072-NLR-NLR-V-19-TIKIRA-v.-BELINDA.pdf
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Present : De Sampayo J.
TIKIRA v. BELINDA.
252—C. R. Kandy, 7,846.
Estoppel—Fiscal’s sale—Writ holfler holding a mortgage over land sold—Writ holder bidding at sale—Existence of mortgage not disclosed atsale.
Plaintiff was present at a Fiscal's sale held under his own writ,and was himself a bidder. What was seized and sold was theabsolute title to 4/6th share,withoutany disclosureofthe usu-fructuary mortgagewhich plaintiffheldoverthe landin question.
The plaintiff wroteto the FiscalaskingtheFiscal tocarry out the
sale subject to themortgage, butFiscaldidnot carryout the sale
subject to the mortgage, norwas theexistence ofanymortgage
disclosed at the sale eitherby theFiscal or bytheplaintiff.
The defendant purchased thepropertywithout knowledgeof the
mortgage.
Held, that plaintiff was estopped from setting up the usufructuarymortgage as against the defendant.
T
HE facts are set out in the following judgment of the AdditionalCommissioner of Requests (F. R. Dias, Esq.): —
There is clearly no defence to this action. The plaintiff is the assigneeof a duly registered usufructuary mortgage of1902inregardtothe
held in claim.The mortgagor died, and title passedtoher sixchildren,
of whim theplaintiff was one. In a certain actionbroughtbythe
plaintiffagainst his brothersand sisters heobtained adeclaration of
titleto 1/6,andundera writ againstfourof thedefendants inthat case
for damagesandcoststheir 4/6 shares were soldby the Fiscalin 1913
andboughtbythisdefendant. Heisnow disputing theplaintiff's
rightto possessthose4/6 shares ontheground that he hasabsolute
title under hisFiscal's transfer. It is contended onhisbehalfthatthe
plaintiff is estopped from denying his title because those shares weresold underhisownwrit, and hehimself was a bidder, and by his omis-sion tonotifyhis mortgageto the biddershe inducedthe defendant
to buy those shares as if the title to them was free and unencumbered.
There was no duty cast on the plaintiff to give the defendant or anyoneelse anysuchinformation atthe lime ofsale. Whenhe instructed
the Fiscaltocarryout the sale,be distinctly requested him in writing to
carry outthesalesubject to themortgage and assignment in his favour.
So far ashewasconcerned therewas no concealment, and what was sold
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was the right, title, and interest of the four judgment-debtors in and tothis field, that is to say, 4/6, subject to the payment of that proportionof the outstanding mortgage. No estoppel therefore arises in the case,and the plaintiff is entitled to immediate possession of these 4/6.
Enter decree for plaintiff as prayed with costs, and damages at Rs. 16a year from September 2, 1915, till defendant is ejected.
J. W. de Silva, for defendant, appellant.
Barth olomevsz, for plaintiff, respondent.
Cur. adv. vult.
September 11, 1916. De Sampayo J.—
One Ukku was the owner of a field called Buangekumbura. Sheleft six heirs, of whom the plaintiff was one. The plaintiff’s righthaving been disputed, an action was brought by him against hisco-owners, and judgment went in his favour for l/6th share. Torecover the costs of that action he caused 4/6th share belonging tofour of his co-owners to be seized and sold in execution in 1914. Thedefendant purchased that share at the sale, and obtained a Fiscal’stransfer. It appears, however, that Ukku had in 1900 effected ausufructuary mortgage over the entire land in favour of one HoratalaDuraya, from whom the plaintiff obtained an assignment of themortgage in 1911. The plaintiff as assignee of the mortgage nowseeks to eject the defendant. A plea of estoppel set up by thedefendant has been rejected by the Commissibner, and judgmenthas been given for the plaintiff.
It appears that the plaintiff was present at the Fiscal’s sale heldunder his own writ, and was himself a bidder. What was seized andsold was the absolute title to 4/6tb share without any disclosure ofthe usufructuary mortgage, though plaintiff himself was the holderof the mortgage at that time. He, however, depends on a letterwritten by him to the Fiscal asking the Fiscal to carry out thesale subject to the mortgage. The Fiscal did not carry out the salesubject to the mortgage, nor was the existence of any mortgagedisclosed at the sale either by the Fiscal or by the plaintiff. Thedefendant undoubtedly purchased the property without knowledgeof the fact. In this state of facts I think the plaintiff is estoppedby conduct from setting up title against the defendant. The letterwhich he wrote to the Fiscal, and of which the defendant was notaware, does not save him. He was himself the writ holder, and waspresent at the sale in that capacity and as a bidder. The case isquite distinguishable from Fernando v. Kurera et at.,1 on whichreliance is placed. The argument founded on that decision that noduty lay on him to speak cannot be maintained in the circumstancesof this case.
The judgment appealed from is set aside, and the plaintiff’s actiondismissed, with costs in both Courts.
Set aside.
1916.
Tikira vBelinda
i (1915) IS N. L. R. 461.