130-NLR-NLR-V-58-P.-B.-PERERA-Appellant-and-KIRI-HONDA-Respondent.pdf
1956Present : K. D. de Silva, J., and Sansoni, J.P. B. P32IIERA, Appellant, and KIRI HONDA, RespondentS. C. 2GS—D. C. Kvruncrjala, 7,931 jLSale of land—Several vendors—Is there a jtresumptien that each of them owned an e",ualshare ?—Exeeptio ret vonditae ct traditao—Scope, of its applicability.
Where several vendors join in conveying a land or a portion of a land, itcannot be presumed tiint tho deed of salo was a conveyance by them in equalshares, particularly where tho rest of the evidence shows that they wero neverconsidered as owning tho laud in equal shares. Accordingly, if A, B, C and Dsell to E a greater portion of n land than they aro altogether entitled to andsubsequently A alone acquires title to an additional portion of tho same land,tho doctrino of exeeptio rci venditae el tradilae can .operato against A in respectof even the entirety of tho additional portion although tho total extent of A’ssliaro thereby allotted to E amounts to more than one-fourth of tho portion ofland originally sold to E. .
hnder tho exeeptio rei venditae cl Iraditae a sale made by a vendor withouttitle may be relied upon as against a purchaser from that vendor after thevendor has acquired title. …
jApPEAL from a judgment of the District Court, Kurunegala.
T. J3. Dissanayake, for the plaintiff-appellant.
II. IF. Jayewardene, Q. G., with IF. JD. Gunasekera, for tho 2nddefendant-respondent.
Gar. adv. vull.
June 21, 1956. Saxsoxi, J.—
The dispute between the plaintiff-appellant and the 2nd defendant-respondent in this case turns on the effect to be given to the deed 2D2of 1936..
It is common ground that the four vendors on that deed, Salanchia,Rail am ali, Tikkavi and Rapia were ent itled, as shown in the pedigreeattached to the plaint, to -Jtlr, l/16tli, 1/16th and £th share respectively,or S/16 in all. 33 that deed, however, they conveyed 12/16 to Ukkuwa,who by deed 2D3 of 1916 conveyed that share to the 2nd defendant.After the execution of deed 2D2, Salanchia inherited 1/S from his brother-Esa, and transferred that share to the plaintiff. The 2nd defendantclaimed that he had a preferent right to this 1/8 share by reason of theexcejJlio rei venditae et traditae, since he had still to get title to 4/16 afterhis purchase on 2D2. It was submitted for the plaintiff, however, thataccording to the decision in Carlina v. Nonhciniy 1 Salanchia must bedeemed to have conveyed only a 3/16 share to Ukkuwa by deed 2D2,and as title to 2/16 had already passed from him on that deed, the 2nddefendant was entitled to claim only a further 1 /16 share from that source.In the result, the plaintiff claims that he is still entitled to l/lflth out ofEsa’s 1 /Sth share, while the 2nd defendant’s position is that the entirel/8th share has devolved on him.
In the case cited, Gratiacn, J. (Basnayake J. agreeing) had to dealwith a case where four persons conveyed the entirety of a land, and twoof those four persons had no interests at all to convey. The deed passedtitle only to a } share. Subsequent^-, one of the two vendors who hadno interest, by name .Jacoris, acquired title to a J share and the vendeeclaimed that under the exceplio referred to this -1 share passed to him.Gratiacn J. held that as no specific undivided shares were convej'ed bythe four vendors in the earlier deed “ it follows in accordance with theaccepted principles of construction that each must be deemed to have-purported to convey a one-fourth share in the land. It follows thattire doctrine of exceptio rei venditae et traditae could operate againstJacoris only in respect of an undivided one-fourth share of the land ”.This decision was relied rtpon by the plaintiff-appellant’s Counsel.
The judgment does not cite airy authorities as laying down theprinciple of construction which was applied in that case, and I.do notthink it can be applied in all cases where several persons join in conveyinga land or a sltare of a land. There is no presumption that persons owning;a land in common in this country, especially those who have obtainedtheir shares in the land by inheritance, own tire land in equal shares.
It follows that tlrere is no presumption that where four such co-owners-
1 (1940) 41 G. It. W. 7.
join in transferring the entire land or a share of it, each of them is to bedeemed to have transferred a proportionate share. This very easeprovides an illustration of what happens every day when four co-ownersdeal with their interests in a land owned in common.
We liavo not been referred to another ease whero it lias been held thateach of several vendors is presumed to have conveyed an equal share ofthe land, but it %vas held in Sinno Appu v. Dingirihamy 1 that there isno presumption that- a Crown grant in favour of several grantees wasa grant to them in equal shares. Lascelles, C.J., said that it frequentlyhappened in this country that several persons contributed the purchasemo 1103- in unequal shares and the grant would be made out in favour ofthe vendees simpliciter, leaving it to them to adjust their shares in accor-dance with the agreement between themselves. Both the Chief Justiceand Wood Renton, J., who agreed, said that a construction of a Crowngrant which applied such a presumption would lead to serious practicaldifficulties. This judgment was referred to in the case of Appu v. Silia, 2,where de Sainpayo, J. said that the earlier ease morel}’ decided that thereis no irrebuttable presumption that several grantees become entitledin equal shares. The learned Judge went on to say “ to my mind when aproperty is purchased by several persons and the deed does not specifywhat share is conveyed to each, the deed itself is priina facie evidencethat they acquired title in equal shares. This inference may of course berebutted by specific evidence as to the intention of the purchasers ”.
These decisions perhaps support the proposition that in the absenceof other evidence a grant in favour of several persons may be construedas a grant to them hi equal shares. I cannot, however, accept the con-verse proposition that a deed of sale by several vendors should be pre-sumed to have been a conveyance by them in equal shares, particularlywhere the rest of the evidence shows quite plain]}’ tiiat they were neverconsidered as owning the land convoyed in equal shares. I11 the faceof such evidence I think it would bo unreasonable to apply a presumptionwhich is contrary to the known facts.
If, then, there is no presumption that Salancliia sold only a 3/16 shareon the deed 2D2 I see 110 obstacle to the exceptio rei venditae el traditaebeing applied in full force to this case, and the 1/S share, which the plain-tiff bought from Salancliia, being allotted to tiie 2nd defendant. Asthe Privy Council held in Goonctilleke v. Fernando 3, under this exceptioa sale made by a vendor without title may be relied upon as against apurchaser from that vendor after the latter has acquired title.
It was also pointed out in that case that this Roman Dutch law doc-trine is broader in its effect than the English law rule as to conveyance byestoppel. I think that if one applies the doctrine in this case, one isentitled to say that neither Salancliia nor the plaintiff can be heard todispute the 2nd defendant’s title to the 12/16 share conveyed 011 the deed.2D2.‘
For these reasons I would dismiss this appeal with costs.
de SrnvA, J.—I agree.
Appeal dismissed,
1 (1012) 15 X. £. if. 250.= (1022) 24 X. if. 42S.
3 (1021) 22 X. L. It. 3S5.-