014-NLR-NLR-V-39-THIRUNAYAKAR-v.-THIRUNAYAKAR.pdf
1937
Thirunayakar v. Thirunayakar.
35
Present: Poyser S.P.J. and Soertsz J.THIRUNAYAKAR v. THIRUNAYAKAR.
237—D. C. Kurunegala, 16,891.
Public officer—Purchase of land by unregistered overseer—Breach of GeneralOrders—Action to recover land—Contract not contrary to public policy.- An unregistered overseer is not a public officer who is bound by theGeneral Orders of the Government.
An action may be brought by a public officer to recover land pur-chased by him in the name of another in breach of the General Orderwhich prohibits the acquisition of land without the sanction of. Government.
36POYSER S.P.J.—Thirunayakar v. Thirunayaltar.
T
HIS was an action brought by the plaintiff to recover land, which hehad bought with his own money in the name of the defendant.
At the time the plaintiff purchased the land, he was an unregisteredoverseer in the Public Works Department. It was contended that theaction was not maintainable -as the plaintiff in acquiring the propertywithout the sanction of Government was acting against the General Orders.The learned District Judge held that the plaintiff was not a public officer.
H. V. Perera (with him- N. E. Weerasooria), for defendant, appellant.—The plaintiff is a public officer and as such he -is prohibited from buyingproperty without the permission of Government. He has acted contraryto the General Orders. An overseer has been held to be a public servantwithin the meaning of the Public Servants’ Liabilities Ordinance,(Weerasinghe v. Wanigasinghe l) . In buying property in the brother’s namethe plaintiff has been guilty of a fraud. The object was to prevent theGovernment from knowing that he was buying property. The evidenceshows that the 'plaintiff was making large profits. The departmentwould have dismissed him if it knew this. The purchase of propertywould have suggested that the plaitftiff was making money out of thedepartment, which he has tried to keep in the dark. The conduct of theplaintiff has been fraudulent. Counsel cited Fernanda, v. FernandoErnie Nona v. Winsonz, In re Great Berlin Steam Boat Co. Kerr on Fraud384.
Croos da Brera (with him C. T. Olegasagarem), for plaintiff, respondent.—The plaintiff is not a monthly paid servant. He is not therefore a publicofficer within the meaning of the General Orders. There is no absoluteprohibition against the purchase of property by a Government servant.What is required is that the permission of the Government should beobtained. It is purely a departmental matter. There was no' issue onthe question whether the plaintiff made any profit improperly nor is thereany evidence to show that. Even if the profit was improperly made thepurchase of property in another’s name does not for that reason becomebad. There is nothing immoral or illegal in what the plaintiff has done.
Counsel cited 20 Halsbury 761, 762 and White & Tudors Leading Caseson Equity 759.
H. V. Perera, in reply.
Cur. adv. vult.
March 24, 1937. Poyser S.P.J.—
The facts of this case are briefly as follows: —In 1922 the plaintiff, bydeed P 4, purchased a certain land with his own money but had the deedof transfer executed in the name of two of his sisters and two of hisbrothers of whom the defendant is one. The defendant only is sued asthe sisters have already transferred their shares to the plaintiff and theother'brother is now in a lunatic asylum.
Similarly, in 1928, by deed P 8, the plaintiff purchased another pro-perty the transfer of which was executed in favour of the defendant.
At the time the plaintiff obtained these transfers he was an unregisteredoverseer in the Public Works Department; it was for that reason he did
* (1932) 34 N. L. R. 185.* (1933) 35 N. L. R. 221.
4 (1932) 35 N. L. R. 154.4 26 Ch. Div. 616.
POYSER S.P.J.—Thiru.nayak.ar v. Thirunayakar.37
not have the transfers executed in his own name, not wishing, to use hisown words “ the Government to know that I had bought property in myname.”
The District Judge has accepted the – plaintiff’s evidence and entirelydisbelieved the defendant. He consequently declared the plaintiffentitled to the lands claimed and ordered the defendant to transfer hisrights on P 4 and P 8 to the plaintiff.
In the lower Court the point was taken that the plaintiff by acquiringproperty without the sanction of the Government did an act which wascontrary to public policy and therefore could not ask a Court of Equity torescue him from the consequence of such an act.
The Judge’s finding on this point was that “ the plaintiff did obtain-the transfer in question in order to circumvent General Orders appertainingto public officers and concealed the fact that he was acquiring property ”,but he also found that the plaintiff was not a public officer andconsequently did not reject his claim on this ground.
On appeal the only point taken was that the plaintiff had actedfraudulently and deceitfully, and therefore it would be against publicpolicy to grant him any relief against his brother.
The basis of that argument is that the plaintiff was a public officer.The material orders are as follows : —
General Orders (Sixth Edition)—152. No Public Officer is allowedto acquire or be a part owner of ahy land in the Colony other than agarden or ground attached to his dwelling house, and not .cultivatedwith a view to the sale of produce. He may not acquire or be a partowner in any concession in the Colony, nor within the same territory bethe owner of house property other than a house for his own occupation.
153. General Order 152 is not binding on officers who are nativesof Ceylon (including Burghers), but such officers must obtain thesanction of Government before they purchase land.
The trial Judge was of the opinion, having Vegard to the definition ofpublic officer, in Order. 322, that General Orders did not apply to theplaintiff.
General Order 322 occurs in Chapter VII. which deals with the Widows’and Orphans’ Pension Fund, and is as follows :—
322. ‘ Public Officer ’ shall mean and include—
Any person who holds any permanent office in the service of thisColony which is—
Separately provided for on the Estimates, and
Has been declared to be pensionable by notification published in
the Government Gazette, and.
Who draws a salary from the Colonial Treasurer of Rs. 250 per
annum or upwards, either in respect of one or of two or moresuch offices held permanently and conjointly. I
I do not think this definition can be taken into account as regardsChapter IV. which deals with discipline. That Chapter,, however, doesappear to indicate that the orders therein set out only apply to salariedofficers and the plaintiff is not a salaried officer but is paid a daily wage.
38
The King v. Gabriel.
An unregistered overseer, as the plaintiff is, has been held to be a publicservant entitled to the protection of the Public Servants' LiabilitiesOrdinance. See Weerasinghe v. Wanigasinghe ' ; but I do not think he is apublic officer and therefore Rule 153 would not be applicable to him.
Assuming however that the plaintiff was a public officer I would stillhold, for the following reasons, that the judgment appealed from should beaffirmed. There is no evidence that the plaintiff defrauded or deceivedthe Government or any one else, his evidence is, and it is the only evidenceon this point, that he was making a reasonable profit on his Governmentcontract and he did not want the Government to kno'w that.
There is no evidence that he improperly made a profit from his Govern-ment contracts, and consequently all the plaintiff has done is to disregarda general disciplinary order which has not the force of law.
The general principles in regard to the maxim “ In p iK ielicto potiorest conditio defendentis ” which was invoked on behall of the defendantare conveniently set out in Pollock’s Principles of Contract (7th ed.),p. 379, and may be summarized for the purposes of this case as follows : —“ No Court will lend its aid to a man who founds his cause of action uponan immoral or an illegal act.”
As previously pointed out the plaintiff’s cause of action was notfounded on an immoral or illegal act and he is entitled to succeed in hisclaim.
The appeal is dismissed with costs.
Soertsz J.—I agree.
Appeal dismissed.
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