137-NLR-NLR-V-54-K.-H.-L.-M.-L.-LATIFA-UMMA-Appellant-and-K.-O.-A.-JEMALDEEN-Respondent.pdf
ROSE C.J.—hatifa Umma ®. Jemaldeen
509
1952Present: Rose C.J. and Gratiaen J.K. H. L. M. Li. LATIFA UMMA, Appellant, and K. O. A. JEMALDEEN»
Respondent
S. G. 267—D. G. Kegalle, 5,911
Sale of immovable property—Covenant to -warrant and defend title—Eviction byjudicial process—Failure of vendee to give vendor notice of the legal proceedings—Action by vendee for recovery of purchase price—Claim that vendor had noshadow of tide—Standard of proof required.
Certain immovable property was sold with a covenant to warrant and defendtitle. The vendee, who was subsequently evicted by judicial process by a thirdparty, sought to recover the purchase price from the vendor. He concededthat he had failed to give notice to the vendor of the legal proceedings whichresulted in the eviction, but contended that his vendor had no shadow of titleto the property conveyed and that therefore it would have been superfluousto have noticed him of the proceedings.
Held, that, in order to establish that the vendor had no shadow of title to theproperty conveyed, a very high standard of proof was required. It was notsufficient merely to adduce a situation from which it might be suspected orinferred that the vendor’s title was unsound.
.^^.PPEAL from a judgment of the District Court, Kegalle.
N. E. Weerasooria, Q.C., with W. JD. Gunasekera, for the defendantappellant.
S. J. V. Chelvanayakam, Q.C., with M. 1. M. Haniffa and G. R. Guna-ra’Me, for the plaintiff respondent.
Cur. adv. vult.
August 4, 1952. Rose C.J.—
In this matter the appellant by deed PI dated 8th May, 1946, purportedto sell certain lands to the respondent. It is common ground betweenthe parties that vacant possession was given to the respondent. In due
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ROSE C.T.—LcUifa Umma v. Jemaldeen
course an action was brought against the respondent by a third partywho claimed to be the true owner. It appears that the respondent,without notifying the appellant of his predicament, agreed to judgmentbeing entered against him and thereafter gave up possession of the landto the claimant. He now seeks to recover his purchase money from theappellant on the ground of total failure of consideration.
There is some evidence on the record which would seem to indicatethat oral notice of an informal nature was in fact given to the appellantof the case referred to. Counsel for the respondent, however, stated inthe District Court that he was not basing any claim on a failure to warrantand defend title, and the learned District Judge in his judgment does notadvert to the matter. That being so the appeal was argued before usupon the basis that no notice in fact was given.
The appellant’s position is that to enable a purchaser to maintain anaction of this kind it is necessary that he should have given notice to thevendor of the legal proceedings which resulted in the eviction ; and thatin the absence of such notice a vendor is entitled to ask for the purchaser’saction to be dismissed. The respondent, on the other hand, contendsthat he has satisfied the exception which is referred to in Fernando v.Jayaruardena 1, in that he has shown that his vendor had no shadow ofa title to the property, and that therefore it would have been superfluousto have noticed him of the proceedings.
It is true that there is some evidence on the record which tends to showthat the appellant’s title to the land conveyed in PI is not sound. Inparticular exhibit P9 indicates that in the District Court of KegaUe, therewere administration proceedings in regard to the intestate estate of EnaLebbe, the grandfather of the appellant, in which an inventory of landswas filed, including the lands in suit purported to be sold by PI. Theparties to this application were the heirs of Lebbe, and for that reason didnot include the appellant who according to Muslim Law had no claim to beregarded as an heir. It is evident from the record, however, that at onestage the appellant intervened to file objections by a certain date. In theevent no such objections were filed and presumably the appellant tookno further part in the proceedings, about which no further informationis available in the record of the present case.
While I have some sympathy for the respondent, I consider that he hasfallen short of proving that his vendor had “ no shadow of a title ” to theproperty conveyed. It seems that in order to bring a party within thebenefits of the exception referred to in the above case, a very high standardof proof is required and that it is not sufficient merely to adduce a situationfrom which it might be suspected or inferred that the vendor’s title wasunsound..t
Eor these reasons I am of the opinion that the appeal should be allowedwith costs here and below and the plaintiff’s action dismissed.
Gratiaen J.—I agree.-.
Appeal allowed.
(1896) 2 N. L. R. 309.