121-NLR-NLR-V-23-NANDUWA-et-al.-v.-BHAI-et-al.pdf
Present; Ennis and Porter JJ;
1988.
NANDUWA. et al. v. BHA1 et al.
415-r-D. C. Kandy, 28,668.
Estoppel—Person present at Fiscal*a sole and not making known his tideto purchasers—Intentionally—Evidence Ordinance, 8. 116•
Hsold a certain property to Won January 20, 1919 (registeredon January 21, 1919). On a writ of execution against H, theproperty was seised on January 21, 1919, and sold by the Fiscal onMarch 17, 1919. On hearing of the sale W wrote a letter to theFiscal stating his title, and on the date of the sale W went to the salewith his deeds and presented them to the auctioneer. W was presentat the sale, hut did not make his title known to the purchasers.Held, W was not estopped by his conduct from affmtTtmg his title.
N this case the subject of contention was the title to seven-
eighths of the land called Bogahapitiyawatta with the housesthereon. It was common ground that seven-eighths of this gardenbelonged to Abdul Hameed and Abdul Majeed, the remaining one-eighth being the property of their mother, who was not a party to thisaction. The plaintiffs case was th&t Abdul Hameed and AbdulMajeed, by their deed bearing No. 668 and dated January 20,1919(D 1), which was duly registered on January 21, 1919, sold andconveyed their seven-eighths share to Ana Uduma Lebbe, who,by his deed bearing No. 370 and dated July 29,1920 (P 8), sold andconveyed these shares to the plaintiffs. On the other hand, thefirst defendant claimed these shares as purchaser at a sale in execu-tion against the property of Abdul Hameed and'Abdul Majeed heldon March 17,1919, as shown by Fiscal’s conveyances bearing Nos.19,316 and 19,317, both dated June 11,1919 (D 7 and D 8).
In their answer the defendants, inter alia, pleaded that that therewas no consideration for the conveyance from Uduma Lebbe to theplaintiffs (P 8), and that they were not bona, fide purchasers forvaluable consideration, and that Uduma Lebbe and his privies-in-title, the plaintiffs, were estopped from contesting the first defend-ant’stitle, inasmuoh as Uduma Lebbe was present at the Fiscal’s saleheld on March 17,1919, and made no claim to the shares in question.
The District Judge (W. S. de Saram, Esq.)held that Uduma Lebbewas present at the Fiscal’s sale on March 17,1919, and notified hisclaim to the Fiscal’s Officer who was conducting the sale, but that,inasmuch as Uduma Lebbe'did not make his claim known to thepurchaser, Uduma Lebbe and his privies-in-tifcle, the plaintiffs, areestopped from denying the first defendant’s title, and dismissed the
plaintiff’s action, with costs.
34—
14-22/453
( 450 )
i92a
Nanduwav. Bhai
Pereira, K£ (with him Soertez), tor the appellants*—The saleto XTdnma Lebbe ig not tainted with fraud as held by the DistrictJudge. The fact that Uduma Lebbe did not tell the purchaserat the Fiscal’s sale of his title is not sufficient to estop him fromasserting his title. The circumstances do not show that he inten-tionally did anything winch might have caused the purchaser toact to his prejudice.
>
Jayawardene, K17. (with him Namratnam), for the respondents.—The sale to Uduma Lebbe was tainted with fraud. Notice to theFiscal of Uduma Lebbe’s title was insufficient. He was present atthe sale, and the effect of his failure to disclose his rights to thepurchaser and other bidders prejudiced the purchaser and madehim act on the belief that Uduma Lebbe had no title. Counsel cited20 N. L. B. 369, 24 N. L. B. 152, 18 N. L. B. 461, 21 N. L. B.360,19 N, L. B. 284,1 0. If. B. 74, 6 G. W. B. 147, 20 Cal 296.
June 26,1922. Eioas J.—
This was an action for declaration of title to seven-eighths shareof a land called Bogahapitiyawatta and the houses thereon. Itappears that the land originally belonged to one Miskin, who diedleaving a widow and two sons, Hameed and Majeed. They soldtheir seven-eighths share on January 20, 1919, to one Ana UdumaLebbe. That conveyance is the document D1, which was registeredon January 21,1919. Uduma Lebbe sold this share on January 20,1920, to the plaintiffs. The defendants claim to be the purchasersat sales on two writs of execution against Hameed and Majeed, re-spectively. The seizure of the property under those writs was onJanuary 21, 1919. The sale was on March 17, and the Fiscal’stransfers (D 7 and I) 8) are dated June 11,1919. The only questionon appeal put forward by the appellants is whether the learnedJudge was right in holding that the conduct of Uduma Lebbe hasestopped the plaintiffs from asserting their claim. The learnedJudge has found as a fact that Uduma Lebbe was present at thesales in execution, and did not make his title to the land known tothe purchasers at the sale. On these facts the learned Judge hasheld that an estoppel arises. Certain other facts were found bythe learned Judge, namely, that on hearing of the sale Uduma Lebbehad caused a letter to be written to the Fiscal stating that he hada claim for seven-eighths share of the land which had formerlybelonged to Hameed and Majeed; and, moreover, that on the date ofthe sale Uduma Lebbe went to the sale, took his deeds withhim,andpresented them to the auctioneer, informing the auctioneer that hewas the owner of the land to be auctioned. In my opinion thelearned Judge was wrong in holding that the conduct of UdumaLebbe created an estoppel. The section of the Evidence Ordinancewhich relates to estoppels is section 115, and it sets out that, when
( ;
a person has by his omission intentionally permitted another personto believe a thing to be true and to aet upon such belief, neither henor his representative shall be allowed to deny the truth of thatthing. The learned Judge appears to have overlooked the effectof the word “ intentionally ” in the definition of estoppel.
Mr. Jayawardene, however, has argued strenuously that theDistrict Judge’s finding is right, and has cited a large number of casesto us. The first of these cases is Caruppen Ghetty v. Wijesinghe.1In that case, however, there was a definite finding that the respond-ent’s silence on the occasion of the sale was due to a deliberateintention on his part to deceive the appellant for his own emolument.The next case was Fernando ©. Kwera.1 2 3 There my brother DeSampayo in his judgment expressly stated that there would be noestoppel, unless the party against whom it was set up meant hisrepresentation or conduct to be acted upcn. In the case of RodHgov. Kamnaratna3 many of the English cases on the question ofestoppel were analysed, and the Chief Justice in his judgment, aftersaying that there was no real difference between the Indian andEnglish law on the subject, said, that, in his view, the principle ofthe English law was clear, and he enunciated it in these words:“ The action taken upon the belief must be directly connected withthe false impression caused by the .representation or conduct,”and he proceeded to cite a number of cases, in each of which it wasdeemed essential that the representation or conduct complained ofshould have been intended to bring about the result whereby the losshad arisen, or that it was meant that the representation should beacted upon. There was also the case of TiMra v. Belinda.* Inthat case it was held that a person who had given a written noticeto the Fiscal that he was the owner could not save himself by such anotice, where, on the facts of thecase, it appeared that he himself wasthe writ-holder, and was present at the sale in that capacity and as abidder. Lx the case of Angohamy v. De Silva6 De Sampayo J.said that “ for the purpose of an estoppel, the state of mind or themotive of the person making the representation is immaterial, thegist of the matter being the belief engendered by the representationin the mind of the person who acts on it. It may be that, if therepresentation consists in silence when the person concerned oughtto speak, ignorance of the truth maypreventtheinferenceof a repre-sentation,” and in Dingiri v. Banda 6 it was held that “ it is generallyimmaterial whether the person who is guilty of misrepresentationis ignorant of the true facts, so long as the other party is, in fact,misled, but where such a person makes the representation or standsby knowingly, there arises the additional element of fraud, and insuch a case infancy does not relieve him from the consequences.”
Nanduwav, Bhed
1 {1912) 14 N. L. R. 162.4 (1917) 29 N. L. R. 284.
* (1916) 18 N. L. R. 461.5 6 G.W.R. 74.
3 {1921) 22 N. L. R. 360.6 6 C. W. R. 247.
1922.
Emns J.
Nanduwav. Bhai
( 462 )
The principal case relied on by Sir. Jayawardene was the Indiancase of Sarat Chundar Dey v. Qopal Okunder Laha.1 This case wasdecided by the Privy Council, and in the course of their judgment,at page 314, it was held thata person, who by his declaration, act, oromission had caused another to believe a thing to be true and to actupon that belief, must be held to have done so intentionally withinthe meaning of the Statute, if a reasonable man would take therepresentation to be,true, am} believe it was meant that he shouldact upon it. On this decision by the Privy Council it was arguedthat an omission by itself must be presumed to be intentional. Incertain circumstances the intention may be presumed. But theevidence in the present case shows that tJduma Lebbe did not inviteanybody to purchase at the sale. He took the precaution to informthe Fiscal by a letter addressed to him declaring that he claimed theland, and he went to the sale apparently for the sole purpose oftrying to stop it by producing for the inspection of the auctioneerhis deeds of title. His conduct at the sale shows clearly that he didnot mean anybody to purchase at the sale without knowing that hehad a claim. The fact that .the auctioneer did not stop the sale,and that the purchasers did not know that Uduma Lebbe had madea claim, does not affect the position. The purchasers were notinduced to make any purchase by any representation or omissionof the plaintiffs, It does not appear that they knew that UdumaLebbe was the owner, and their purchase was not due to an inten-tional act or omission of Uduma Lebbe’s, and, therefore, theplaintiffs, who are the successors in title of Uduma Lebbe, are notestopped from setting up their title. In the circumstances, I wouldallow the appeal, with costs.
Pobtkb J.—I agree.
Appeal allowed.
<s>
120 Oal. 206.