093-NLR-NLR-V-43-TISSAHAMY-v.-PERERA.pdf
Tissahcmxy v. Perera.
405
1942Present: Howard C.J.
TISSAHAMY v. PERERA.
188—C. R., Badulla, 10,307.
Estoppel—Fiscal’s sale—Bid by plaintiff—Purchase by defendant—estoppelagainst plaintiff.
At a Fiscal’s sale, the plaintiff made two bids for a property,which was knocked down to the defendant. The substituted defendantstated in his evidence that “whether plaintiff bid or not we would havepurchased unless the price went very high
Held, that the plaintiff was estopped from claiming title to the propertyas against the defendant.
A
PPEAL from a judgment Of the Commissioner of Requests,Badulla.
N. K. Choksy (with him Ivor Misso), for the plaintiff, appellant.
Cyril E. S. Perera, for the'defendant, respondent (substituted).
> 33 X. L. R. 71.
Cur. adv. vult.
406HOWARD C.J.—Tissahamy v. Perera.
June 1, 1942. Howard C.J.—
This is an appeal by the plaintiff from a judgment of the Commissionerof Kequests, Badulla, dismissing his action with costs. The learnedCommissioner has decided in the plaintiff’s favour an issue as to whetherthe latter had prescribed to the land in dispute. He has also held thatthe plaintiff is estopped from denying the title of the original defendantwho bought the land in question at a Fiscal’s sale. The only question fordecision is whether the Commissioner was right in coming to the con-clusion that the plaintiff was estopped from denying the title of thedefendant.
It is conceded by the plaintiff that he was present when the land wassold by the Fiscal. The sale took place on the land itself. The plaintiff,though present, made no claim to any portion of the land. – In fact heoffered two bids. In spite of this conduct on the part of the plaintiffhis Counsel contends that he is not estopped from denying the title of theoriginal defendant, who purchased the property at the auction. He basesthis contention on certain statements made by the substituted defendantwhen he gave evidence. In cross-examination, the latter stated asfollows : —
“ On a writ against brother-in-law the land was sold and my wifebought. The plaintiff bid twice. His bidding did not influence myconduct. I knew the land when it belonged to father-in-law and thatit was bequeathed to brother-in-law. Whether plaintiff bid or notwe would have purchased unless the price went very high. ”
Counsel for the plaintiff maintains that the inference to be drawn fromthis evidence is that the defendant’s purchase at the sale was independentof the conduct of the plaintiff in bidding. The defendant was not there-fore induced to purchase by the conduct of the plaintiff. The latter, inthese circumstances, Is not estopped from denying the title of the defend-ant.
A number of authorities have been cited. In Ukku Banda v. Karupai ‘it was held that, in order to establish an estoppel by conduct by silence,the person who is sought to be estopped by reason of his silence must beproved to have intended to create a false impression on the person whosets up the estoppel and that he caused him thereby to do a particularact. The facts in this case were that a puisne incumbrancer, who was__ not bound by a mortgage decree, was present at the execution sale and wassilent. De Sampayo A.C.J. gave the judgment of the Court and heldthat in the circumstances of the case the defendant was not estoppedfrom asserting his title. In the course of his judgment, the learned Judgein referring to the conduct of the defendant says : —
“ Even assuming that she was among the circle of people who wereattracted to .the spot by the sale, it is quite certain that she was notthere as a bidder, nor did she say or do' anything to indicate to anyperson that she had no objection to the sale. She was in fact onlysilent, and it is contended on behalf of the plaintiff that she shouldhave made her claim to the land publicly. Now, this class of estoppel *
* 25 N.L. R. $04.
407
HOWARD C.J.—Tissahamy v. Perera.
by conduct is generally very difficult to apply. From all the decisionson the subject, two clear propositions emerge :(1) that the person
who is sought to be estopped by silence must be proved to haveintended to create a false impression on the person who sets up theestoppel, and (2) that he caused him thereby to do a particular act. ”In the present case the plaintiff was not only silent but bid twice, therebyindicating that he had no objection to the sale. In Rodrigo v. Karuna-ratne' it was held that, to establish an estoppel, it must be proved thatthe action taken by the party seeking to establish the estoppel wasdirectly connected with the false impression caused by the representationor conduct of the party sought to be estopped. The representation orthe conduct producing the impression must be, in .effect, an invitationto the person affected by it to do a particular act. But it need not beproved that the party sought to be estopped knew the truth about thefacts which he by his statement or his conduct misrepresented. In thecourse of his judgment in this case, Bertram C.J. cited with approval thefollowing passage from the judgment of Brett J., in Carr v. The London &North-Western Railway Coy ::—
•“Another proposition is that, if a man, whatever his real meaningmay be, so conducts himself that a reasonable man would take hisconduct to mean a certain representation of facts, and that it was atrue representation, and that the latter was intended to act upon itin a particular way, and he, with such belief, does act in that way to hisdamage, the first is estopped from denying that the facts were as sorepresented.”
The case of Caruppen Chetty v. Wijesinghe = is also very much in point.In this case the defendant was present at the Fiscal’s sale but deliberatelyrefrained from notifying his title to the purchaser. The Commissioner ofRequests, however, held on the evidnce that the defendant’s silenceon the occasion of the sale to the plaintiff was due to a deliberateintention on his part to deceive the plaintiff for his own emolument.Wood-Renton J. was not prepared to say that the finding was wrong.It was argued for the defendant that there was nothing to show that thedefendant’s silence was the proximate cause of the plaintiff’s purchase.Wood-Renton J. dealt with this argument in the following words: —
“ One has merely, I think, to ask the question whether if therespondent had disclosed his interest in the land, the appellantwould have purchased it as if it were an unencumbered property,in order to see the untenable character of this argument. ”
Wood-Renton J., in these circumstances, held that the defendant wasestopped from setting up his title against the plaintiff. In Fernando v.Fernando' it was held that it was essential, in order to create an estoppelby acquiescence, to show that the plaintiffs, knowing that a violation oftheir rights was in progress, stood by and so misled the first and seconddefendants. In this case there was no evidence of any silence or inactionon the part of the plaintiffs on any occasion when it was their duty to
assert their rights.
' 21 N. L. R. 360.
1 [1875) 10 C. P. 307.
3 14 X. L. R. 152.‘ 14 X. L. R. 155.
HOWARD G.J.—Tissahamy V. Perera.
408
Applying to the present case the principles formulated by the variousauthorities I have cited, the evidence proved that there was more thanmere silence on the part of the plaintiff. He actually made two bidsfor the property. Any reasonable person would take such conduct tomean that the plaintiff had no interest in the property. Was thedefendant intended to act upon it in a particular way, that is to say,by a purchase of the property ? The answer to this question is suppliedby the passage I have cited from the judgment of Wood-Renton J.Would the defendant have purchased if the plaintiff had disclosed hisinterest in the land? The substituted defendant also stated in re-examination that if plaintiff claimed the land or part of it the Fiscalwould not have sold it and that, by his bidding, he, the defendant, thoughtplaintiff admitted title of Pablis Appuhamy.
For the reasons I have given, I have come to the conclusion that theCommissioner came to a right decision. The appeal is, therefore,dismissed with costs.
Appeal dismissed.