072-NLR-NLR-V-45-PUSPAKANTHY-Appellant-and-DR.-BALENDRA-Respondent.pdf
Puspakanthy and Dr. Balendra
297
1944Present: Howard C.J. and de Kretser J.PUSPAKANTHY, Appellant, and Dr. BALENDRA,Respondent. '
283—D. G. Colombo, 1,806.
Estoppel—Nature of representation—No defence that there was an absence ofintention to deceive—Voluntary statement made to induce the representeeto act upon it sufficient.
It is no defence to a plea of estoppel that the representation was notmade to deceive the person to whom it was addressed. It wonld hesufficientif itappears that the representationwas made voluntarily
with the actual or implied intention of inducing the representee to actupon it.
298
HOWARD C.J.—Puspakanlhy and Dr. Balendra.
^^PPEAL from a judgment of the District Judge of Colombo.
H. Y. Perera, K.C. (with him C. Renganathan), for defendants tappellants.
N. Nadarajah, K.C. (with him E. B. Wikremenayake), for plaintifEs,respondents.
Cur. ndv. vult.
May 22, 1944. Howard C.J.—
In this case the defendants appeal against a judgment of the DistrictJudge declaring that the plaintiffs are entitled to certain propertywhich was formerly known as No. 58, Hill street, Colombo, but whichhad been consolidated into one block with No. 59, Hill street, the wholenow being known as No. 50, Hill street. It was contended by thedefendants that the plaintiffs are estopped from denying the defendants’title to the land in dispute. The latter claim title through one Vallipuramwho took an assignment from one Letchimanan who was the mortgageeof certain property owned and mortgaged to him by one Sivacolenthan,the father of the plaintiffs. Detchimanan had put the bond in suit andobtained a decree against Sivacolenthan. This decree was assigned toVallipuram. The mortgage in favour of Letchimanan (P 10) speciallymortgages and hypothecates “ all those lands and premises in the schedule' A ’ hereto fully described. ” Schedule “A ” however describes two setsof premises both of which descriptions refer to No. 59, Hill street. Adescription of No. 58, Hill street, is not set out in Schedule “ A ”. Valli-puram, however, gave evidence on behalf of the defendants and statedthat he took the assignment of this decree on the request of Sivacolenthanin order to save the property from being sold in execution by Letchi-manan. Vallipuram further stated that he was aware of the fact thatSivacolenthan had bought the property in two blocks which he hadamalgamated into one block on which he had built a new bungalow.He further stated in evidence that Sivacolenthan told him he had raisedloans and mortgaged the whole bungalow and that the creditor wasthreatening to sell this bungalow if he did not redeem the debt. Valli-puram says that it was on the understanding that the ■whole propertyon which the new bungalow stood was mortgaged to Letchimanan thathe took the assignment of the latter’s decree.
It has been argued by Mr. Perera that having regard to the evidence ofVallipuram, the plaintifEs who claim as the heirs of Sivacolenthan areestopped from denying the title of the defendants to No. 58, Hill street,by reason of the representation of Sivacolenthan that he had mortgagedthe whole of the property, on which the bungalow stood, to Letchimanan.The learned District Judge has stated that he cannot place any relianceon the testimony of Vallipuram. He further states that he does notthink that Sivacolenthan could have made any misrepresentation tomislead Vallipuram because it would appear that Sivacolenthan washimself under the impression that the whole property was subject to themoi'tgage. Here the learned Judge seems to have become confusedin his reasoning. It is not necessary for Sivacolenthan to have had
HOWARD C.J.—Puspakanthy and Dr. Balendra.
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any intention to mislead Vallipuram. In this connection the followingpassage at p. 195 of Spencer Bower on Estoppel is in point: —
" The contention which from time to time has been advanced onbehalf of a representor that his honesty and innocence of intentionought to exempt him from liability to estoppel, as it does from liabilityto an action for damages, is based on a hopeless confusion betweena cause of action based on fraud and a rule of evidence, and has alwaysbeen rejected, for the obvious reason that, in the case of estoppel byrepresentation, as, indeed, also in the case of proceedings for rescissionof eon,tract on the ground of misrepresentation, the only materialsuggestion is, not the state of the representor’s morals, but the effectof the representation on the mind and will Of the representee. Ac-cordingly, it has always been held that it is no answer to a case ofestoppel to establish, or rather, perhaps, that it is not incumbent on therepresentee to negative, the fact that the representation was made ininnocent inadvertence or forgetfulness, or that the representor inmaking it, had no intention to defraud or injure the representee, orany other sinister design. If, as has already been explained, it appearsthat the representation was made ' wilfully in the sense of ‘ volun-tarily that is, with the actual or implied intention of inducing therepresentee to act upon it, it is wholly irrelevant whether it was, orwas not, made ‘ wilfully ’ in any ethical sense. ” –
The only question that arises is whether Sivacolenthan in fact toldVallipuram that the whole of the property was mortgaged. The learnedJudge has given no reason for disbelieving Vallipuram’s evidence on thispoint and I think it should have been accepted. If it is accepted, theplaintiffs are estopped from denying the title of the defendants.
It was further argued by Mr. Perera that the defendants were entitledto prove the circumstances in which the loan was obtained by Siva-colenthan from Letchimanan in order to prove that both Nos. 58 and 59,Hill street, were mortgaged and hypothecated by P 10. There is no doubtan inconsistency between the words of “ grant ’’ which mortgage andhypothecate “ lands ” described in the Schedule A ” and Schedule“ A ” itself which describes only “ one land The evidence of what wasintended to be mortgaged is cogent. In this connection we have beenreferred to the case of Van Diemen's Land Company v. Marine Board ofTable Gape1. The following passage from the judgment of Lord Halsburyon pp. 97-98 is relevant in considering Mr. Perera’s contention: —
“ It is quite true that if the language of the grant itself were absolutelyplain and unambiguous, no amount of user would prevail against theplain meaning of the words:see North Eastern Ry. Co. v. Hastings
(1900; A. C. 260). It is, however, impossible to contend that thelanguage of this instrument can be so represented. The language isvery wide, but when one finds such a recital -as this: * the companyhave been authorised to take possession of several portions of land,and have ever since been and now continue in possession thereof,but no grant thereof has been made to the Land Company ’: whenthese are the circumstances under which the grant is actually made—
1 (1906) A.C. 93.
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WUEYEWARDENE J.—David and Idroos.
why is it not evidence, and cogent evidence, when the taking possession:of the particular piece of land is proved, and the continuance in posses-sion before and after the grant is proved ? The time when, and thecircumstances under which, an instrument is made, supply the bestand surest mode of expounding it, and when the obvious intention isto give a title to what has been taken and retained before the actualgrant, it is manifest that what has been so taken and retained iscogent evidence of what is granted.
Applying the principle enunciated by the Lord Chancellor to the factsof the present case, I am of opinion that it is impossible to contendthat the language of P 10 is absolutely plain and unambiguous. Thetime and circumstances in which P 10 was made make it manifestthat not only No. 59 but also No. 58, Hill street, was mortgaged andhypothecated.
For the reasons I have given the appeal is allowed. The judgment infavour of the plaintiffs is set aside and the action is dismissed with costs
to the defendants in this Court and the Court below.
de Kretsbr J.—-I agree.
-o
A-ppeal allowed-