LEBBE v. UMMA

047-SLLR-SLLR-1999-V-3-LEBBE-v.-UMMA.pdf


CA
Lebbe v. Umma
367
LEBBE
v.UMMA
COURT OF APPEAL.
WEERASEKERA, J„
WIGNESWARAN, J.
CA NO. 42/95 (F).
DC KALMUNAI NO. 1604/L.
OCTOBER 16, 1997.
Land Development Ordinance, S. 2, s. 161, s. 162 – Permit holder -Gift – Transfer to third party – Written consent of Government Agent priorto transfer – Prescriptive title – Evidence Ordinance, s. 115 – Estoppel -Caveat Emptor.
The plaintiff-respondent became entitled to the land on a gift from his father -original Permit-Holder – approved by the State. Thereafter, he executed a con-ditional transfer but the defendant-appellant refused to retransfer the property backto him. It was contended by the plaintiff-respondent that since written consentof the Government Agent had not been obtained prior to the execution of theDeed of Transfer the said deed was invalid and sought an order directing thedefendant-respondent to retranser the land back to him. The defendant-appellantpleaded that the plaintiff-respondent is estopped from claiming any reliefs andfurther pleaded that he has prescribed to the land in question. The District Courtheld in favour of the plaintiff-respondent.
Held:
The Deed of Transfer was executed contrary to law and therefore of noeffect in law being null and void.
Defendant-appellant's long possession does not give him any prescriptiverights – S. 161.
Since the Deed of transfer was ab-initio void, the defendant-appellant isnot entitled to get the benefit of the equitable principle of estoppel.
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[1999] 3 Sri L.R.
Even if the plaintiff-respondent committed a fraud he could not be calledupon to give title to something over which he had no right of alienation.
APPEAL from the judgment of the District Court of Kalmunai.
Cases referred to:
Ranasinghe v. Silva – 78 NLR 500.
Nanayakkara v. Jayasooriya – [1989] 1 Sri L.R. 366.
Nizam Kariappar with T. L. A. Munal and M. C. M. Nawas for defendant-appellant.Respondent absent and unrepresented.
Cur. adv. vult.
February 26, 1998.
WIGNESWARAN, J.
By amended plaint dated 04.10.1989 the plaintiff-respondent prayed
for –
a declaration that deed No. 1065 dated 10.10.1974 attested byM. H. M. Jaufer, Notary Public of Batticaloa, by which theplaintiff-respondent himself had transferred a land to thedefendant-appellant, was invalid or in the alternative that itcreated a trust in his favour.
for an order directing the defendant-appellant to acceptRs. 10,000 and retransfer the land to the plaintiff-respondent.
damages at Rs. 200 per cultivation season and
costs.
The plaintiff-respondent's position was that his father had been granted
a permit in respect of the land in question under the Land Development
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Lebbe v. Umma (Wigneswaran, J.)
369
Ordinance and that he was entitled to the said land on a gift fromhis father approved by the State. Since, he borrowed a sum ofRs. 10,000 in 1974 from the defendant-appellant he had executedthe above said deed No. 1065 and had agreed to pay back the sumof Rs. 10,000 and obtain a retransfer. Meanwhile, the defendant-appellant was to cultivate the said land and obtain the incometherefrom in lieu of interest. When he arranged to pay back the sumof Rs. 10,000 the defendant-appellant had refused to accept themoney nor consent to retransfer.
The basis of the plaintiff-respondent's claim for a declaration wasthat since written consent of the Government Agent in terms of thelaw had not been obtained prior to the execution of Deed of TransferNo. 1065 the said deed was invalid and no title therefore could havepassed to the defendant-appellant.
The defendant-appellant on the other hand pleaded that a validtransfer took place on deed No. 1065 for valid consideration and thatthe plaintiff-respondent in any event was estopped from claiming anyreliefs since he himself had executed the deed. It was also pleadedthat the plaintiff-respondent could not derive benefits from his ownfraudulent acts if the deed was executed contrary to law. Also theclaim was said to be prescribed.
The Additional District Judge, Kalmunai, after trial, by judgmentdated 22.02.1995 held in favour of the plaintiff-respondent.
This is an appeal from the said judgment. Meanwhile, the plaintiff-respondent having died his widow has been substituted in his place.Despite notice neither the substituted plaintiff-respondent nor herAttorney-at-law were present in Court on the date of hearing.
Counsel for the defendant-appellant argued that –
(i) deed No. 1065 was valid in law and the defendant-appellanthad been in possession of the land from the time of executionof the said deed.
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the act of executing the said deed of transfer estopped theplaintiff-respondent from now seeking to set it aside.
the action was prescribed since it was not brought within 3 yearsof execution (Ranasinghe v. Sf/va01 – referred to).
the plaintiff-respondent having himself violated the conditionlaid down in the permit granted under the Land DevelopmentOrdinance cannot now get the benefit of his fraudulent act.
These submissions would now be examined.
(1) Is deed No. 1065 valid in law?
Covenant 5 of P1 (Crown grant) states as follows: "The lesseeand his aforewritten shall not sublet, sell, donate, mortgage or oth-erwise dispose of or deal with his interest in this lease or any portionthereof, without the written consent of the lessor or of the GovernmentAgent, Eastern Province, for the time being acting for and on behalfof the lessor and every such sublease, sale, donation or mortgagewithout such consent shall be absolutely void".
This was a 99-year Crown lease (vide part II of the schedule toP1). The original lessee assigned ail his right, title and interests tothe father of the plaintiff-respondent with the written consent of theVanniya Mudaliyar dated 26.10.1931 of Sammanthurai. The plaintiff-respondent's father transferred the said land to his said son with thewritten permission of the Government Agent, Batticaloa District, dated21.06.1956. The execution of deed No. 1065 did not take place withsuch written permission obtained from the authorities.
Section 162 of the Land Development Ordinance amended by ActNo. 16 of 1969 states as follows:
"162 (1) A notary shall not attest any instrument operating as adisposition of a holding which contravenes the provisionsof this Ordinance.
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(2) An instrument executed or attested in contravention of theprovisions of this section shall be null and void."
"Holding" in this section means land alienated by grant under theLand Development Ordinance and includes any part thereof or interesttherein (vide section 2 of the Land Development Ordinance).
Thus, deed No. 1065 was clearly executed contrary to law andtherefore of no effect in law being null and void (vide Nanayakkarav. Jayasooriya and Another).
With regard to the defendant-appellant's long possession, law doesnot give him any more rights because of such possession since section161 of the Land Development Ordinance states as follows:
"No person shall, by possession of any land alienated on apermit, acquire any prescriptive title thereto against any otherperson or against the State."
Thus, the submission that deed No. 1065 is valid under the lawcannot be accepted.
(2) Estoppel
Section 115 of the Evidence Ordinance states as follows:
"115. When one person has by his declaration, act, or omissionintentionally caused or permitted another person to believe a thingto be true and to act upon such belief, neither he nor his rep-resentative shall be allowed in any suit or proceeding betweenhimself and such person or his representative to deny the truthof that thing."
In the instant case there was no intentional nor false declarationnor similar act or omission which made the defendant-appellant believethat the land belonged to the plaintiff-respondent while in fact it didnot. The title was with the plaintiff-respondent as a lessee of the State.
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But, he was prohibited by law from alienating his rights under thepermit granted under the Land Development Ordinance. In cross-examination the defendant-appellant at page 69 of the brief has saidthat he had seen the previous title deed No. 2116 predecessor tothe impugned deed No. 1065 and had noticed that permission fromgovernment was essential for the due execution of such deed. Hisevidence thereafter gives the impression that despite such prohibitionon alienation he had nevertheless purchased many lands. Thus, thedefendant-appellant seems to have gone into this transaction with fullknowledge of the nature of plaintiff-respondent's rights and was notin any way fraudulently misled by the plaintiff-respondent.
In any event it must be noted that “caveat emptor" is the maximthat applies and not "caveat vendor". The defendant-appellant had triedto make out in his evidence that the vendor was responsible for anywrong he may have committed in transgressing the express provisionsof the Land Development Ordinance, (vide page 68 of the brief). Ourlaw expected the defendant-appellant to have checked title beforeparting with his money.
Furthermore, since deed No. 1065 was ab-initio void, the defendant-appellant is not entitled to get the benefit of the equitable principleof estoppel. In other words even if the plaintiff-respondent committedan intentional fraud he cannot thereby be forced to give to thedefendant-appellant what he could not give. It is only in a case wherehe was capable of giving a benefit either immediately or at a futuredate that he could be brought within the ambit of estoppel. Not wherehe could not transfer any benefit at anytime without the interventionof a third party over whom he had no control. Thus, the principleof estoppel would not apply to the facts of this case.
Does prescription apply?
As pointed out earlier section 161 of the Land DevelopmentOrdinance states as follows:
"No person shall, by possession of any land alienated on apermit, acquire any prescriptive title thereto against any otherperson or against the State.”
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Lebbe v. Umma (Wigneswaran, J.)
373
Even by long possession land alienated on a permit cannot givetitle to the person who possessed it without a proper alienation inhis favour in terms of the provisions of the Land DevelopmentOrdinance. Ranasinghe v. Silva (supra) would, therefore, have nobearing to the facts of this case.
Could the plaintiff get the benefit of his own fraudulent act?
As pointed out earlier there was no fraud involved in this caseinter se. Out of a necessity for money the plaintiff-respondent hadtransferred his Land Development Ordinance permit land to the de-fendant-appellant who seems to have knowingly purchased it withoutobtaining permission from the relevant authorities. Such transfer wasprohibited by law. In fact, a notary who knowingly attested suchtransfer deed is guilty of a punishable offence under section 163 ofthe Land Development Ordinance. The transaction appears to havebeen a usufructuary mortgage camouflaged as a transfer since thedefendant-appellant wanted it that way as a security for his money.
Even if the plaintiff-respondent committed a fraud he could not becalled upon to give title to something over which he had no right ofalienation. Not to grant him any relief would mean legitimising an illegaltransaction. He could of course be committed to make good what hehad benefited from the defendant-appellant.
The learned Additional District Judge, Kalmunai, has thereforecome to a correct conclusion in his judgment dated 22.02.95. Since,the defendant-appellant has had the benefit of possessing the landand receiving the income therefrom in lieu of interest upto date ofjudgment, the learned Additional District Judge found that only a sumof Rs. 10,000 need be paid by the plaintiff-respondent to obtain aretransfer. The learned Additional District Judge for good reason hasrefused to grant damages and presumably costs too to the plaintiff-respondent. We, therefore, confirm the judgment dated 22.02.1995 ofthe learned Additional District Judge of Kalmunai and make order thaton the plaintiff depositing a sum of rupees ten thousand only
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(Rs. 10,000) to the credit of this case the defendant-appellant mustwithin one month of such deposit at the expense of the plaintiff-respondent retransfer the land in question to the plaintiff-respondent.If the defendant-appellant fails to so retransfer, the registrar of theDistrict Court, Kalmunai, is hereby authorised to retransfer the landin question to the plaintiff-respondent at the expense of the plaintiff-respondent. After the deed in favour of the plaintiff-respondent isexecuted either by the defendant-appellant or the registrar as the casemay be and peaceful vacant possession is handed over to the plaintiff-respondent, the defendant-appellant is entitled to withdraw the sumof Rs. 10,000 deposited to the credit of this case.
If peaceful vacant possession is not granted by the defendant-appellant within one month of the deposit of rupees ten thousand(Rs. 10,000), the plaintiff-respondent after execution of the deed inhis favour by the registrar as above said would be entitled to takeout writ of possession together with writ of execution for the expensesinvolved in obtaining the right of possession. Thereafter, the defendant-appellant would be entitled to withdraw the sum of rupees ten thousand(Rs. 10,000) but only after noticing the plaintiff-respondent who shallbe heard by Court if necessary. There shall be no costs of this appealpayable.
WEERASEKERA, J. – I agree.
Appeal dismissed.