenure of property, which was finally abolished by Justinian.Sohm’s account is as follows: —
" The rule was that res mancipi could only be acquired in full Boman ownership(dominium ex jure Quiritium) by civil modes of acquisition. According to theCivil Law, ownership could not be acquired in a res mancipi by a mere traditioor' oecupatio. But towards the close of the Bepublic the Praaetor intervened- toreform the Civil Law in this respect. He declared that, where a res mancipihad only been informally sold (or otherwise alienated), and delivered, he would,nevertheless, protect the alienee and present possessor by means of an exceptiorei venditte et traditee, if the alienor (whose dominium ex jure Quiritium wasnot, of course, affected by the transaction according to the form of Civil Law)brought an action to enforoe his ownership. The effect of the Praetor’sintervention was to render the dominium ex jure Quiritium (which on an informalalienation remained in the alienor) worthless as against the alienee. And,conversely, if a person who had acquired a res mancipi in an informal mannerlost possession of the thing, the Civil Law would not allow him to sue forits recovery by cindictiao. For having acquired it infernally, he was not owner.The Praetor, however, granted him the so-called actio Publiciana in rem, andthereby enabled him, in point of fact, to assert his right -as effectually, in allessentials, as if he had really been the owner of the thing. The Praetor, inshort, set aside the ownership of the Civil Law (quiritary ownership), andopposed to it what was practically a different kind -of ownership, namely,praetorian ownership; and though the praetorian title did not make the alieneeformal owner, nevertheless, it operated by means of the exceptio and actiojust mentioned, to make the thing, for all practical purposes part of thealienee’s property. Hence property held in praetorian ownership was saidto be in bonis (‘ Bonitary ownership ’). (Shorn’s Institutes of Roman law,3rd ed., pp. 310-311.) ”
( 274 )
v. Fernando
Ennis J.—
This was an action for declaration of title to land, for ejectment,and damages. The land originally belonged to one Bastian Alwis,who on September 21, 1849, conveyed 1 rood 14.92 perches toGeorge Felsinger. George Felsinger and his wife gifted this portionto Maria Felsinger, subject to a fidei commiasum in favour of PalisSwaris, Stephen Swaris, and Nicholas Swaris. On November 21,1872, Bastian Alwis conveyed a further 2 roods 28 perches to MariaFelsinger.
Voet, in XX/., it., 3, points out that the Digest, as he understands it, imputesthe dominium to a purchaser, whose title, originally invalid, is confirmed throughthe vendor’s subsequent title. He asks, why then, the Fublician action? And'suggests as an answer that it is fictum magis quam serum dominium that isunderstood.
It is submitted, with great deference to so high an authority, that Voet hashere misunderstood the Latin text; this text does not, if properly read, imputea dominium to the purchaser at all. The sentence he has in mind is from anopinion of Julian quoted by Ulpian (Digest De Rei Vindications, section 72).
" Bed et si ipse possideret et tu peteres, adversus exceptionem dominii repli-cations utereris. ” He understands this to mean:“But if the vendor were in
possession and you were plaintiff, then, in reply to his defence, you would setup a replicatio dominii, i.e., a replication claiming that .you had the .dominium. ”But this is not the meaning. Dominii goes with exceptionem, and not withreplicatione: Fothier prints the two expressions with a comma between them,thus:" adversus exceptionem dominii, replicatione utereris. ” The meaning is
“upon the vendor’s setting up the exceptio dominii, you would reply with anappropriate replication. ”
This is placed beyond doubt by another version of the same opinion, givenin another chapter of the Digest, where the “ appropriate replication ’’ is morefully indicated:“ Et, si ipse eum possideret et Publiciana peteres adversus,
excipientem SI NON SUUS ESSET, replicatione utereris, et per noc inteUigeretureum fundum rursum vendidtisse quern in bonis non haberat. ” (Digest, XLIV., iv.,32.): Here the exception si non suus esset is the exceptio dominii. Another formof it referred to elsewhere in the Digest is SI EA RES POSSESSORIS NONSIT. See Digest VI., »., 17. The meaning is as follows:—The case con-templated is that of Titus selling you a farm which really belongs to Sem-pronius. Afterwards Titius becomes the heir to Sempronius, ai)d having thusfor the first time acquired a dominium, he, sells the same farm to Maevius.Titius is in possession. (It is not clear why.' One would have expected Maeviusto have been in possession, and the action to be brought against Maevius.)Ton sue Titius (? Maevius) by the Publician action. The matter comes beforethe Praetor for reference to the arbiter, and the Praetor draws up the formulaof reference. The defendant, by way of exceptio pleads title. This is theexceptio dominii. The Praetor, therefore, inserts a clause to the effect thatplaintiff is only to be given his remedy if it appears that the defendant wasnot entitled to the dominium. The plaintiff, thereupon, asks for a replicationon the equitable grounds of the case. The PraBtor inserts, therefore, acounterbalancing replication, instructing the arbitrator that effect is not tobe given to the defendant’s exceptio, if it appears that the farm which he hassince sold to Maevius had already ceased to be held by him in bonis by virtueof its previous sale and delivery to you.'
Voet’s comment on this passage is as follows:“ In quantum venditor quidem
naturaliter dominus esse non desiit ex venditione ac- traditions, quae dominiiacquisitionem antecessit, et ita antiquior est dominio acquisito; sed tamen Prceiorfingit, rem venditam, acquisito postmodum per venditorem dominio ex bonis ejusrecessisse, emptorique adiectam esse. ” (Voet VI., ii., 8.)
The PrcBtor does not pretend that the actual dominium has passed away fromthe vendor, but only that he had ceased to hold the farm, in bonis, which is notquite the same thing. Pothier’S comment more exactly expresses the situation: —“ Sensus est : intelligent Titius per hanc replicationem se eum fundum in bonisnon habuisse, quum eum, iam tibi a se venditum, ipse rursus vendidit Maevio.Quamvis enim Titius, eo tempore quo rursus fundum vendi dit Maevio, essetiam hujus fundi dominus ex subtilitate intis, upote domino heres factus; tamenre vera et effectu eum fundum in bonis non habuisse inteUigitur. ”
( 275 )
On September 23, 1882, Maria Felsinger, by deed No. 860, giftedthe whole land, 5 roods 2.92 perches, to her son Palis. It has beentwice held by the Supreme Court that this gift contained a fideicommiseum in favour of Palis’ two brothers Stephen and Nicholas.
On September 25, 1893, by deed No. 884, Maria Felsinger andPalis convened the whole land to Daniel J. Fernando, subject to alife interest to Maria Felsinger.
On May 23, 1895, Stephen and Nicholas conveyed the whole land,by deed No. 1,923, to Don Cornelia Appuhamy.
Palis died without issue in 1896.
Don Cornells Appuhamy, on February 2, 1905, by deed No. 4,028,conveyed his interest to Charles Perera, who entered into possession.Don Cornells Appuhamy had previously purchased the land at anexecution sale against Palis and obtained a Fiscal’s transfer onJuly 24, 1903.
Don Cornells died on March 25, 1908, leaving the property by willto James Perera.
On August 31, 1909, D. J. Fernando brought a possessory actionNo. 29,620 against James Perera. The case went to' the PrivyCouncil, and D. J. Fernando was declared entitled to the possessionuntil the death of Maria Felsinger.
On June 7, 1910, the Crown, having acquired 2.50 perches of theland, paid into Court the sum of Bs. 392.62 in case No. 2,307.On appeal, this Court held that D. J. Fernando was entitledto the interest on the money till the death of Maria Felsinger,and after her death the principal was to be paid to Stephen andNicholas.
On December 17, 1913, by deed No. 61, Stephen and Nicholasgifted the land, subject to Maria Felsinger’s life interest, to LionelOswin Fernando, who gifted it by deed No. 302 of January 17, 1916,to his father Daniel J. Fernando, who gifted it by deed No. 3,676 ofAugust 27, 1918, to another of his sons, Justin Victor Fernando,who, by deed No. 20 of September 17, 1918, gifted it, subject to alease in favour of the added-defendant in the case, to his brotherLionel Oswin Fernando, the defendant in the case.
Maria Felsinger died in January, 1916.
James Perera died on September 18, 1918, leaving the propertyby will to his wife, the plaintiff jn the case.
On January '24, 1916, on an appeal in proceedings in the LandAcquisition Case No. 2,307, in which James Perera had applied forpayment of the sum in Court on Maria Felsinger’s death, which wasopposed by D. J. Fernando on the basis that he was entitled byright of his conveyance No. 302 of January 17, 1916, based onStephen and Nicholas’ gift of December 17, 1913, the Supreme Courtheld that D. J. Fernando’s claim should be made in a separateaction.
Burns J.
Qunatillekev. Fernando
( 276 )
Ennis J.
GhmatiUekev. Fernando
It was urged in this appeal that as D. J. Fernando did not institutefurther proceedings, the matter was res judicata against him. As,however, D. J. Fernando’s rights were expressly reserved, I amunable to see how the matter is res judicata.
It was further urged on appeal that the defendant acquired notitle at all through the gift of Stephen and Nicholas in December,1913, as they had previously sold on March 27, 1897, to one Hendrick .Silva, who sold it to Karimjee Jafferjee. Karimjee Jafferjee broughta case, No. 20,345, against Charles Perera, who was in possession,and his action was dismissed on September 3, 1906. It is impossibleto deal with this point a6 there was no issue on it, and the documentshave not been put in evidence.
The main point urged on appeal was that the sale by Stephen andNicholas, by their deed No. 1,923 of May 23, 1895, before thedeath of Palis, was confirmed by the acquisition of title by them onthe death of Palis in 1896, and that the title passed without awritten conveyance.
I have already expressed an opinion in the case of Rajapaksa v.Fernando 1 that the Boman-Dutch doctrine of confirmation andtransmission of land by operation of law is not affected by theOrdinance No. 7 of 1840.
The learned Judge in the District Court held that the Boman-Dutch doctrine of confirmation applied only where the exceptio reivenditce was set up by a person in possession, and he dismissed theplaintiff’s action on that ground.
Mr. Bawa, for the plaintiff on appeal, addressed to us an exhaustiveargument on the Boman-Dutch law, tracing the commentary inVoet XXL., 3, 1 to the Digest. The passage in Yoet has been citedat length in the Court below and by my brother Shaw in the case ofRajapaksa v. Fernando. It says that from the time the vendoracquired dominium, the “ dominium ” annexed to the originalpurchaser. The passages in the Digest speak, in one instance, ofthe original purchaser acquiring priority; in another, of the originalpurchaser acquiring dominium; and in a third, of the originalpurchaser being able to rely upon an exception framed to meet thecase. It would seem that a defendant in possession could defend hispossession by the exceptio rei venditce, and that a plaintiff coulduse, in replication, a similar defence or a defence framed 'to meetthe case.
A purchaser could sue whether he was in possession or not, for itwould seem that delivery might be made without possession, e.g.,adjudicata (Dig. VI. 11, 7).
I am accordingly of opinion that the plaintiff is entitled to succeed,and I would allow the appeal, with costs, in both Courts, and damagesas agreed in the Court below.
* (1118) 20 N. L: S. 301.
( 277 )
De Sampayo J.—
I have had the advantage of reading the judgment prepared bythe Chief Justice. All the authorities are there collated anddiscussed, and it is unnecessary for me to refer to them in detail.I wish only to say a word with regard to my judgment in MohammedBhoy v. Lebbe Marikar.1 The only passage cited to the Courtin that case was Voet, XXI., Hi., 2. But when the whole lawon the subject of the Publician action is examined, I thinlr it will befound that the right of a vendee to bring that form of action dependson possession. For that purpose I do not' thinlr the ficta traditio,or symbolical delivery, such as takes place when the deed of con-veyance is delivered, is enough. Such delivery satisfies the require-ment of the Boman-Dutch law, that in order to pass title thereshould be delivery of the thing, but I thinlr that for the purpose ofthe Publician action there must have been actual possession, how-ever short the period of possession may be. For the PrsBtor’slegislation enabled the vendee to rely on a legal presumption thathe had acquired title by usucapion or prescription, though thenecessary period of possession was not complete. This presumptionthe vendee was not allowed to controvert. The fiction involvedin the action is not that the plaintiff had possession, but that he hadprescriptive title. Consequently, I think it was necessary that theplaintiff should have had possession, though not possession for theperiod required for usucapion. Neither do I think that Voet, XXI.,in., i., means that on the vendor acquiring title subsequently to thesale the title passes, ipso facto, to the vendee. The confirmatio hespeaks of is not, I think, vesting of title, but the protection whichthe vendee acquires. For Voet goes on immediately to say that thevendor then has the right of suing his vendor or party in possessionand defeating his opponent by pleading the exceptio dormnii in hisreplication, and later in the same passage he says that the actioPubUciana is given in respect of an ownership, which is only sup-ported by a legal fiction. It appears to me that the vendee acquiresno legal title as such by the mere fact of his vendor acquiring goodtitle subsequently to the sale. The law appears to work out asfollows: If the vendee is still in possession and is used by thevendor or any successor from him, he can successfully plead theexceptio rei vindiUe et traduz, or, as we call it, the plea of estoppel.If he has lost possession and. is obliged to sue his vendor or successor,he can bring the Publician action. Whether the Publicum actionand the fiction on which it is founded are available to us or not,
I think the same result may be obtained here. The question, after'all, is one of procedure. It is true that the vendee will not be ableto bring a vindicatory action because he has no title. But hemay in his plaint merely put forward his deed from the vendor,
OunatHUkev. Fernando
1 {1912) IS N. L. B. 466.
( 278 )
Du SampayoJ.
. GhinatiUdeev. Fernando
and if – the vendor claims title in himself, he may be met by theplaintiff in the replication by the same exceptio rei venditce et traditee,or by the other plea exceptio dominii acquisiti. Under our presentprocedure a replication is not absolutely necessary, but the samepurpose may be served by having an issue stated at the trial. Thisis practically what happened in this case. For the District Judgeheard counsel on the question as to the effect of the deeds of.Stephen Swaris and Nicholas Swaris to the plaintiff’s predecessorsin title aVd to the defendant’s predecessor in title respectively. Iagree that in the circumstances disclosed the defendant’s deed fromhis so-called vendor was of the same quality as the vendor’s owndeed from Stephen Swaris and Nicholas Swaris, which was a deedof gift. Consequently the defendant is in the possession of a suc-cessor of those two persons, and is subject to the same pleas as theythemselves would have been. I do not think that a real secondpurchaser who has purchased bona fide and for value can be defeated,except by the first purchaser obtaining a further deed from thevendor under the Ordinance No. 7 of 1840.
With regard to Rajapdkaa v. Fernando,1 I quite agree that theOrdinance No. 7 of 1840 has no application when the title passes byoperation of law. But the difficulty I feel is whether in a case ofthe kind under consideration title does pass whether by operationof law or otherwise. I have already alluded to that matter andneed say no more. There remains the question of a suitable remedyfor a vendee. I am prepared, if necessary, to sweep away the formsand technicalities which the Roman Praetor still surrounded thenewly invented action, and to give the vendee a straight actionagainst the vendor or his successor. As I have above indicated,however, there is already such an action available, and in the presentcase, which is one of that description, the plaintiff, I think, ought tosucceed.
I also agree with the Chief Justice ^with regard to the circumstancesof res judicata relied on by the plaintiff.
I think that the appeal should be allowed, with costs.
Appeal allowed.
(1918) 20 N. L. B. 301.