029-NLR-NLR-V-13-GURUHAMY-v.-SUBASERIS-et-al.pdf
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Present: Mr. Justice Wood Benton and Mr. Justice Grenier.GURUHAMY t>. SUBASEBIS et al.
. D.G. Kurunegala, 3,450.
Sale by a person without title—Vendor subsequently obtaining title—Actionby vendor against vendee in ejectment—Exceptio rei vendit®
Aobtainedaconveyance for aland fromapersonwho bad no
titleand soldit to B. After thesale to B,Aboughttheland from
thereal owner,and sued B fordeclarationoftitle andejectment.
Held, thatBhad an equitableclaim asagainst Atohave the
title conferred upon him upheld.
A
PPEAL from a judgment of the District Judge of Kurunegala(C. S. Vaughan, Esq.). The facts are fully set out in the
judgment of Wood Renton J.-
Bawa, for the appellant.—Elmali acquired no title by virtue ofthe conveyance in favour of her minor daughter Ukkuwa (Ammalv. Kanganyl). Consequently Elmali’s conveyance to Rajabu andRajabu’s conveyance (1889) to appellant and second defendant didnot pass any title to the land to the grantees. The conveyance byappellant to third defendant (1896) was also invalid for the samereason. The appellant had subsequently acquired a valid title in1899 from Ukkuwa’s vendee. The third defendant may possiblyhave a right to get the appellant to execute a new conveyance (DonCaroli8 v. J amis'1), but as the case stands at present the plaintiffmust succeed against both defendants.
De Sampayo, K.C., for the respondents.—Ammal v. Kangany isno doubt a binding authority, and Elmali had consequently no titleto convey. The plaintiff must get judgment against the seconddefendant. But the third defendant con plead the exceptio rei
1 (1910) 13 N. L. It. 65.»(1909) 1 Cur. L. S. 224.
( US )venditee. The plaintiff is estopped from setting up his title as against Mar.17,1910his vendee (Voet 23, 3, Berwick's Voet 542). Without a notarialv
conveyance from plaintiff after he had acquired a valid title, the ^JSubaseriathird defendant may not be able to sue a third party who is inpossession (and who does not claim through the plaintiff) in eject-ment. The third defendant may, however, sue her own vendbr,or set up a plea of estoppel when she is sued by the vendor. DonCarolia v. Jomis does not consider this question, and is thereforeno authority on this point. The case reported in Wendt’s Reports122 appears to indicate that in the case of sales (though not in thecase of donations) the plea of estoppel would apply. Counsel alsocited 1 Nathan 379; De Silva v. Shaik Alt;1 Encyclopedia of theLaws of England, V., 339, “ Estates by Estoppel " and “ Title byEstoppel
Bawa, in reply.—The only estoppel our law recognizes is estoppelin pais. The third defendant is setting up an estoppel by deed,which is not known to our law (TJkku v. Rankin1 2). [Wood RentonJ.: He is pleading estoppel by equity.] If Ordinance No. 7 of 1840is in conflict with an ancient rule of equity, the Ordinance mustprevail. Ordinance No. 7 of 1840 is unambiguous, and the doctrinesof equity stated in Voet cannot supersede the Ordinance. Counselreferred to KadirawelpiUat v. Pina2 De Silva v. Shaik Alt,1Wendt's Reports 122.
Cur. adv. vult.
March 17, 1910. Wood Renton J.—
The plaintiff-appellant claims a declaration of title to, and theejectment of the defendants-respondents from, a land described inthe plaint. The material and admitted facts are these. The landoriginally belonged to one Mudianselage Mudalihamy. By deed ofsale dated September 1, 1873, he transferred it to Ukkuwa, whowas then a minor. By a deed of sale dated June 17, 1885, andduring Ukkuwa's minority, his mother Elmali conveyed the landto Rajabu, who by deed of August 26, 1889, sold it to the appellantand the second defendant-respondent, who were then husband andwife. By a deed of December 21, 1896, the appellant transferred(sold) a half share of the land to his daughter, the third defendant-respondent, who was then a minor. The marriage between theappellant and the second defendant-respondent was dissolved byconsent on September 7, 1899, and they have since lived apart.On August 23, 1899, Ukkuwa transferred the land to one PunchiNayede, who by deed dated September 7, 1899, conveyed it to theappellant.
Acting on the law as it stood prior to the recent decision of aBench of three Judges in Ammal v. Kangany* the learned District
1(1S9S) 1 N. L. R. 228.
2(1908) 11 N.L.R. 219.
9 (1889) 9 S. C. C. 86.*(1910) 13N.L.B.6S.
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Mar. 11,1910 Judge held that, although the deed of September 1, 1873, wasexecuted in favour of TJkkuwa, the latter was only a nominalRbotom 3. vendee, the real purchaser being his mother Elmali, who had everyCuruflaiT] v right to transfer the land to Rajabu. It is clear, and the fact iBSubtueris admitted by Mr. de Sampayo, the respondent’s counsel, that in viewof the decision of the Supreme Court in Animal v. Kangany abovereferred to, these findings cannot be upheld. The District Judgealso held that the appellant was estopped from denying orquestioning the title, not of the second, but of the third defendant-respondent, of whom the former was his co-grantee from Elmali,while he had himself, on the strength of the title acquired fromElmali, disposed of a half share of the land to the latter. Here,again, Mr. de Sampayo conceded that, as between the appellant andthe second defendant-respondent, he could not contend very strenu-ously that any estoppel arose. He argued, however, that the caseof the appellant’s daughter, the third defendant-respondent, stoodin a different position, and that she was entitled to set up, if not anestoppel, at least an equitable claim to have the title, conferred uponher by the appellant himself, upheld. In support of this contentionMr. de Sampayo referred to the following authorities: Voet, bk.SI, c. 3, Berwick’s translation, 542 to 544; Nathan, /., 379; andDe Silva v. Shaik Ali,l Mr. Bawa, on the other hand, contendedthat the case was governed by the decision of His Lordship the ChiefJustice in Don Carolis v. Jamis; 2 that a purchaser of immovableproperty from a vendor, who has no legal title at the time of sale,may, if the vendor subsequently acquire title, have a right to callfor a new conveyance, but that the title does not pass to himwithout a new conveyance.
In my opinion Mr. de Sampayo’s contention is entitled to prevail.It has been held in a long series of decisions, which may be suffi-ciently illustrated by a reference to Ukku v. Dintuwa3 and Gouldv. lnnasitamby,*• that the provisions of Ordinance No. 7 of 1840 arenot to be used as a cover for fraud, or what is tantamount to fraud.I do not think-that there is anything in the decision of Sir JosephHutchinson in Don Carolis v. Jamis2 which can come in conflictwith the principle enunciated in those cases. Mr. Bawa arguedthat the whole law of estoppel in Ceylon is to be found in section 115of the Evidence Ordinance. Equities, however, of the class withwhich I am dealing are not, strictly speaking, estoppels, and theyhave been recognized not only in England, but in India, in spite ofthe existence there of a provision identical with section 115 of ourown Evidence Ordinance (see Municipal Corporation of Bombay v.Secretary of State3).
‘ {MS) 1 N. L. R. US.* {1878) 1 S. C. C. 89.
* (1909) 1 Cur. L. R. 224.* (1904) 9 N. L. R. 111.
* (1904) I. L. R. 29 Rom. 580.
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On the grounds I have stated I would set aside the decree of Mar.17,1910the District Court dismissing the plaintiff-appellant's action, and Wool)declare the appellant entitled to, and to be put in possession of, the RbntokJ.land in suit, save and except the half share transferred to thethird defendant-respondent. The appellant is entitled to the costs Subaeerisof this appeal, and, in view of the fact that the honours of thelitigation are divided, I would leave each side to pay its own costsof the action.
Grenier J.—I concur.
Varied.
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