040-NLR-NLR-V-29-LEELAWATHIE-v.-DINGIRI-BANDA.pdf
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Present: Fisher C.J. and Schneider J.LEELAWATHIE v. DINGIBI BANDA.108—D. C. (Inty.) Kegalla, 4,845.
Fiscal's conveyance—Death of purchaser—Application by purchaser frompurchaser—Civil Procedure Code, ss. 282-295.
Where property is sold by a Fiscal under the provisions of theCivil Procedure Code, a person, who has bought the property fromthe purchaser at the Fiscal's sale, is not entitled to ask for a con-veyance.
A
PPEAL from an order refusing the application of the appellantthat a Fiscal’s conveyance be executed in her favour of lands
sold in execution of a decree upon a mortgage bond entered againstthe defendant-respondent. The purchaser, Kirihamy, paid the fullpurchase money, and the sale was confirmed on January, 1919. Theapplicant stated that Kirihamy sold his rights in the land by deedto one Maulana, that the latter died leaving certain heirs; that thoseheirs entered into possession and sold their interests in September,1926, to the appellant. The learned District Judge refused theapplication.
H. V. Perera, for appellant.
Keuneman, for respondent.
September 6, 1927. Schneider J.—
Under a decree upon a mortgage bond an undivided J share of twoallotments of land mortgaged by the defendant in this action weresold by the Fiscal in November, 1918. The purchaser, Kirihamy,paid the full purchase money, and the sale was confirmed in January,1919, upon the application of the decree holder, the plaintiff (not thepurchaser.) No conveyance by the Fiscal was obtained by thepurchaser. In November, 1926, the appellant made an applicationby way of summary procedure by petition and affidavit praying“ that an order be issued to the Fiscal ” to execute a conveyance inher favour of the lands which were sold. The only respondentnamed in the petition was the defendant. The petition statesbaldly that Kirihamy was the purchaser and sold i(his rights in thelands” by a deed to one Maulana; that the latter died leaving certainheirs; and that these heirs “entered into possession” and sold“their interests” in September, 1926, to the appellant.
1927.
( )1927. Summary procedure was the correct procedure to have followed.Schhbtoer See Jaldin v. Nurma.1 But the petition and its supporting affidavitJ. are deficient in several essential particulars. The lands are notLedawathie described by their boundaries. It is not alleged that the purchaserv. Dingiri or Maulana or the appellant has had possession, or that the purchaseBanda money wag paid or the sale confirmed. The dates of the sale by theFiscal and by the purchaser are not given, nor is it disclosed by whatright the heirs of Maulana became entitled to the land. The factsrecited by me in the earlier part of this judgment I gathered fromthe record. The respondent being served with a notice to showcause, stated by affidavit that he had sold and transferred the landsby a certain deed on November 27, 1922, to the second respondentto this appeal. The second respondent, being noticed, stated, alsoby affidavit, that he had purchased the lands in good faith andwithout knowledge of the sale by the Fiscal, and that he was placedin possession by the vendor, and his possession was disputed inSeptember, 1926, by the appellant, whereupon he instituted an actionwhich was then pending. No evidence was produced by any ofthe parties. The District Judge dismissed the application on theground that there was no evidence of possession by the purchaseror hte successors, and also that “advierse interests” had beencreated by the execution of the deed of Bale in favour of the secondrespondent. He followed the case of Fernando v. Nagappa ChettyrThe reasons given by the District Judge are sufficient to sustainhis order, but it was asserted at the argument that no deedswere produced or other evidence led as the respondent's Counselsubmitted the necessary facts. The record does not bear out thisassertion. But it is not necessary to consider the reasons given bythe District Judge, for I would uphold his order for a different reason.I think the application fails because the appellant had no status tomake the application. The group of sections in the Civil ProcedureCode under the head of “Sales of immovable property" (sections282-295) clearly indicate that it is only the purchaser at a sale bythe Fiscal who is entitled to ask for a conveyance. To him, besidesthe decree holder, is given the right to apply for the confirmation ofthe sale after the expiration of the period of thirty days (section 288).In his favour it is directed in section 286 the conveyance is to beexecuted, and to him should be delivered the original of the con-veyance. He alone is mentioned as having the right to obtain anorder for the delivery of possession in the circumstances contem-plated in section 287, although in section 292 the word used is“grantee in the conveyance" in regard to the delivery of possessionby the Fiscal. And for the purposes of obtaining an order to preventthe commission of waste, section 293 enacts that the purchaser, orhis agent or attorney, may make the application. It would appear1 {1892) 1 S. C. R. 187.* {1914) 18 N. L. R. 29.
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accordingly that those sections contemplate no other person thanthe purchaser at the Fiscal's sales " or his agent or attorney."But from the earliest days of the Code, which came into operation inAugust, 1890, this Court had recognized in several cases the rightof the heirs or other legal representative of a deceased purchaser toask for a conveyance. Of these cases I need mention only one,namely, the case of Bastian v. Andris and another,l which is a decisionof a full bench of this Court. It is also held in that case, and alsoin other cases before it, that a conveyance to a purchaser who wasdead did not operate to pass title according to the ordinary generalprinciples of law, and in the absence of any express legislationgiving effect to the passing of title by a conveyance in that form notitle passed under such a conveyance. No case was cited to us, norhave I been able to discover any case in which the question had beenconsidered and decided, whether a purchaser from a purchaser at aFiscal’s sale, or his assignee, was entitled to a conveyance in his favouror not. In the case of Jaldin v. Nurma (supra) already mentioned,Lawrie J. in the course of his judgment expressed the opinion that apurchaser from the purchaser at a Fiscal's sale would have the rightto get a conveyance. But it is mere obiter, as the only questionfor his decision was whether the heirs of the original purchaser werefollowing the correct procedure for obtaining a conveyance. Hedoes not give any reasons for his opinion, nor does he discuss thequestion at all. But Mr. Perera cited an anonymous case decidedby me and Loos A.P.J. in 1919 and quoted in 6 Ceylon WeeklyReporter, p. 208. The facts are not fully set out in my judgment,and the report itself is only a yriat of the judgment. But there arecertain passages in my judgment which suggest that the applicationin that case was made by one of the purchasers from one of the heirsof the deceased purchaser from the Fiscal. But in that case too thequestion was not raised nor considered whether the applicanthad the status to make the application. In view of the opinionexpressed by us at the argument, that the conveyance in this caseshould be in the name of the original purchaser at the Fiscal's sale,Mr. Perera argued that section 286 does not expressly require thatthe application for the conveyance should be made by the purchaser,and that therefore the appellant was entitled to make the applicationfor a conveyance in favour of the original purchaser, and that weshould regard her application as having been made for a conveyancein that form and all'™' the application. When the conveyance isexecuted he argued tha« the benefit of the transfer would enure tothe appellant. He probably had in mind the case of Abraham v.Nonno2 or other decisions to the same effect. It seems to me thatthere are several good reasons why this argument should not beentertained. If it • be entertained, the order of the lower Court
1 (1911) 14 N. L. R. 437.* (1912) IS N. L. R. 302.
1927.
SCKNKIDEB
J.
Leelawathiev. DingiriBanda
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1$27. would have to be reversed upon an issue not raised or tried before it,Schnkider namely, whether the appellant is entitled to claim a conveyancein the name of the original purchaser at the Fiscal’s sale. ThatLeetawaihie purchaser is not a party to these proceedings. It would not beequitable to make an order by which he might be affected behindhis back. Nor is it at present clear to my mind that the benefit ofsuch a conveyance will enure to the appellant, who is a remotepurchaser. I find difficulty in accepting the statement that theappellant has a right to make the application for a conveyance. Iam unable to see what right the appellant has to ask the Court foran order on the Fiscal to execute a conveyance in her favour. Itdoes not seem to me to be a sound argument to contend that becausethe legal representative of a deceased person has been recognizedas entitled to ask for a conveyance therefore a purchaser from adeceased purchaser at a Fiscal’s sale should also be regarded asentitled to that right. The same reasoning is not applicable to bothcases. A. legal representative succeeds to all the rights of a deceasedperson if a heir or administrator by operation of law, if an executorby virtue of the will of the deceased. It would not be equitable todeny to him the exercise of a right which has so devolved on himand which, had the deceased been alive, he would himself have beenentitled to exercise. The position of a purchaser is altogetherdifferent. He has purchased a title from a person who had no titleto sell or right to transfer. The deed in his favour, therefore, isineffectual to convey the title to him, and if the form of the deed besimply a conveyance of title, in pursuance of a contract of sale, theinstrument cannot be regarded as an assignment of the deceasedvendor’s right to claim a conveyance from the Fiscal. In theabsence of some such assignment I fail to understand by what rightsuch a purchaser can claim to be placed in the position of a deceasedpurchaser at a Fiscal’s sale for the purpose of obtaining a conveyancefrom the Fiscal in his own favour. As the deed does not operate topass any interest in the land, he cannot rightly contend that theCourt should intervene to help him to perfect his title, because bythe instrument he has acquired some interest in the property.Even if the deed in his favour contains the usual clause of assuranceof title and a covenant on the part of his vendor that he wouldexecute or procure such other deeds or instruments as may benecessary for the better manifestation of the vendee’s title, eventhen the purchaser would not be entitled to demand a conveyancefrom the Fiscal on the strength of that covenant. The position ofsuclj a purchaser, it seems to me, is identically the same as that ofa purchaser from a person who, at the time of the execution of «hedeed of sale, is not vested with the title to the property but has onlya right to demand from some third person a conveyance of the title.The purchaser in those circumstances would not be entitled to
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demand a conveyance of title from that third person unless therewas some express agreement that he should have that right on the Schneider,part of the third person. The principle underlying the provisionsfor levying execution on the property of a judgment-debtor wouldappear to be that the law vests in the Court for that purpose the right v.^gvrito convey the title of the judgment-debtor and appoints the Fiscalthe agent of the Court for the execution of the conveyance. A saleby the Fiscal is usually conducted upon conditions of sale which areproclaimed before the sal^ takes place. Those conditions usuallyembody the provisions in the Civil Procedure Code that the sale issubject to confirmation by the Court, and that the purchaser, uponpayment of the full purchase money, would be granted a conveyanceof the property by the Fiscal. 1 do not think, nor is it likely, thatthere would be an agreement in those conditions to grant a convey-ance to any person other than the immediate purchaser. A sale bythe Fiscal is a sale by the Court. It is a contract between the Courton the one side and the purchaser on the other. Upon the fulfilmentof the conditions of sale the purchaser would be entitled to havea conveyance granted in his favour. It is a right assignable bycontract and also enforceable by appropriate action. A simpletransfer of the title to the property by a purchaser will not havethe effect of an assignment of that right. But although the right isassignable by contract I think it will always be within the discretionof the Court to refuse to recognize an assignment of the right, andin most instances the Court will act wisely in so refusing. If thepurchaser from the Fiscal is not dead, it seems to me that the Courtwill always be entitled to point to the provisions of the Code and tosay that it would recognize no one but the actual purchaser as theperson entitled to ask for a conveyance.
The position of the appellant is weaker than even that of animmediate purchaser from the purchaser at a Fiscals sale. Thereis apparently no privity of contract between the appellant andKirihamy, the purchaser from the Fiscal, which would enable theappellant to maintain an application in the name of Kirihamy for aFiscal's conveyance. Even if the appellant had an assignment -fromKirihamy of Kirihamy's right to ask for a conveyance it would stillbe within the discretion of the Court to refuse to recognize that rightand to insist upon Kirihamy making the application himself unlessfacts were disclosed which would make it inequitable to do so. Itseems to me that the sections of the Code connected with the convey-ance of title by a Fiscal clearly contemplate a convej ance to theimmediate purchaser, and that it would not be wise to recognize apurchaser from the original purchaser as being also entitled to :*,skfor such a conveyance. It has been held in several cases that themere lapse of time would not debar a, person entitled to ask fromasking for a conveyance from the Fiscal. It is easy to conceive of
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1987.
SOHNKIDEB
J.
Ltdawatitiev. DingiriBanda
a case where a dozen, or more persons might be claiming title to aland through a chain of deeds originating from a deed by which theoriginal purchaser purported to convey title. If a purchaser fromthe original purchaser should be recognized as having a right to askfor a conveyance from the Fiscal, any one of these persons at anydistance of time from the original sale by the Fiscal might claimthe right to ask for an order ,on the Fiscal for a conveyance inhis favour. I do not think that the provisions in the Code wereintended for cases of that kind.
In my opinion the appellant has no right to ask the Court for anorder that the Fiscal should convey the property to her. That isthe only application with which we are now concerned. The DistrictJudge’s order is right, and should be affirmed. I would dismiss theappeal, with costs.
Fisher C.J.—I agree.
Appeal dismissed.