( 217 )
Present.- Mr. Justice Wood Benton and Mr. Justice Grenier.
Bei vkidicatio—Absence of title at the commencement of the action—
Subsequent acquisition of title —Insufficiency—Fiscal's transfer.
'Where the plaintiff sought to vindicate title to property conveyedto her by a person who had purchased it at a Fiscal’s sale, but whoat the date of action had not obtained a Fiscal’s transfer, butobtained it nine days after the institution of the action—
Held (Grenier A.J. dubitante), that the plaintiff's title (apartfrom prescription) must fail, as her vendor had do title at the dateof action in the absence of a Fiscal’s transfer.
Silva e. Hendrick Appu 1 followed-.
FFEAL from a judgment of the District Judge of Tangalla
jljL (W. T. Southorn, Esq.). The facts material to the reportappear in the judgments.
H. Jayewardene, for the substituted defendants, appellants.
Van Langenberg, for the first defendant, respondent.
July 6, 1908. Wood Benton J.—
The original owner of the land in dispute in this case was DonBastian Samarasekere. On May 15, 1880, he mortgaged it. Thebond was put in suit, and the land was seized and. sold in executionagainst Don Bastian in 1889 to the second defendant, who is nowdead. The first defendant-respondent and the second defendantswere Don Bastian’s Sons. The fourth, fifth and sixth defendantsappellants are the second defendant’s minor heirs, and .the' thirddefendant-appellant is their guardian ad litem. The Fiscal’s saleto the second defendant was confirmed on April 11, 1901, but theFiscal’s conveyance did not issue till July 14, 1906, nine days afterthe institution of the present action by the plaintiff-respondent,to whom the second defendant had sold the land in dispute by deedof January 27, 1905, and who alleged ouster by the first defendant-respondent in February, 1906, called on the second defendant towarrant title or refund the purchase money, and claimed a declara-tion of title and ejectment as against the first defendant-respondent.
PONNAMMA v. WEEBASUBIYA et al.
D.C., Tangalla, 836.
Cur. adv. vult.
i (1898) 1 N. L. R. 18.
( 218 )
1908. The first defendant-respondent denied that the plaintiff-respondent’sjidyO.vendor had any right to convey; while the second defendant
Woodwarranted title on the two-fold ground of (a) purchase at the Fiscal's
Renton J. gaje confirmed by the subsequent conveyance and (b) prescription.
The learned District Judge held that the warranty of title failedas to (a), because, in the absence of a Fiscal’s conveyance, at thedate of the institution of the present action, neither the seconddefendant nor, through him, the plaintiff-respondent had acquiredthe ownership of the land in question; and as to (b), because so longas the sale remained incomplete the second defendant could notprescribe against his co-heirs. He, therefore, dismissed the plaintiff-respondent’s action with costs as against the first defendant-respondent, but gave him judgment as against the second defendant’sheirs, the substituted defendant-appellants, with costs. Againstthe decree the present appeal is brought. The . plaintiff-respondentwas not represented on the hearing of the appeal. I think that thelearned District Judge was right on the first point, but wrong on thesecond.
The cases of Abubakker v. Kalu Ettena 1 and Selohamy v.Raphiel,1 in which it was held that a Fiscal’s conveyance of landsold in execution has relation back to the date of the executionsale, and therefore enures to the benefit of a party to whom theexecution purchaser had conveyed before obtaining the Fiscal’sconveyance, are clearly distinguishable. In these cases the Fiscal’sconveyance was obtained before action brought. Here it wasobatined after that date; and Silva v. Nona Hamine 3, a decisionthe scope of which we have no right to limit on this point, asMr. Jayewardene invited us to do, to actions under section 247 ofthe Civil Procedure Code, and Silva vr Hendrick Appu'4 oblige usto hold that it then came too late to confer title for the purpose ofthe present proceedings. The facts that the second defendant-respondent had obtained the Fiscal’s transfer at the date when hefiled answer, and that the. plaintiff-respondent sued not on theFiscal’s sale, but on his own transfer from the second defendant,are, I think, immaterial. The latter point is exactly covered bySilva v. Hendrick Appu (ubi sup.), in which the action was broughtby the assignee of the purchaser at the Fiscal’s sale. But theFiscal’s sale, though imperfect in the absence of a conveyance,clearly formed a legal starting point for a title by prescription, andI would, therefore, set aside the. decree appealed against,' and sendthe case back for trial and adjudication on that issue.
As our judgment involves the entire setting aside of the decreeappealed against, I think that the respondents should pay thecosts of this appeal, but that the other costs should abide the
' (1889) 9 S. C. C. 33.
= (1892) 1 8. C. R. 73.
(1906) 10 N. L. R. 44.
(1896) 1 N. L. R. 13.
( 219 )
The following issues were agreed to by the parties on October 2,
Did the Fiscal’s conveyance mentioned in the plaint convey
title to the second defendant?
Had the second defendant at the time of sale the right to
convey the land to plaintiff?
Had the second defendant prescriptive possession of the
The first issue is meaningless, because the Fiscal's conveyance tosecond defendant is dated July 4, 1906, and this action was institutedon July 5, 1906. I am inclined to think that the issue reallyintended was—Did the conveyance by second defendant to plaintiff,dated January 27, 1905, convey title?—because that is the onlyconveyance that is mentioned in the plaint. The second issue wouldthen logically follow this issue—Had the second defendant at thetime of sale the right to convey .the land to plaintiff? In otherwords, what was meant was—the second defendant had no Fiscal’sconveyance at the .time he sold to plaintiff, but he has one now,and as his Fiscal’s conveyance related back to the date of sale, thequestion submitted by this second issue was whether it enured .tothe benefit of the plaintiff. It must be remembered that the seconddefendant obtained his Fiscal’s conveyance long before he filedanswer—the conveyance is dated July 14, 1906, and his answer wasfiled on September 14, 1906. The second defendant died after theissues had been framed, so that the Fiscal-s conveyance had alreadyenured to the benefit of the plaintiff before the case actually cameon for trial. The question to my mind seems to be whether themere fact of the plaintiff having instituted her action before hervendor, the second defendant, had obtained a Fiscal’s conveyanceoperated as a bar to the conveyance enuring to her benefit. Nodoubt the cases cited at the argument, and which are referred toby my brother, are distinguishable from the present case, in thatin the former, the Fiscal’s conveyance was obtained before actionbrought. But what is the difference in principle, considering that,when the issues were settled, as well as on the date of trial, bothparties were agreed that the second defendant had duly obtained aFiscal’s conveyance, why should not that conveyance have, as in. ordinary circumstances it would have done, enured to the benefitof the plaintiff, the admitted grantee of the second defendant?
Plaintiff’s title, which at first was 'imperfect, was long before thedate of trial rendered a good and valid title by his grantor havingobtained a conveyance from the Fiscal' And as this was an actionrei vindicatio, the Court might have examined the parties as to theirsources of title and .then framed issues in order to determine the
( 22a )
question of title once and for all. There was nothing to preventthe plaintiff from producing the Fiscal's conveyance in favour ofsecond defendant and relying upon it for his title. I find that Mr.Justice Browne took very much the same view that I am nowtaking in the case of Silva v. Hendrick Appu.1
If the plaintiff has no title as derived from second defendant byvirtue of the Fiscal’s conveyance, then in whom is the title? Itcannot be in second defendant’s heirs (the third, fourth, fifth, andsixth defendants), because the second defendant has in his answeradmitted the title to be in plaintiff and does not his admission bindhis privies in estate? The case has presented itself to my mind inthe way I have stated above, but I cannot resist the weight of theFull Court Judgment in the case of Silva v. Hendrick Appu,1although one of the Judges dissented from .the views of the rest ofthe Court. The ruling in that case has been subsequently followed,and whilst following it myself, I have thought it right to expressmy own opinion on the question. I agree to the order proposed.by my brother.
Appeal allowed; case remitted.
PONNAMMA v. WEERASURIYA et al