Molagoda Kumarihamy and KempiUya.
1943Present: Soertsz and Hearne JJ.
MOLAGODA KUMARIHAMY et al., Appellants, andKEMPITIYA et. al., Respondents.
1—D. C., Kandy, 369.
Res-judicata—Action by donee against third party claiming title from donor
Donor called upon to warrant and defendtitle—Decision in action
between donor and donee given after sale to defendant—Privity.
Where a donee sued a third party for declaration of title to and inejectment of property donated to him and where the defendant in theaction, who claimed title from the dcmor called upon the latter to warrantand defend the title conveyed by him to €he defendant and made the donora party to the action,—
Held, that the decision in an action between the donor and the doneegiven, after the sale to the defendant, in favour of the donor cannot bepleaded as res-judicata by the defendant in the present action.
^^PPEAL from a judgment of the District Judge of Kandy.
The facts appear from the argument.
E. B. Wickremanayake (with him H. W. Jayewardene), for the plaintiffs,appellants.—The first and second defendants cannot plead res-judicatarelying on the decision in case No. 143. In that case, which was institutedin March, 1939, the first and second defendants were not parties; it wasan action between the present plaintiffs and R. D. Kumarihamy (thepresent third defendant). The first and second defendants claim titlefrom a deed of donation granted to them by the third defendant inJune, 1938. They cannot, therefore, be regarded as privies of the thirddefendant. A person can become the privy of another only at a timesubsequent to the date of the judgment which, is pleaded as res-judicata.Further, there is absence of mutuality between the plaintiffs and the-firso and second defendants; if the latter, as plaintiffs, sued the former,as defendants, the judgment in case No. 143 can never be pleaded indefence as res-judicata. See Sita Ram v. Amir Begam et al1; GovindanAssart and another v. Nagayan Ghetty and others2; Gooneratne v. Ebrahim3;Chinniah v. Suppramaniam et al*; Vol. 13 Halsbury’s Laws of England(2nd ed.y, section 454 and 487, Doe v. Martyn5; Gone ha v. Concha6.
The third defendant was not a necessary party, and her appearancedoes not make any difference on the question of res judicata. It is a pleaavailable only to her, and not to the first and second defendants.
V. Perera, K.C. (with him G. V. Ranawake), for the first and seconddefendants, respondents.—The vendor and vendee, donor and donee,are, in our law, placed in contractual relations. A vendor who is broughtin to warrant and defend title is a party in every sense of the word andcan represent the vendee as against third parties. It is the primaryobligation of a vendor to give vacant possession to the purchaser.
i I. L. R. (1886) 8 A.U. 324 at 331.1 (1929) 10 C. L. Rec. 152.
* A.. I. R. (1932) Mad. 238.‘ (1828) 8 B. <fc C. 497 at 524.
» ( 1910) 2 Cur, L. R. 222 at 224.» £. J. (1887) 56 Ch. 257 at 270, 272.
HEARXE J.—Molagoda Kumarihamy and Kempitiya.
Ratwatte v. Dullewe1; -Idenika v. Adakappa ChettyWirawardene et al. v.Ratnaike3. And where the purchaser is sued by a third party he has adouble shield: he can either defend himself, or he can get his vendor toconduct the defence’. See Balasuriya v. Appuhami4-; Hukum, Ghand onRes-Judicata, sections 71,105. The third defendant in the present casecan successfully plead res-judicata, and the first and second defendantscan avail of her success. A fideicommissary is treated as the privy ofthe fiduciary—Charles v. Nonohamy et al.s Similarly the vendee isthe privy of the vendor.
A. Rajapakse for the third defendant, respondent.
E. B. Wickremanayake, in reply.—A vendor cannot represent hisvendee. He merely assists the vendee when called upon to warrantand defend title, and does not convert the action into one against him-self —Punchi Appuhamy v. Rambukpotha0.
A sale should be distinguished from donation. Even assuming thata vendor can sue a trespasser, the law does not give a donor such a right.
Cur. adv. vult.
November 25, 1943. Hearnb J.—
The first and second plaintiffs alleged than It. D. Kumarihamy inconsideration of the marriage of the second plaintiff with the first plaintiffgave as dowry to the first plaintiff by deed 15S3 (1 D7) dated December 1,1927, and February 25, 1935, inter alia the lands described in Schedule Aand by deed 337 (1 D8) dated March 19, 1930, inter alia, the lands describedin Schedule B”. They also alleged that first and second defendants,having no manner of right or title to the properties described in SchedulesA and B, had been in 'wrongful and unlawful possession since June 1938,and prayed for a declaration of title, ejectment and damages. Theplaint was filed on March 28, 1940.
Mr. Gunewardene entered an appearance on behalf of R. D. Kumari-hamy and moved that she be added as a party defendant on the groundthat she had been noticed to warrant and defend the title of the defend-ants. The motion was allowed.
Amongst the issues framed were the following: —
Did R. D. Kumarihamy by 1 D7 and 3 D8 give as dowry to thefirst plaintiff the lands described in Schedules A and B?
If so, are the said deeds irrevocable or are they revocable deeds forsuccour and assistance?
Did R. D. Kumarihamy by deed 994 of June 2, 1938, donate theproperties in dispute except the land No. 5 in Schedule B to the seconddefendant? 8 9
(8) Is the judgment and decree in case No. 143 res-judicata of thequestion whether there was a promise of dowry made by R. D. Kumari-hamy to the plaintiffs?
(9)Is the finding in case No. 143 also res-judicata upon the matters
involved in issues1and 2?
1 (1907) 10 N.L.R. 304.*(1914)17N.L. R.404.
(1913) 17 N.L.R. 93. -5(1923)25N.L. R.233.
(1920) 22 N.L.R. 219.*(1942)43N.L. R.333 at 335.
HEAENT3 3.—Molagoda Kumarihamy and Kem-pitiya.
The Judge answered issues (8) and (9) in the affirmative and thereupondismissed the plaintiffs’ action with costs. They have now appealed.
In case 143, field on March 20, 1939, the plaintiffs alleged that “ It. D.IKumarihamy (the defendant) had promised and agreed with the second(plaintiff that in consideration of the second plaintiff marrying the firstplaintiff she would give the plaintiffs Us. 1,200 (cash), Us. 15,000 inimmovable property and Us. 1,000 in jewellery: that the marriage tookplace:that in part fulfilment of her promise to give landed property
. she had by 1 D7 given the first plaintiff certain lands and by 1 D8 hadalso given a J share of certain other lands and that she had thereafterrevoked 1 D8 and repudiated the agreement and promise previously.made ”. The plaintiffs asked for a declaration that 1 D7 and 1 D8 wereirrevocable and that the defendant be ordered to settle on the plaintiffsimmovable property to the value of Rs. 15,000 less the sum of Us. 3,500,Tthe value of the property referred to in 1 D7 and 1 D8.
Although the plaintiffs pleaded that the defendant (Kumarihamy)had revoked 1 338 they probably meant that she had purported to revokeit, as credit is given to her for the value of the property described in thedeed.
The following were amongst the issues framed: —
(1) Did the defendant promise to give Us. 1,200 in cash, Rs. 1,000worth of jewellery, and Rs. 15,000 in immovable property as dowry to.first plaintiff in consideration of the second plaintiff marrying thefirst plaintiff?
<(2) In terms of the said promise did the defendant after the saidmarriage execute deed No. 1583 and deed 337 and give jewellery worthRs. 1,000 and cash Rs. 1,200 to the first plaintiff?
Are the deeds 1583 (1 D7) and 337 (1 D8) revocable?
They were answered against the plaintiffs whose action was dimissedon May 27, 1940.
In his judgment (I am now referring to the present case) the -Judgeremarked that issue (1) was substantially the same as issues (1) and (2)In case 143 and that issue (2) is the same as issue (10) in case 143.After the issues were framed he made a note to the effect that ‘ 'Issues (8)■and (9) relate to the maintainability of the action ” and on answering■these issues against the plaintiffs, as I have already said, Re dismissedtheir action with costs.
From an examination of case 143 it would appear that, while thedetermination of issues (1) and (2) involved the finding that Kumarihamy '■did not make any promises in consideration of the second plaintiffmarrying the first plaintiff and that she did not execute 1 D7 and 1 D8in terms of that pro-mdse and while issue (10) decided that the deeds wererevocable, there was no issue on the question of whether the deeds 1 D7and 1 D8 had in fact at that time been revoked. In her answer in case143 Kumarihamy admitted the execution of 3 D7 in favour of the firstplaintiff out of love and affection and did not claim to have revoked it.She also adrriitted the execution of 1 D8 in favour of three daughters
HE ARNE J.—Molagoda Kumarihamy and Kempitiya.
including the first plaintiff. This she claimed to have revoked, butthere does not appear to have been any issue as to whether she had doneso, although in his judgment the trial Judge said “ the second plaintiffnow finds that both deeds have been revoked
It was argued by Counsel for the plaintiffs-appellants that the firstand second defendants-respondents could not claim that the issues.decided in case 143 between the plaintiffs and R. D. Kumarihamy wereres judicata in their favour in a suit between the plaintiffs and themselves,for the reason that their alleged privity with It. D. Kumarihamy wasanterior and not subsequent to the decision in case 343.
Counsel for the first and second defendants-respondents concededthat the general principle implied in the argument of Counsel for theappellants was against his clients unless it eg old be shown that, havingregard to the law in Ceylon relative to vendors and vendees of land(and analogously to donors and donees where the former undertook to
warrant and defend ”) a vendor, even after a sale, represented the titleconveyed to a vendee, so far as third parties are concerned. This heclaimed was the position under our law. Something of the same ideaappears to have been present to the mind of the trial Judge.
Forcibly as Counsel’s argument was presented I am unable to upholdit. A vendor cannot represent title of which he has divested himselfand (here is not even a legal fiction .to that effect. In the case where apurchaser, who has not been placed in possession, sues a trespasser inejectment and calls upon the vendor to warrant and defend title, it isdear from the authorities that the vendor is called in to warrant anddefend not his, but the vendee’s title. The vendor does no more thanassist in the proof of the title conveyed by him. There is no vestige oftitle left in him which he can on his own account or vicariously putforward or “ represent ”,
The other argument of Counsel for the first and second defendants-respondents, was that as the third defendant (Kumarihamy) was a partyshe was entitled to destroy the cases of the plaintiffs and for this purposecould point to the decision in case No. 143. She could undoubtedlydo so’for her own purposes and to the extent of the scope of the decisionin that case. But this does not mean that the plea which she couldraise on her own behalf is one that she could confer on the first and'second defendants. With or without her consent, whether she was aparty or not, they could raise the plea themselves in their own favour,but only if they are in law entitled to do so. One must inevitably comeback tc the question of privity and whether the respondents were privies.Undoubtedly they are not unless Counsel’s first argument is sustainableand I have held otherwise.
Ihe appeal is allowed. The first and second^ defendants will pay theplaintiffs’ costs of appeal. Kumarihamy’s proctor did no.t raise issues0?) and (9). The case will be remitted for the purpose of it being proceededwith and all costs of trial prior and subsequent to this order will be in the.discretion of the trial Judge.
Sokrtsz J.—I agree.
MOLAGODA KUMARIHAMY et al., Appellants, and KEMPITIYA et al., Respondent