004-NLR-NLR-V-22-PUNCHI-MAHATMAYA-v.-WALOOPILLAI.pdf
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Present: De Sampayo J. and Loos A.J.
PUNCHI MAHATMAYA v. WALOOPILLAI.
*
350—D. 0. Batnapwra, 3,257.
Lis pendens—Applicationfor sale of property subject to fidei commissum.
An application to Court under the Entail and Settlement Ordi-nance, 1876, for sale of a property,subjeot to a fidei commissum isnot a lie in the sense required for the purposes of the doctrine oflie pendens.
rpHE facts appear from the judgment.
R. J. C. Pereira (with him Canakeratne), for defendant, appellant.
A. St. V. Jayawardene (with him Weeraratne), for plaintiff,respondent.
Our. adv. vuit.
March 25, 1920. De Sampayo J.—
This is a somewhat peculiar case, and the proceedings areequally peculiar, inasmuch as the District Judge has decided seriousquestions of faot without any evidence whatever. The ease arosein the following circumstances. Mrs. Caroline Julia de Zilva, beingthe owner of a certain house in the town of Ratnapura, by deeddated July 10, 1906, gifted the premises to her son Viotor de Zilvafor life, and after his death to his wife Florence Hazel for life, andafter her death to Caroline Hazel Vivian, the daughter of Viator andFlorence Hazel, who was, and still is, a minor. The gift was subjectto a life interest in the donor, and also subjeot tc nAdei commissumin favour of the heirs of the minor Caroline Hazel Vivian. Thedonor died on January 21, 1919. She and her son Victor gavecertain leases, with regard to which it need only be stated that theywould expire in April, 1922. Tbe premises were used as a prootor’soffice, and the leases were either in favour of the defendant’spartner, P. 0. F. Goonewardene, or in favour of himself. On Maroh18, 1919, Victor de Zilva made an application to Court, under theprovisions of the Entails and Settlements Ordinance, 1876, forauthority to sell the premises for 'Rs. 10,000, and to invest themoney in the purchase of some other property, subject to the sameconditions. After due inquiry the Court on April 16, 1919, allowedthe application, and the property was sold to the plaintiff by deeddated April 17,1919. In the meantime, on Maroh 19, 1919, Viotorde Zilva gave a lease to the defendant for a period of five yearscommencing from the expiration of the subsisting leases.
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1920.
Db Sampayo
J.
PunekiMahatmaya.v. WaXoo*piUai
'The plaintiff brought this action to have this deed of lease can*celled, on the ground that the lease was obnoxious to the provisionsof the original deed of gift, which had prohibited a lease for morethan two years or during the pendency of another lease. It wasobvious that this was a wholly untenable ground, but at the trialthe nature of the action was enlarged, and it was made to rest onthe ground (1) that the lease being granted during the pendency ofthe application to Court for sale of the property, the doctrine of -lis pendens applied, and the lease was invalid; and (2) that thedefendant obtained the lease fraudulently and in collusion withVictor de Zilva. As regards the first branch of this cause of action,
I am unable to regard the application to Court under the Entail andSettlements Ordinance, 1876, as a K$ in the sense required for thepurposes of the doctrine of Us pendens. But it is only necessary tosay that this so-called lis pendens was not registered under theprovisions of the amending Land Registration Ordinance, and. therefore the plaintiff is not able to maintain his oase on that ground.As regards the second branch, the District Judge negatived theexistence of fraud, as in the circumstances he must necessarily do.But he has found that the defendant entered into the lease ofMarch 19, 1919, collusively with Victor de Zilva for the purpose ofdefeating the application to Court, and he accordingly set aside thelease and entered a decree in favour of the plaintiff for possessionand damages. The only fact which the learned District Judge hadbefore him in. connection with this point is the admission in theanswer that the defendant knew of the application to Court. Butmere knowledge of this kind does not amount to collusion, whichimplies co-operation or acting in concert, but of this there is not theslightest trace, nor is there anything to show that the defendant’sintention was to defeat the Court’s exercise of its power in respectof the application for sale of the property. The District Judge’sfinding on this point is a gratuitous assumption. He also found bymere comparison of the rent secured by the various leases that theconsideration for the lease in question was inadequate, and utilizedthat opinion as proof of the existence of collusion. This is aninstance of one assumption being taken as proof of another assump-tion,. The question of inadequacy of consideration could only havebeen determined by due inquiry into all the circumstances. But, asI stated before, there, was no evidence whatever taken in this case.Moreover, the lease caused no prejudice to the minor, since the fullvalue of the property was realized by the sale. The plaintiff, aspurchaser, may be said to be prejudiced, but he purchased with hiseyes open. The most remarkable circumstance in the whole caseis that the plaintiff knew about the lease before the purchase, andeven entered a caveat against registration of any deed relating tothe land, and yet for some extraordinary reason he abstained frominforming the Court of the lease, and purchased the property
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notwithstanding that fact. I do not think he can complain now.It was contended in appeal on the authority of Andrishamy v,Silva1 that in any case Victor de Zilva had no power to make thelease and so defeat the exercise of the Court’s authority. Bui thatdecision is inapplicable, for it was based on the fact that the Courthad already made an order and had itself undertaken the sale andcarried it through a Commissioner appointed by Court, though outthe formal transfer had not yet been executed.
Iii my opinion jfche judgment appealed from is erroneous. Iwould set it aside, with costs in both Courts.
Loos J.—I agree.
Set aside.
1920.
Db SampayoJ.
PunohiMahaimayav, Waloo-
pfflai