004-NLR-NLR-V-10-GUNESEKERE-v.-TEBERIS-et-al.pdf
( 18 )
1906.
November 28.
[Full Bench.]
Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Wood Benton.
GTJNESEKEBE TEBEBIS et al.
D.. C.t dalle, 7,777.
Sale for default of grain tax—Certificate of sale—Presumption—Burdenof proof—Prima facie title—Ordinance No. 11of1878,ss. 22and
23—Evidence Ordinance (No. 14 of 1895), s. 114.
Where a certificate of sale is given by the Government Agentunder section 22 of Ordinance No. 11 of 1878 in the form prescribedby the Ordinance in respect of property sold for non-payment ofgrain tax, a presumption arises under section 114 of the EvidenceOrdinance (No. 14 ^of 1895) in favour of the person relying on thecertificatethatthe salewasduly made under the Ordinance, and
that the tax, for non-payment of which the sile purported to be held,was in fact due, and that default had been made in payment of it.
Maiduma Banda v. Appuruwa (1) and Nevethehamy v. DonAndris (2) over-ruled.
WkkdtJ.—The Courtis not bound todrawthispresumption
in everycase, and would be entitled to callforproofif therebe
anythingwhicharousesitssuspicion or suggests the probability
that’ there was a departure from the regular and*- proper course ofbusiness in the ‘ particular case. Section 114 of the EvidenceOrdinanceitselfprovidesthatin the application of the maxims set
out inthe illustrationssuch circumstancesshould betakeninto
account.
A
PPEAL from a judgment of the District Judge of Galle (G.A. Baumgartner, Esq.).
The facts and the arguments sufficiently appear in the judgments–4. St. V. Jayeivardcne, for the defendants, appellants.
11. A. Jayewardene, for the plaintiff, respondent.
Gur. adv.’vult*
(1) (1695) 6 N. L. R. 267.(2) (1898) 4 N. L. R. 248.
( 19 )
28th November, 1906. Hutchinson C.J.—
The only question which has been argued before vis in this caseis whether the production of a certificate of purchase given by the■Government Agent under section 22 of Ordinance No. 11 of 1878,raises a presumption in favour of the person relying on the certi-ficate that the sale was duly made under the Ordinance, and thatthe tax, for non-payment of which the sale purported to have takenplace, was in fact due, and that default had been made in paymentof it.
The plaintiff alleged that by purchase for default of payment ofcommutation tax for 1887 against the former owners upon certifi-cates of sale dated 13th July, 1888, under Ordinance No. 11 of 1878,he became entitled to the lands in dispute in this action; that someof the defendants forcibly and unlawfully interfered with hispossession; and he also set up a title by prescription; and he claimedto be declared entitled to and quieted in the possession and damages.
Those of the defendants who are now appellants denied theplaintiff’s title, denied that the lands were sold for non-payment oftax, or that any arrears of tax were due, and, even if any sales wereheld, they challenged them as collusive, fraudulent, and mala fide, anddenied that they were acted on by the alleged purchasers, and theyalso claimed that they had acquired a prescriptive title to the lands.
The issues fixed, so far as they are at present material, were:—
Were the fields sold for non-payment of grain tax?
Were any arrears of tax due?
If the sales took place, were they collusive and fraudulent?
At the trial evidence was given on behalf of the plaintiff as to his
purchase and his cultivation of‘ the lands since the purchase andas to the defendants’ interference, and evidence was given for thedefendants in support of their allegations. The plaintiff relied on thecertificates of sale which he produced, whilst the defendants arguedthat the certificates were not enough. The certificates are all in thefollowing form, which is the one prescribed by the Ordinance: —“ Whereas the sum of Rs. was due for annual commuta-tion for 1887 in respect of the produce ofand for costs,
which sum has not been paid by the persons liable therefor{naming them). And whereas the said, land was seized in confor-mity with the Grain Tax Ordinance, No. 11 of 1878, and sold alsoin conformity therewith on the 13th November, 1887, and the
same was purchased by (plaintiff) for the sum of Es.which
has been duly paid by the said (plaintiff),” and then thd Govern-ment Agent certifies that plaintiff is the purchaser and that thelands, are and shall henceforward be vested in him and his heirs.
1906.
November 26.
( 20 )
1900, The District Judge found, and I think quite rightly, on theNovember 28. evidence that ihe charges of fraud set up by the defendants wereHutchinson ^ot proved, and he held that a certificate of sale such as the plaintiffC,J- produced raises a prima facie presumption that every thing hadbeen done leading up to such a certificate for the purpose of vestingthe property embraced by it in the purchaser, and he accordinglygave judgment for the plaintiff.
On this appeal it was argued for the appellants that the onus wason the plaintiff to prove that the sales were bona fide, and that theytook place within the time prescribed by the Ordinance and that thetaxes for default in payment of which the sale took place were infact due and unpaid. For the plaintiff it is contended that thecertificates are prima facie evidence of all facts which the law .requires to be and which are stated in them, and that the onus wason the defendants to prove that the sales were not in good faith orwere irregular or that the taxes were not due and unpaid.
Each party has been able to cite in support of his view decisionsor dicta of Judges. The appellants relied on a dictum of BonserC.J. in 1895 reported in 6 N. L. B. 267, followed in 1898 by Browne J.in a case reported in 4 N. L* R. 248, and they also cited some unre-ported cases. The plaintiff relied on cases reported in 3 8. C. C. 108,
5 S. C. C. 150, and 2 0. L. B, 114, and on some unreported cases,in one of which Justice Lawrie discussed the decision in 4 N. L. B.248 and declined to follow it.
The Evidence Ordinance, No. 14 of 1895, section 114, enacts: —
“ The court may presume the existence of any fact which it thinks,likely to have, happened, regard being had to the common course ofnatural events, human conduct, and public and private businessin their relation to the facts of the particular case/’ And one ofthe illustrations given is: —
(0) That judicial and official acts have been regularly performed.
In my opinion the dictum of Bonser C.J. and the judgmentwhich followed it were mistaken. They took no account of the rulelaid down by* the Evidence Ordinance. When those certificates wereput in evidence it was right for the Court to presume, in accordancewith section 114 of the Evidence Ordinance, that the sums statedin the certificates to be due and unpaid were due and unpaid, and thatthe lands were duly seized and sold and purchased and paid for inconformity with the provisions of the Grain Tax Ordinance. Theappeal therefore fails on the only point which was argued before us.
The appellants’ Advocate suggested that if we decided againsthim on this point he ought to be allowed now to produce evidence torebut the presumption. I think not.
( 21 )
He might l^ave produced that evidence at the trial, and I think 1906.he did produce the best evidence he could, which evidence the November29,District Judge rightly held to be insufficient. And for the same Hutchinson:reason I do not think the case ought to go back for any further 0,J*evidence on the question of prescription. I think the appeal oughtto be dismissed with costs.
Wendt J.—
The question we have to consider is, whether a certificate signedby the Government Agent of the sale of land for default of paymentof paddy tax, under Ordinance No. 11 of 1878, is prima facieevidence of the purchaser’s title as against the defaulting owner ofthe land, or whether the purchaser has in the first instance i*o estab-lish .that all the steps necessary to a valid sale had been .duly takenby the Government Agent. The certificate in the present case isregular on its face and follows the form prescribed by the Ordinance.The defendants admittedly were the owners of the land at the timethe alleged default in payment of the tax was made. Section 18of the Ordinance provides that if the amount due for annual commu-tation, crop commutation, or grain duly is not duly paid it shall belawful for the Government Agent to seize the land in respect of whichit is due, or any movable property thereon, to whomsoever suchland or movable property may belong, and if the amount due,together with the costs and charges payable under section 20, shallnot be sooner paid, to sell the property so seized’ by public auctionat any time not less than twenty days from the time of seizure.Section 18 also makes the tax a first charge upon the land. Section19 provides for the custody pending sale of property seized, andsection 20 awards certain charges to the Government Agent. Sec-tion 21 directs that any surplus realized shall be paid to the ownerof the property. Section 22 then enacts as follows:—“ If immovableproperty be sold for non-payment of annual commutation, cropcommutation, or grain duty, a certificate substantially in form Ain the schedule hereto signed by the Government Agent* or AssistantGovernment Agent shall vest the property sold in the purchaserfree from all encumbrances.’* Section 23 renders the Government’Agent, in the execution of the authority entrusted to, him by theOrdinance, civilly responsible in damages to any person aggrievedat anything that such Agent may do, by reason that no tax wasdue by such person or of any irregularity of proceeding or abuse ofauthority.•
The provisions of Ordinance No. 5 of 1866, which this Ordinancerepealed, were, so far as concerns the’* point under consideration,
( 22 )
1006. substantially the same, and under it the ease of Ranhgmy Mohandi-November 21. ram Mudiyanse (1) was decided. Cayley C.J. said: “ It wasWbndt J. objected that it had not been proved that the seizure and sale hadbeen effected in conformity, with the requirements of the Ordinance;but with regard to this, I think that the recitals in the certificatesmust be taken to be true, unless the contrary is shown.” AndClarence J. added: ” With regard to the regularity of the saledisclosed in the certificates which plaintiffs set up, all must bepresumed rite fuisse acta, in the absence of evidence to the contrary.”In 1888 the case of Weerakoon Appuhamy v. Pabhewardene (2) aroseunder the Ordinance No. 21 of 1867, section 39 of which was substan-tially in the same terms as the provision we are now considering.
The District Judge, finding that there had been no proper seizureof the land as required by the Ordinance, had nonsuited the plaintiff.Burnside C.JM in reversing this judgment, said: ” The questionfor our decision is whether a purchaser at a sale made under theauthority of the Ordinance No. 21 of 1867, who receives the certi-ficate referred to in clause 39, is bound to inquire whether theprovisions of the Ordinance have been duly complied with, or into theregularity or irregularity of such sale.
“I am clearly of opinion that he is not
“ The policy of the Legislature evidently, was that upon a pur-chaser obtaining a certificate his title should be complete againstall the world, and the reason for it is very clear; for, if a purchaser’stitle at a sale made under the Ordinance was liable to be impeachedon the ground of some informality which had taken place, no pur-chaser would be safe.
” It would scarcely be possible for him to satisfy himself that everyrequirement of the Ordinance had been complied with; no onewould be willing to purchase on so precarious a tenure, and the landwould consequently be sacrificed.
“ If the owner of the land has been prejudiced by*a sale not madein conformity with the provisions of the Ordinance, upon whichI express no opinion, he has his remedy against the party in default,if such there be.”
The Commi88ioneT8 of the Loan Board v. Ratwatte (3) arose uponthe provisions of “ The Municipal Councils’ Ordinance, 1877.”Section 154 of that Ordinance, which followed provisions directory. of the. steps necessary for a sale for default of paying taxes, enactedas follows: —
” If land or other immovable property be sold under the ^warrant,a certificate in substantially the form contained in the schedule F
(1) (1880) 3 S. C. G. 103.(2) (1883) 5 S. C. C. 150. ‘
. (3) .(1892) 2 C. L. R. 111.
( 23 )
hereunto annexed, signed by the Chairman, shall be sufficient tovest the property in the purchaser free from all encumbrances. ”
Burnside C.J. said (p. 216): ” As a general proposition it is safeto say that a certificate of sale in the form contained in schedule Fwould be prima facie evidence that everything had been legallydone leading up to such certificate, for the purpose of vesting theproperty embraced by it in the purchaser. Omnia presumunturrite esse acta, and the person challenging the certificate would havethe burthen of establishing the contrary. In this case the defen-dant has produced with and pleaded as part of his answer a certifi-cate which upon the face of it recites that the sale of the propertytook place under ‘ a warrant of distress issued in conformity withthe Ordinance, ’ and apart from the distinct traverses of the plain-tiffs at the close of the plaintiffs’ case, the defendant could haverelied on his certificate as sufficient to show good title for the rentsand profits of the land without going into the details how thatcertificate had been obtained. ”
Withers J. expressed himself to the same effect. Lawrie T. up-held the purchaser’s title, but did not deal specifically with thepoint now in hand. It will be observed that the only differencebetween the enactment thus construed and those of the Ordinancesof 1866 and 1867 was that the one used the words:”If land be
sold under the warrant ”—such warrant having been provided forin the earlier sections—while the others said: f< If land be sold fornon-payment, ” the mode of sale having been pointed out in earlierprovisions. The difference, in my opinion, is not one of substance.I shall refer to it again presently.
A different view of the law was taken, for the first time, by BonserC.J. in Madduma Banda v. Appuruwa (1) in construing the verysection 22 which is now before us. The certificate there relied uponwas defective, and it was therefore not necessary to decide thepoint, but the learned Chief Justice expressed the opinion that themere production of the certificates did not dispense with proof thatthe duty was in arrear and that a sale took place in accordance withthe Ordinance. The vesting (he said) was expressed by the Ordi-nance to be “ subject to the condition that property be sold fornon-payment of duty ”, and he was inclined to think that its onlyeffect was to dispense with a notarial conveyance, and to providethat the purchaser shall get a title free from encumbrance. Thelearned Judge added that if it had been intended to provide that thecertificate should be evidence, either prima facie or Conclusive,of fche# facts therein stated, it would have been easy to have so
(1) (1895) 6 N. L. R. 267.
1906.
November 28vWendt Jv
( 24 )
1906.
.November 28.Wbtot J.
enacted. Withers J., who took part in the decision oi this case,merely expressed concurrence in the result. Bonser C.J. reiteratedhis view in C.R., Galle, 100 (1), and it was followed by Browne A.J.in Nevethehamy v. Don Andris (2). In a footnote to the report ofMadduma Banda v. Appuruwa it is stated that that case wasfollowed by Layard C.j. and myself in D.G., Galle, 5-652 (8), butthe judgments in the latter case show that neither of us expressedany opinion upon the point—the holder of the certificate havingtaken upon himself the onus of proving due seizure and sale, andhaving in the opinion of the District Judge (of which we approved)duly discharged that onus. In D.C., Batticaloa, 1,317 (4), Lawrie J.expressed the opinion that a certificate of sale (in that case onegranted under the Ordinance of 1867) could not even be impeachedby proof that the tax for non-payment of which the sale took placewas not due—no more than a Fiscal’s sale could be avoided by•evidence that the debt decreed by the judgment was not due.The judgments in the case do not, mention the point now before•us; it appears to have been assumed. In C.R., Galle, 1,040. (5)upon which the learned District Judge bases the judgment nowunder appeal, the certificate was one granted under the Ordinanceof 1878. It was admitted that the land was liable to the tax, andplaintiff led some evidence to show that the owners had beer enteredm a list o£ defaulters, and that there had been a seizure, followedafter the proper interval by a sale, but the Court of Bequests heldthat plaintiff was bound to prove default of payment by the ownersand dismissed the action. Sir Archibald Lawrie cited with approvalthe opinions of the Judges in Ranhamy Mohandiram v. Mudiyanseand Weerakoon Appuhamy v. Pabhewardene, which I have quotedabove, and which he said did not.appear to have been laid beforethe Court in Madduma Banda v. Appuruwa and Nevethehamy v. DonAndris; and he also pointed out that in the latter cases there hadbeen only a ” mere ” production of the certificate, without anyevidence whatever. He added:” I must however say that I think
the presumption in favour of official acts was not fully consideredin those cases. ” He gave judgment for the plaintiff. In D. C.Anuradhapura, 437 (6), the certificate was one issued under section58 of the Ordinance No. 23 of 1889, the terms of which differ materi-ally from those construed by Bonser C.J., inasmuch as nothingis said, in the preliminary words, as to a sale for non-payment ofanything, the words being “ if land be sold. ” Layard C.J., while 1
(1) 8. C. Min., Match 9, 1898.(4) 8. C. Min., July 21, 1896.
4 N. L, R. 248.(6) 8. C. Min., January 15, 1901.
(8) 8. (7. Min., June 9, 1903.■ (6) 8. C: Min., October 16, 1)05.
( 25 )
regarding the. decisions under the Paddy Tax Ordinance as appli- 1906.cable, held also that there v/as evidence of substantial irregularities November 2^which tended to vitiate the sale. I concurred (without giving a Wkndxseparate judgment) in holding that the plaintiff could not succeed,and in giving him leave to withdraw from the action.
It will thus be seen that besides the uniform series of olderdecisions in pari materia t there is the express authority of Lawrie
C.J. in favour of the view that the Court will presume that thesteps antecedent to sale have been duly taken, while on the otherside is the opinion of Bonser C.J. and Browne A.J. If the matter,had to be adjudged according to the weight of judicial authoritythe scale must incline in favour of the certificates. The EnglishLaw of Evidence, under which Madduma Banda v. Appurutva wasdecided, raised a presumption in favour of the due performance-of official acts, and our Evidence Ordinance, section 114, does not,.
think, go beyond the English Law. It enacts that the Court maypresume the existence of any fact which it thinks likely to havehappened, regard being had to the common course of natural events,human conduct, and public and private business in their relationto the facts of the* particular case, and enumerates among matterswhich may be presumed (illustration e) “ that judical and officialacts have been regularly done. M A sale under the Paddy TaxOrdinance is distinctly an official act done by the GovernmentAgent in recovering a tax due to the Crown. The view of Bonser
J. was that the clause in section 22 introduced by the word “ if “constituted a condition precedent to the certificate vesting, the pro-perty in the purchaser—with due deference to the very highauthority of that learned Judge, I cannot take the same view. Itwould have been the proper view if (say) the section had run thus:
“If all the hereinbefore prescribed steps preparatory to salehave been duly taken and immovable property sold, “ <frc. The-section does not* even add, after the word “ sold “ the words “ inmanner hereinbefore prescribed. ’’ It merely says: “if propertybe sold for non-payment. *’ If then it be even necessary to showthere was in fact a sale for non-pajment, why should the purchaserbe required to go further and show that in fact there had been anon-payment, and further still, that the tax unpaid had beenjustly due ? These are matters which it would be very difficultif not impossible for an intending purchaser to satisfy himself aboutbefore the sale, or to prove when his title is disputed long after thesale. He is entitled to rely, when he bids and buys, on the pre-sumptipn omnia rite esse acta. Appellants’ counsel cited the-statement in Ameer Ali and Woodrofie’s work on Evidence, in the-
( 26 )
1906. note to illustration (e) to the effect that under section 114 no pre-N.ovember 28. gumption will .be made in favour of the existence of a conditionWendt J. precedent to the attaching of a liability which-it is sought to enforce.
. The cases on which that dictum is founded make clear what is meant.They were actions to recover cesses due in respect of land> on thefooting of an assessment made under a statute. The statuteprovided that where the assessing authority had made its assessmentnotice thereof should be served upon the landowner to enablehim to object to it if so advised, and a procedure was provided for.dealing with the objection. The Courts held that the assessmentwas not conclusive upon the landowner until after the notice, andthat as the actions were based on the conclusiveness of the assess-ment, the plaintiffs must show that the notice had been served—that being a condition precedent to the liability. Note, that therewas no question as to the regularity of the assessment itself, but ofsomething which was to follow it. Had there been such a question,
I venture to think the presumption omnia presumuntur w’ould havebeen given effect to in favour of the public body which. made theassessment. And so indeed it was held in one of the cases justmentioned, Municipality of Sholapur v. Sholapur Spinning andWeaving Co. (1), where the Court presumed that the notice whichthe-law required to be given to all the Commissioners of the Munichpality of the meeting for resolving upon the levy of a cess had beenduly given. In the cases cited by appellants relating to the sale ofpatni tallugs under regulation VIII. of 1819, the sales were notsales conducted by any public officer or authority, but by theZemindar for his own private benefit, and the giving of the notices(the due service of which the Court was asked to presume) was inno sense an official act.
I think, therefore, that the Court was entitled to presume that thefacts stated in plaintiff’s certificate were true, anfl that the sale’to him was regularly carried out. The Court is, however, notbound to presume that in every case, and would be entitled to callfor proof if there be anything in the circumstances which arousedits suspicion or suggested the probability that there was a departurefrom the regular and proper course of business in the particular case.Section 114 of the Evidence Ordinance itself provides that An theapplication of the maxims set out in the illustrations such circum-stances should be taken into account. The presumption havingbeen rightly raised, there was nothing to rebut it. I see no reasonfor giving the defendants another opportunity of calling evidence
(1) /. h. R. 20 Bom. 732.
( 27 )
to rebut it. *L agree with my Lord and my brother Wood Benton, 1906.whose judgments I have had the advantage of perusing, in holding November 28.that the appeal should be dismissed with costs.Wendt J,
Wood Benton* J.—
I agree. Numerous authorities were cited to us by the appellants’counsel with the view of showing that no presumption arises infavour of conditions precedent having been complied with [cf. Maha-rajah of Burdwa/n v. Tarasundari Debi (1); Mohamed Zamir v. AbdulHakim (2); Hurro Doyal Roy Ghowdry v. Mahomed Gazi Chowdhry(3)]; and it is on the same ground that the dictum of Bonser C.J.in Madduma Banda v. Appuruwa (4), followed by Browne J. inNevethehamy v. Don Andris (5), rests. But, before this principlebecomes applicable, we must be satisfied that section 22 of OrdinanceNo. 11 of 1878 enacted a condition precedent. I have come to theconclusion that it did not, and that, therefore, the maxim omniarite esse acta presumwntur—embodied in effect in section 114 (e) ofthe Evidence Ordinance (No. 14 of 1895), holds good. The Indiancases above cited are clearly distinguishable on the facts from thepresent case. They deal with sales for arrears of rent by a Zemindarand not with sales bv a public officer for default in payment of atax. And, in the next place, under the Bengal Begulation VIIIof 1819, on which they turn, the observance of certain prescribedforms was by necessary implication from the language of theregulation itself an essential preliminary to the validity of the sale,and the Zemindar was made “ exclusively answerable ” for theirbeing complied with. There is nothing in Ordinance No. 11 of1878 which at all corresponds to these latter provisions, and I donot see that either section 22 or section 18 to which Browne ,T.referred in Nevethehamy v. Andris displaces section 114 (e) of theEvidence Ordinance. The balance of convenience is certainly infavour of our present decision. Indeed the mere fact that theappellants’ construction of section 22 of the Ordinance of 1878 wouldthrow on the purchaser the burden of proving not only the regularitybut also the bona fides of the sale, to which the statutory certificaterelates, has gone far to convince me of its unsoundness.
Appeal dismissed.
♦
(188&) I.L.R. 9 Cat 619, at page 624. e3i Q891) /. L. R. 19 Cat. 699.
(1885) I. L. R. 12 Cal 67.(4) (1895) 6 N. L. R. 267.
(5) (1898) 4 N. L. R. 248.