M. K. M. POTUHERA, Appellant, and D. B. UKKU MENIKA et al , Respondents

098-NLR-NLR-V-57-M.-K.-M.-POTUHERA-Appellant-and-D.-B.-UKKU-MENIKA-et-al-Respondents.pdf

1955Present : Basnayake, A.C.J., and Weerasooriya, J.
M.K. 31. POTUHERA, Appellant, and D. B. UKKU MEXIKAcl al., Respondents.
-S’. C. 269—D. C. Knrunegala, G,193jM
Vendor and purchaser—Speculative purchase— Express warranty of title—Bight ofpurchaser to claim damages.
"Where a purchaso of land was speculative and the purchaser knew that thetitle of the vendor might be defective—
Held, that tho purchaser, when evicted, was not entitled to claim damagesfrom tho vendor even though the deed of sale contained an express warranty of• title.
jf^-PFEAL front a judgment of the District Court, Ivuruncgala.
II. If. Jayewardenc, Q.C., with D. S. Xcthsinghe and P. Eancisinrjhc, 'for Plaintiff-Appellant.
Xo appearance for Defendants-Eespondents.
Cur. adv. vitlt.
December 5, 1955. Bassayake, A.C.J.—
On deed Xo. 30SS of Gth December, 19-12, attested by C. P. S'enanayake,Xotary Public (hereinafter referred to as Pi), the plaintiff-appellant(hereinafter referred to as the appellant), purchased from the sixdefendants to this action (hcreina fter referred to as the respondents) for asum of one thousand rupees an undivided three-fourth share of all theirrights in live different allotments forming one block of land of a totalextent of about 50 acres or 5 jielas kurakkan sowing extent. The deedwhich is in Sinhalese contained the following warranty according to thetranslation produced by the appellant. The relevant clause in the originalis also set out below :
“We the said vendors for ourscl vc.s, our heirs, executors, andadministrators hereby further covenant to and agree with the saidvendee, his hc-irs, executors, administrators and assigns to confirmthis sale in all manner to warrant and defend this should any disputearise against this and also to execute any deeds, assurances, etc., at theexpense of the said vendee or his heirs, etc. if reasonably requested forthe further confirmation of this sale in respect of the said Premises ”,
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On 30th starch 1943, the appellant instituted a partition action in theDistrict Court of Kurunegala on the ground that the common and un-divided possession of the land was attended with inconvenience and thatit was desirable and expedient that a partition thereof be effected underthe Partition Ordinance. He claimed 3/4 of the land and assigned 1/4to the six defendants named by him as parties to the action. Theapx^ellant valued the land at Es. 2,500 for the purpose of the action.The extent to which the appellant was conversant with the details of thetitle he claimed is shown by the following paragraphs of the plaint (P2)which set out the devolution of title to the land ;
“ 2. Herath Mudiyanselage Mudalihami Korale to an undividedhalf share and Hcrath Mudiyanselage Mutu Menike and Dingiri Menika .to the remaining half share in equal shares were the original absoluteowners and proprietors and in possession of all that allotments of landcalled (here follows a description of the land).
“3. Being so seized and possessed of an undivided half share thereofthe said Mudalihamv Korale died intestate leaving him surviving ashis only heirs-at-law children namely (1) Dingiri Banda and (2) UkkuMenika who succeeded to his estate, which including the said share ofthe said premises was administered.
“ 4. Being so seized and possessed of an undiWded quarter sharethereof the said Mutu Menika died intestate leaving her surviving asher only heirs-at-law her four children namely (1) Kiri Banda- Vidane(2) Punchi Banda (3) Appuhami and (4) Ukku Banda who succeededto her estate which including the said share of the said premises was notliable to be administered.
“ 5. Being so seized and possessed of three undivided quarter sharethereof the said Dingiri Banda and Ukku Menika (referred to in para-graph 3 hereof) and Kiri Banda Vidane, Punchi Banda, Appuhamy andUkku Banda in and by Deed of sale No. 30S3 dated 6th day ofDecember, 1942, sold the same to I. T. M. Kiri Mmliyanse Potuheraalias K. M. Potuhera, the plaintilf abovenamed who thereupon becameentitled thereto and to the possession.
" 6. Being so seized and possessed of an undivided quarter sharethereof the said Dingiri Menika died intestate leaving her survivingas her heir-at-law her child Mutu Menika who died leaving her survivingas her heirs-at-law her children, namely (1) Kalu Banda, (2) Ean-menika, (3) Dingiri Banda, (4) Wimalagnana Thero, (5) Kiri Menikaand (6) Dingiri Menika, the defendants abovenamed who succeededto her estate which including the said share of the said premises wasnot liable to be administered._
“7. All the plantations have been made by the defendants”.
After interlocutory decree had been entered arious claimants, about3S in number, intervened and claimecl the land for themselves to theexclusion of the appellant. After a trial in which the claims ofthe appellant, the defendants, and the intervenient-defendants wereinvestigated, the appellant’s action was dismissed on 8th December, 1949.
In the course of the proceedings of the partition action the appellantnoticed the respondents to warrant and defend his title. They parti-cipated in the proceedings but did not succeed in establishing the title.The appellant did not appeal from the decree dismissing Ins claim in thepartition action because he said lie had no money. Neither did therespondents appeal. Upon the failure of the partition action, theappellant instituted the present action for breach of warranty againstthe respondents, claiming damages in a sum of Rs. 10,000 including thepurchase price of Its. 1,000. Their defence to the claim of damageswas that the appellant purchased the land as a matter of speculationknowing that their title was defective, doubtful, and uncertain. They,however, admitted their liability to return the purchase price.
The appellant’s position is that by questioning the respondents, hisvendors, he satisfied himself that they had title to the land although theyhad no documents of title. These are his very words on this point :
“ Before I purchased this land I investigated the title, but I didnot look for any deeds in the Land Registry. No documents weregiven to me bjr my vendors. I went to Katumtihiwa and made in-quiries from the vendors and satisfied myself that the vendors hadtitle ”.
The version of the respondents was that the appellant himself came andinformed them that they were entitled to the lands in question and offeredto buy them, assuring them that they were entitled to these lands b}paternal inheritance, despite their professing ignorance of that fact.
The learned District Judge has found that the appellant’s purchasewas speculative and that he purchased the lands knowing that the titleof the respondents was defective. He gave the appellant judgment in asum cf Rs. 1,000 being the amount of the purchase price ; but dismissedhis claim for damages.
Learned Counsel for the appellant contended that the dismissal of theclaim for damages is wrong. Ho submitted that the case of Silva v. Silva 1does not hold that a speculative purchaser is not entitled to claim damagesin a case where the vendors have given an express warranty as in thiscase. It is true that the judgments contain no reference to the natureof the deed in question and do not discuss the difference between animplied warranty and an express warranty. It is correct to say thatordinarily a vendor'who fails to warrant and defend the purchaser’s titleis liable to refund the purchase price even if there is no express warrantyof title in the deed of conveyance 2 ; but generally speaking damages donot become payable by the vendor to an evicted purchaser in the case of a
' 22 X. L. Ii. 377.
– Vert Bk. XXI Tit. II s. 32 <0 s. 31 ; Censura Forensis, Bk. IV, Pari /,Ch, XIX, para. I /.
transaction made in good faith unless there is an express warranty inthat behalf . The general propositions.I have stated apply to the saleof a thing such as a definite land or allotment and are subject to a numberof exceptions which do not arise on the facts of this case.
This is a case of the sale of not so much of a thing as of some uncertainclaim which the vendors had in the land. It is sale of some “ doubtfuland uncertain ” right at the instance of the purchaser, who claimed toknow the respondents ’ rights thereto and which the vendors professedto be ignorant of. This class of uncertain and doubtful title is commonlyknown as village title and purchasers of such “ title ” know that they arepurchasing something doubtful and uncertain for as a rule the documentsthat go to support it are unsatisfactory and of doubtful value. The plaintin the partition action bears out the claim of the respondents that it wasthe appellant who represented that they had a claim to the land by in-heritance. That they honestly acted on such representation and executedthe conveyance in favour of the appellant has been established. Thelearned Judge accepts the version of the respondents. In doing so .he says—
“ The second defendant impressed me as an unsophisticated villagerwhile the plaintiff obviously does not belong to the class of cultivators,though he calls himself a cultivator. ”
Xow both according to Yoet and Pothier 3 the vendor is not liableeven to refund the purchase price in a case such as this, where he hasonly professed to sell an incerium juris (a doubtful right) acting in goodfaith, doubting indeed his own right, “ but without the certain knowledgeand consciousness that the thing was another’s ”. In such a case evenan express warranty in the deed or instrument does not make the vendorliable in damages.
In the instant case there are two reasons why the appellant is notentitled to succeed. One is that the respondents only professed to sellan incerlum juris acting in good faith doubting their own right but withoutthe certain knowledge and consciousness that the thing was another’s ;and the other is that it was the appellant who claimed to know the res-pondents’ rights to what they sold. It may reasonabl}' be inferred fromhis studied omission to ask for documents of title and his neglect to searchthe Land Registers that the defects which finally resulted in his evictionmust have been known to the appellant. Those defects he did not makeknown to the vendors. In such a case he is not entitled to damages evenwhen there is an express warranty.’
The appeal is therefore dismissed. …
Weerasooriya, J.—I agree.•
* Voel Bk. XXI, Til. II s. 31.s. 1S7 p. 11G:■'•
Appeal dismissed.