077-NLR-NLR-V-50-MANOMANI-Appellant-and-VELUPILLAI-et-al.-Respondents.pdf
CANEKTCRATNE J.—JManomani v. VeluptHai
289
1949Present : Canekeratne and Dias JJ.
MANOMANI, Appellant, and VELUPILLAI et al.,Respondents
S. C. 177—D. C. Point Pedro, 2,339
Sale in execution—Decree without jurisdiction—Summons not served ondefendant—Bona fide purchaser at sale—No rights pass to purchaser.
A decree against a defendant on whom summons has not been served isvoid and no rights can pass to a purchaser at an e-xecutiqn sale undersuch decree even if such purchase was bona fide and without notice.
Wijeratne v. Mendis Appit (1946) 47 N. L. R. 393 and Appuhamy v.Thailamtnal (1947) 48 N. L. R. 110 distinguished.
Appeal from a judgment of the District Judge, Point Pedro.
A. Hayley, K.G., with V. Arulambalam, for plaintiff appellant.
E. B. W ikramanayake, K.C., with H. W. Tambiah, for defendantrespondent.
Cur. adv. vult.
February 21, 1949. Cajstekbratne J.—
This is an appeal by the plaintiff from a judgment dismissing her actionin respect of a half share of the land called Vattirampulee. It appearsthat the plaintiff who was married about 1903, according to customaryrites, to one Sundrampillai was employed as a conductor at AttabageEstate, Gampola, lived there with her husband for some time. OnOctober 10, 1907, she purchased this land by deed P 1, with her dowrymoney. There was a usufructuary mortgage on the land at the time ofher purchase and a brother of Sundrampillai obtained an assignment ofthis mortgage. The 2nd defendant contends that the share claimedby the plaintiff passed to one K. Namasivayam, who purchased theland at a sale, in execution of a judgment entered against K. Sundram-pillai and the plaintiff. On March 17, 1915, the purchaser conveyedthe land to his mother Teivanapillai by D 5 and she by deed D 6 gifted itto her son Sundaram’s daughter Sundaramani, and she by D 2, datedNovember 26, 1944, sold certain property including this land to thesecond defendant.
The two principal points that arose for decision- at the trial were,whether the judgment entered in the action bound the plaintiff, andwhether the 2nd defendant had acquired a title by prescription. Threewitnesses were called on the plaintiff’s side, the plaintiff, K. Namasivayam,and the plaintiff’s mother ; the only witness who gave evidence for thedefendant was the Proctor, appearing for the defendants, who is a brotherof the-2nd defendant. It is a matter of surprise that this gentleman whoadvised the 2nd defendant in the purchase of this property and whopresumably was aware of the importance of his evidence should haveappeared for her. Such is not, I think, the practice of the profession.
13—n
1J. N. A 88962-1,044 f5/40)
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CA2SJEKERAT3STE J.—hdanomani t>. VelwpiUai
The evidence of the plaintiff is that she left Attabage Estate on November6, 1912, with one Gunasekere who was the dispenser on the estate, cameto Colombo, got on board ship the same day and left for Malaya wherethey lived together for some years during which time she had no communi-cation with her parents. In 1927 she returned to Ceylon with Gunasekera;she stayed a week at her parents’ residence, then went to Matale,Gunasekere’s native place, and on August 5, 1927, a marriage wassolemnised between the two by the Registrar of Marriages D 11 ; aftera short time they returned to Malaya. In 1929 Gunasekere died andafter his estate had been administered she returned to Ceylon in March,1931.
Sundrampillai preferred a charge of theft against the plaintiff onNovember 13, 1912, citing her as M. Manomani of Colombo. OnDecember 23 the case was struck off the list, as there was no clue asregards the accused. The next step was taken by K. Namasivayam, abrother of Sundrampillai. On February, 1913, he instituted an actionagainst EL. SundaTampillai (first defendant) and wife Manomani (seconddefendant) of Puloly West, presently of Attabage Estate, Gampola(caption of P 5). The parents of the plaintiff thinking “ that Sundram-pillai might try to appropriate their daughter’s property ” tried tointervene in the action; certain notices were served on them but ultimatelytheir application was disallowed, (P 6 and P 7 of September, 1913, andP 8 and P 9 of October, 1913). No evidence was given by Namasivayamat the hearing, but Sundrampillai appears to have given evidence onCommission at Gampola, P 13a. Decree was entered on November 28,1913, the two defendants being ordered to pay the plaintiff the sum ofRs. 200 with interest, the description given in the caption is the same asthat in P 5. The decree part of P 13a, appears to be a joint decree ;as a general rule, each defendant would be liable to pay a proportionatepart of the amount decreed. Counsel for the respondent attempted toargue that there was a valid decree against Sundrampillai for the entiresum and that the entire property could be sold in execution of the decreeagainst the husband. The point was not taken in the answer nor was anissue framed on it. It would be inequitable to allow the respondent toargue the point in appeal, especially as it depends on disputed facts.We declined to accede to the request of Counsel to send the case backfor this purpose, as in the absence of the record in the case, it would beextending an invitation for obtaining evidence inconsistent with whathas already been recorded. It is worth mentioning that at the time ofthe judgment in the ease the law was, that a property acquired withmoney provided out of the funds which formed part of the separateproperty of a spouse remained the separate property of the parties.
About December 9,1913, a prosecution was launched against
Sundrampillai, at the instance of the plaintiff’s father ; he was chargedwith having contracted a marriage with one Sivappa in April, 1913.Fortunately for the accused the Magistrate discharged him ; he seemedto take the view that the evidence did not show that the plaintiff wasalive at the time of the marriage. Writ of execution was issued onNovember 19, 1914, directing the seizure of the property of Sundrampillaiand his wife Manomani of Puloly West presently at Attabage Estate,
CANjilJlliiRATNi!! J.—Manomani v. Velupillai
291
Gampola. The Fiscal reported on January 15, 1915, that no demand ofthe amount of the writ was made from the plaintiff as his officer wasunable to find where she was living and the plaintiff in the action statedthat he does not know where she lives, P 10 report. P 11 dated January25, 1915, sent by the Fiscal’s Officer shows that the place of residenceof the second defendant, i.e., the present plaintiff, was not known. Theland in question was sold and the purchaser, K. Namasivayam, obtainedFiscal’s transfer, D 3.
There is apart from the documents produced by the parties only thetestimony given by the plaintiff and Namasivayam. There is nocontrasted evidence given by the defence. The non-acceptance of theplaintiff’s testimony is due to an inference from other conclusionsreached in the Judge’s mind rather than from an unfavourable view ofher veracity as a witness. The reason adduced by the learned Judge isthat in answer to the question in cage 3 of D 11 she described herselfas a spinster. It should be borne in mind that at this time, August 5,1927, she found that Sundrampillai had married another, Sivappa, andhad children by her. She would have become aware while staying withher parents in 1927 that the charge preferred against Sundrampillai forhaving contracted a marriage with Sivappa in 1913 had been dismissed.-This circumstance perhaps induced her to have “ her relationship withGunasekere legalised ”, as she says, by entering into a marriage with him.The reasons given by the learned Judge are not satisfactory. He hasalso misdirected himself by taking into consideration statements found inD 1, namely, that no reference was made by her in action No. 1,213, D.C.Jaffna, to her marriage. This was an action for recovery of money towhich she became entitled, as the widow of Gunasekere, from oneManicam who seems to have been trusted by the deceased and to whomshe entrusted a cheque received as insurance money. It was notnecessary for the purposes of her case to refer to a previous marriage ;Sundrampillai’s name was not referred to in the examination-in-chief, buta question appears to have been put in cross-examination about him andshe appears to have answered that question. He has misdirected himselffurther by taking into consideration a passage in I) 1 tending to show, ifthe extract is correct, that she returned in 1920. Counsel for the defen-dants desired to show that she did not make any mention of her previousmarriage and tendered D 1 instead of the relevant portion, for thispurpose. Counsel did not put a single question to show that she hadcome to Ceylon in • 1920 ; his silence is an important circumstance inconnection with this matter. Her statement in chief that she returnedonly in 1927 stands uncontradicted. Complaint may legitimately bemade when a statement made by a witness in another case to whichattention has not been called nor any reference made at the trial is readby, and taken into consideration, by a Judge in assessing the witness’sevidence.
A careful examination of the documents in the case would have revealedthe truth of her story as to her movements during the material time^;instead of making such an examination the learned Judge was led totake a fragmentary view of the case by the value he attached to heranswers in D 11.
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CANEKERATNE J.—JManomani v. VelupiVai
That the plaintiff left the house on Attabage Estate on November 6,1912, and eloped with Gunasekere can hardly be denied. The documen-tary evidence makes it clear that she was not living at this place at thetime of the institution of action No. 1,161. That she did not return tothis place at any time thereafter seems to be borne out by the sameevidence too. That K. Namasivayam, the plaintiff in the action, musthave been aware that the present plaintiff, Manomani, was not at Atta-bage Estate at the time of the institution of the action is made clear bythe affidavit, P 13b. The probabilities are that service of summons onthe plaintiff was directed to the address given in the caption and thatthis summons and the summons on the first defendant were taken to thehouse of Sundrampillai and were received by some person or personstherein. The absence of any change in the caption as relating to theplaintiff in extract P 5 or at any rate in the decree, part of P 13a, stronglysupports this view.
The learned Judge has fallen into an error in thinking that the mort-gagee, Supper, or his assignee was not in possession of the propertyunder the mortgage. At the time of the transfer by Seethavapillai, P 1,the mortgage rights were in existence, the transfer to the plaintiff ismade subject to the payment of the debt due to S. Murugar, there was anobligation placed on her to redeem “ the said otty ” which she did notperform. P 3 recites that the otty mortgage has not been redeemed andthe heirs of the mortgagee assign their rights to K. Kovindapillai inSeptember, 1908. The probabilities too strongly confirm the view thatthese heirs were in possession at the time of the execution of P 1 and tillthe execution of P 3. Has the 2nd defendant given proof, as she wasbound to do, of adverse or independent title ? She did not call hervendor or any of the predecessors in title of the vendor to give evidence.There is no evidence to show that the plaintiff entered into possession ofthe land after her purchase ; her own evidence, which stands uncontra-dicted is that after the assignment Kovindapillai lived on it with hismother, brothers and sisters. Kovindapillai entered into possession inSeptember, 1908, he was in possession at the time of the purchase byTheivanapillai P 5, and he continued to live as before in the premisesthereafter. There is nothing to show that he divested himself of hisrights ; the evidence of Namasivayam tends to the contrary. Having alawful right to possess, one would presume that he continued to possessin the character of a mortgagee.
When the plaintiff came to her native place in 1927, she was entitledto assume that Kovindapillai who was on the premises was still inpossession thereof. The evidence of Namasivayam shows that Kovinda-pillai was living in the premises till his death which took place about1936, about 11 years ago, or as the learned Judge finds about ten yearsago. It is not clear when Savundramma, the vendor to the 2nd defendant,entered into possession. There only remains the statement of theProctor that Savundramma, her parents and brothers were in possessionfrom 1930 ; at one time he said from 1923. There is no finding by thelearned Judge that she entered into possession in 1930 ; she was a daughterof Sundrampillai, and may have been living in the premises with herfather and his brother Kovindapillai. From the fact that the learned
Sachckitfiananthan v. Sivaguru,
293
Judge does not allude to the evidence of this witness it may perhaps beinferred that he was not impressed by his evidence as to “ the entirefacts of the case.” It is not surprising if he did so. The witness betraysan inability to give candid answers to questions ; his conduct on animportant occasion before he became a Proctor does not redound to hiscredit, but perhaps he has lived down the effect of it.
There has not been sufficient evidence to establish a title for prescriptivepossession since the death of Kq vindapillai. Counsel for the respondentreferred to the case of Wijeratne v. Mendis Appu and another1and of Appuhamy and another v. Thailamjnal 2. The latteris undoubtedly a case of a voidable transaction ; the former infer-entially and by reason of the passage quoted from an Indian case showsseems to be of the same kind. In these cases and in the case of Zain-ul-Abdin Khan v. Asghar Ali Khan3, a valid decree which bound the debtorwas in existence at the time of the sale. Thus, in the present case therewas no foundation for the exercise of jurisdiction by the Court of Requestsat Point Pedro against the plaintiff4, who was not in Ceylon at the time ofthe institution of the action ; the decree as against her was void.Whether the idea expressed in the words “ a bona fide purchaser for valuewithout notice ” can appropriately be applied to the second defendant,the wife of a government servant who purchases a land in contraventionof a regulation, may be a question. Sanction for a purchase of land byan employee of the government or by his wife must be obtained beforethe acquisition. The authority entrusted with the right of grantingsanction would require to be satisfied about the title of the vendor.
The appeal is allowed with costs. The plaintiff is declared entitled tothe share claimed, but it must be subject to the rights created by theusufructuary mortgage. If the respondent is entitled to claim compen-sation for any improvements, she may be entitled to assert her rights, ifshe is so advised, in a separate action.
The pronouncing of judgment was de’ayed to enable the parties, asthere was some chance, to settle their dispute.
Dias J.-—I agree.
Appeal allowed.