SAPARAMADU v. SAPARAMADU

079-NLR-NLR-V-20-SAPARAMADU-v.-SAPARAMADU.pdf


( 869 )
Present: Ennis J. and Shaw J.
SAPARAMADU v. SAPARAMADU.
129—D. G. Negombo, 12,325.
Estaovel—Owner holding registered conveyance present at Fiscal's sale—
Failure to notify his title to purchaser.
The first defendant took a conveyance from tie second defendantof the land in question and registered the same. Thereafter theland was sold in execution against the second defendant. Thefirst defendant was present at the sale, but did not notify to thebidders at the sale that he had purchased the same. The purchaserbrought an action for declaration of title.
Held, that the first defendant was estopped from setting uptitle to the same.
T
HE facts are set out in the judgment of the District Judge(M. S. Sreshta, Esq.): —
The plaintiff purchased the land in question on February 8, 1915, ata Fiscal's sale held upon a writ issued against the second defendant.On February 14, 1915,the second defendanthadsold thislandto the
first defendant. The plaintiff alleges that this deed was executed infraud of creditors; andfurther, that the first defendant isestopped from
claiming title to this land, having failed to notify his title at the Fiscal’ssale. He accordingly brings this action to have it declared that thedeed executed by thesecond defendantinfavour ofthefirst defendant
is null and void, andthat the plaintiff istheowner oftheland in
question."
The defenceis that thisdeedwas executedfor valuableconsideration,
and that the first defendant warnedallintendingpurchasers atthe
Fiscal’s sale that he had purchased this land.
The question was to whether the deed in question was executed infraud of creditors is easily decided. It has not been established thatthe second defendant rendered himself insolvent by executing this deed.Althoughthere aresuspiciousfeatures in this transaction,there is,
therefore, not sufficientmaterial for holdingthatthis deedwasexecuted
in fraud of creditors.
The next questionis whether thefirstdefendantisestoppedfrom
denying the plaintiff’stitle. It is admittedthat thefirstdefendantwas
present at theFiscal’s sale.Butdid henotifytothe intending purchaser
that he was the owner ofthisland?Thereisconflictingoral evidence
on this point.The Fiscal’sofficer whoheld thesale, whois a Vidane
Arachchi,says thatthe firstdefendant did so notify. Butit should
be remembered that the first defendant, who is the Police Vidane of thisvillage, is a subordinate of his, and that he (the Vidane Arachchi) would,therefore,be stronglyinclinedto give evidence in his favour.Moreover,
1918.
( 370 )
1918*
Saparanuxdu
v,
Saparamadu
the Vidane Arachchi's demeanour was unsatisfactory. There are certaincircumstances inthiscasewhichturn the scale intheplaintiff's favour.
Firstly, the first defendant's own brother gives evidence that he didnot hear the first defendant make the alleged notification, althoughhe (witness) was present when the conditions of sale were read. Thiswitness was obviously giving evidence against the first defendant withmuch reluctance;hefeltboundtotellthe truth;hewas himself one
of the bidders, but he had a sneaking desire to help, if possible, hisbrother, the first defendant, so he says that as many other peoplewere talking, hemightnot have heardthefirst defendantmaking
the alleged notification. I am satisfied that this witness is telling thetruth when he says that he did not hear the first defendant make thealleged notification.Whyshould he givefalse evidence againsthis
own brother, and in favour of the plaintiff, who is only a nephew?
The next circumstance in plaintiff's favour is the fact that he paidBs. 210 forthisland. TheVidaneArachcbisaysit was valued at Bs.400.
We know whatlow pricesare1 fetchedat a Fiscal's sale. If there isthe
slightest dispute, the price goes down considerably. So the fact thatthe plaintiffpaid, so muchas Bs.210forthisland shows that hewas
not aware of any defect in the title of the judgment-debtor, the seconddefendant. Wouldhehavepaidsuch a proportionatelylargesum at a
Fiscal's sale if hewereaware that it hadbeenalready sold tothefirst
defendant—a headman? Wouldhe have cared to launch into litigation'
with a headmanandrisklosingallthemoney be paid,not to speak of
costs? Decidedlyno.It is alsotobenoted thatthefirst defendant's
own brother, Moises, bid at the sale. Would he have so bid if the firstdefendant had notified that he had purchased this land? The thirdcircumstanceinplaintiff’sfavouristhefactthat a settlementwas
proposed on behalfof the first defendant,thaton payment ofasum
of money the plaintiff was to part with his rights to this land
The willingnessofthefirstdefendant to settle.thematter so
advantageously to theplaintiffindicates that he felt that the plaintiffwas
in the right.
I find accordingly that the first defendant,thoughpresentat the
Fiscal’s sale, did not intimate to the purchaser that he was entitled tothis land. As to why the first defendant failed to do so, it is not necessaryto record any finding. But evidently the first defendant did not wishto disclose the deedin hisfavour by the second defendant,whowas
the judgment-debtor.The first defendant, perhaps, received nocon-
sideration for the transfer in hiB favour, and did not publish to the peopleof the village, of which he was headman, that he had made a purchasewhich would appear to them to be a fraudulent one. This is, however,a mere hypothesis.
Judgment for the plaintiff declaring him the owner of the premisesin question, and for costs.
W. Jayawardene (with him E, G. P. JayatUleke), for the firstdefendant, appellant.—There is no evidence to support the findingthat the first defendant failed to notify his title at the sale. Evenif he did not, he is not estopped, as there was no duty cast on himto speak. He was the owner upon a registered title. Plaintiffshould have taken the precaution to ascertain the state of title by
( 871 )
making a search in the Land Kegistry, which if he did he wouldhave found that the judgment-debtor had parted with his title.The law does not impose a duty to speak where the plaintiff couldhave by reasonable inquiry learnt facts which would have put himon Ins guard. Council cited 8 N. L. B. 380, 14 N. L. B. 152, 18N. L. B. 461, 19 N. L. B. 284, I, L. B. 14 All. 362 and 1. L. B. 20Bom. 290.
Groos-Dabrera (with him A. St. V. Jayawardene), for the plaintiff,respondent, not called upon.
July 1, 1918. Ennis J.—
This was an action for declaration of title to land. The plaintiffwas purchaser at a Fiscal's sale in execution against the seconddefendant. The land was seized by the Fiscal on January 15and sold on February 8. It appears that on January 14 the firstdefendant took a conveyance from the second defendant of thesame land and registered on January 25. At the trial the plaintiffcontended that the sale to the first defendant was a fraudulent one,and one without consideration. He also contended that as the firstdefendant had failed to notify his title to the purchaser at the sale,that he was estopped from denying the plaintiff’s title. The learnedJudge held in favour of the first defendant on the first of thesecontentions, and against him on the second. The finding of factappears to be that the first defendant was present at the auction,and stood by and allowed the plaintiff to purchase the property,knowing that the plaintiff was being deceived. It has been suggestedthat the fact that the first defendant registered his purchase wassufficient notice to the purchaser, but this does not necessarilyprove that the plaintiff should have been aware of this purchase.The cases on the point seem to indicate that, where circumstancesexist which would put the purchaser upon an inquiry, he-may bepresumed to have the knowledge. Such circumstances appear tobe possession, as in the case of Fernando v. Kurera 1 and other circum-stances of that character, and there is nothing in this case to suggestany circumstance that might have put the plaintiff on his guardand on inquiry into the title. On the contrary, the finding of factis such as to indicate that every factor was present which wouldlead him to believe that the second defendant was, in fact, the ownerwhen the property was auctioned, e.g., the first defendant’s ownbrother bid at the auction.
I would dismiss the appeal, with costs.
Shaw J.—I agree
Appeal dismissed.
1918.
Saparamaduv.
Saparamadu
*(1915) 18. N. L. B. 461