MOSELEY A.C.J.—JPwnchi Naide and Dingihamy.
1943Present: Moseley A.C.J. and Keuneman J.
PUNCHI NAIDE, Appellant, and DINGIHAMY, Respondent.
323—D. C. Kandy, 611.
Estoppel—Permit to believe—Meaning of expression—Evidence Ordinance,s. 115.
The expression “ permit to believe ” in section 115 of the EvidenceOrdinance means permit to continue in a belief already formed.
.A.PPEAL from a judgment of the District Judge of Kandy.
N.Nadarajah, K.C. (with him H. W. Tambiah), for the plaintiff,appellant. .'
E. B. Wickremanayake, for the defendant, respondent.
Cur., adv. vult.
June 22, 1943. Moseley A.C.J.—
The plaintiff-appellant sued defendant-respondent for declaration oftitle to an undivided half share of a piece of land and for an order ofejectment and damages. He succeeded in his claim for declaration oftitle but otherwise failed, and he was ordered to pay the respondent’scosts.
The land originally belonged to one Dingiri Naide who had as hismistress Ran Etana, by whom he had four children. On his death theland devolved upon the children in equal shares. By deed, P 5 of 1932,Ran Etana and the children conveyed the land to the appellant who hadpreviously married one of the daughters, Ukku Etana. In 1915, however,Ran Etana had leased the property to the respondent for a term of fifteenyears with an option in favour of the respondent of a renewal -for a liketerm. This option was exercised in 1923, and the case for the respondent
374MOSELEY A.C.J.—Punchi Naide and Dingikamy.
is that he did so at the request of the appellant and upon certainrepresentations made by the latter. In view of these alleged representa-tions the respondent claimed that the appellant is estopped from denyingthe validity of the lease in 1923, and that he (respondent) is entitled toremain in possession.
The issue relevant to this point was framed and answered as follows : —
“ 10. Did the plaintiff during the pendency of the said lease (i.e., of 1915)represent to defendant—
that Ran Etana was the lawful widow of the deceased Dingiri
Answer : No, it was taken for granted ;
that she had the right to lease the land in dispute ?
Answer : Yes ;.
that money was required for his marriage with Ran Etanaa
Answer : Yes. ”
The answer to part (a) of the issue is amply supported by theievidence.
It is, I think, common ground that, certainly up to 1923, it was generallybelieved that Dingiri Naide and Ran Etana were man and wife. Hadthat been-a fact, since Dingiri Naide di'ed intestate, his widow would havebeen entitled to a life-interest and she would have been entitled to granta lease of the land. .It is contended by Counsel for the appellant that theanswers to part (a) and (b) of the issue are contradictory, and that sincepart (a) was answered in the negative, part (b) should have been similarlyanswered. I do not think that this contention will bear examination.The answer to part (a) is reflected in the judgment as follows : —I do notbelieve plaintiff represented to defendant that Ran Etana was marriedas there was no necessity to do so, for defendant had already on lease 230of 1915 (P 3) leased the land from Ran Etana on that footing and I feelsure every one presumed Ran Etana was married to Dingiri Naide andgave no thought to the question when le'ase 406 (P 4, i.e., the lease of 1923)was entered into. ” The learned District Judge, however, accepted the ■defendant’s evidence that the appellant was responsible for the secondlease and agreed to it. It seems to me, that being the learned DistrictJudge’s frame of mind, that he was being meticulously, althoughunnecessarily, fair to the appellant in answering part (a) in the negative.Section 115 of the. £ vide nee Ordinance brings estoppel into operation‘ against a person who has “ by his declaration, act, or omission, intention-ally caused or permitted another person to believe a thing to be true andto act upon such belief ”, and the fact that every one presumed thatDingiri Naide and Ran Etana were married does not relieve the appellantfrom the disability conferred by the section upon one who permits anotherto believe a thing to be true and to act upon' that belief. It seems to methat, in answering part .(a) as he did, it was merely the intention of thelearned District Judge to acquit the appellant of the allegation that hehad made a positive declaration on the point. Counsel for the respondentinterpreted the. words “ permit to believe ” as meaning to permit tocontinue in a belief already formed, a reasonable interpretation in myopinion. '
JAYETfLEKE J. National Bank of India, Ltd., and Arthur Fernando. 375
I do not think that the case cited by Counsel for the appellant,Kanthappan v. Eliatamby1, assists his case in any way. I am also ofopinion that the respondent has discharged the burden of proof whichlies upon a representee as set out in Spencer Bower on Estoppel (1923 ed.rpara. 138).
I would therefore dismiss the appeal with costs.
Keuneman J.—I agree.