017-SLLR-SLLR-1999-V-2-LALITHA-PADMINI-v.-JAYATUNGA.pdf
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Lalitha Padmini v. Jayatunga
163
LALITHA PADMINI
v.JAYATUNGA
SUPREME COURTAMERASINGHE, J.,
ANANDACOOMARASWAMY, J., ANDGUNAWARDANA, J.
S.C. APPEAL NO. 87/97
A. APPEAL NO. 330/88 (F)
C. COLOMBO NO. 4521/LJANUARY 19, 1998.
Vindicatory suit – Conflicting title deeds – Determination of superior title – Principleof exceptio rei vendita et traditae.
The defendant resisted the action on the basis that the land in suit one roodin extent described in schedule 1 to the plaint was owned by his wife SwarnaJayanthi on a deed of transfer D1 executed in 1959 by the original owner CharlesAppu. At the time of the execution of D1, Charles Appu did not have title to theland as he had executed a conditional transfer of the entirety of the land in favourof one Podi Appuhamy deed P7 of 14. 10. 1957. Podi Appuhamy by deed P8of 15. 5. 1961 retransferred the same to Charles Appu. Thereafter, Charles Appuconveyed the entirety of the land to his wife Charlotte, by deed P3 of19. 7. 1961. Subsequently, Charlotte donated her rights to her daughter theplaintiff. The plaintiff never got possession of the land.
Held:
On the principle exceptio rei vendita et traditae, when Podi Appuhamyretransferred his title to Charles Appu, Charles Appu's title devolved onSwarna Jayanthi by operation of law. As such Charles Appu had nointerests to convey to his wife Charlotte and consequently Charlotte couldnot have conveyed any interests to the plaintiff.
The plaintiff had not established a title superior to that claimed by thedefendant's wife.
APPEAL from the judgment of the Court of Appeal.
L. V. P. Wettasinghe for the plaintiff-appellant.
Daya Guruge for the defendant-respondent.
Cur. adv. vult.
164
Sri Lanka Law Reports
[1999] 2 Sri LR.
April 2. 1998.
ANANDACOOMARASWAMY, J.
This is an appeal from the judgment of the Court of Appeal allowingthe appeal of the defendant. The plaintiff filed an application for SpecialLeave which was granted by this court, on the following question :
“Did deed D1 executed in 1959 convey title after the executionof deed PS in 1961 in favour of the original owner on the principleof exceptio rei vendita et traditae?"
The facts relevant to this appeal are briefly as follows :
Charles Appu was the original owner of the land in extent onerood described in schedule 1 to the plaint. The said Charles Appu.executed a conditional transfer of this entirety to one Podi Appuhamyon deed 106 of 14. 10. 57 (P7) which was retransferred on deed192 of 15. 05. 61 (P8). In the meantime by D1 Charles Apputransferred this land in 1959 to his daughter Swarna Jayanthi (saidto be adopted) and son-in-law Elias Appuhamy. After the said retransfer,Charles Appu conveyed the entirety of the land to his wife Charlotteon deed 3806 of 19.07.61 (P3). Charlotte reserving her life interestby P1 donated her rights to the daughter of Charles and Charlotte,namely Lalitha Padmini the plaintiff in this case. Subsequently by P6Charlotte transferred her life interest too to the plaintiff.
There are two sets of title deeds by which plaintiff and defendant'swife are alleged to have derived title. Admittedly Charles Appudid not have title when he transferred the land to his daughterSwarna Jayanthi, but soon after he derived the title after the retransferon deed No. 192 of 15.05.61 (P8) from Podi Appuhamy toCharles Appu, Charles Appu by deed No. 3806 of 19.07.61(P3) transferred his rights to his wife Charlotte.
The only question is whether defendant's deed of title 9147of 12.07.59 (D1) being prior in time took precedence over deedNo. 3806 of 19.07.61 (P3) by which plaintiff's predecessor Charlottegot title from Charles.
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Lalitha Padmini v. Jayatunga (Anandacoomaraswamy, J.)
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According to Roman Dutch Law principle of exceptio rei venditaet traditae when Podi Appuhamy transferred by P8 his right, titleand interest to Charles, Charles' interest would have by operation oflaw devolved on Swarna Jayanthi presently the wife of Jayatunga.In that instance Charles would have had no interests to conveyto his wife Charlotte and consequently Charlotte the widow couldnot have transferred any interests to Lalitha Padmini theplaintiff. Clearly, therefore the plaintiff's title does not supercedethe title of the wife of the defendant and the plaintiff could notbe said to have established a title superior to that claimed bythe defendant’s wife. Evidence on record shows Lalitha Padminithe plaintiff never got possession of this land. In those circumstancesI am unable to conclude that the plaintiff had in any mannerproved her title to the land by deeds nor prescribed to the land.
It is the contention of learned counsel for the appellant thatdeed of transfer D1 was in fact a gift and the Roman DutchLaw principle of exceptio rei vendita et traditae did not apply todeed D1. This was the view of the learned District Judge too, onthe ground that no consideration passed on deed D1, but I find inthe Notary's attestation in D1 it is clearly stated that considerationwas acknowledged to have been received earlier. The learnedDistrict Judge's evaluation and his conclusion that the deed of transferD1 was a gift is not borne out in any manner either by evidenceor by any legal implication.
I am, therefore, of the view that the plaintiff's action must fail andthe judgment of the learned District Judge must be set aside.I accordingly, affirm the judgment of the Court of Appeal dismissingthe plaintiff's action with costs.
In my view this appeal is frivolous and is dismissed with costsfixed at Rs. 10,500.
AMERASINGHE, J. – I agree.
GUNAWARDANA, J. – I agree.
Appeal dismissed.