( 212 )
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
UKKU v. RANKIRI et al.
D. C., Kandy, 17,688.
Estoppel by the deed—Notarial instrument—English Law—Estoppelby
conduct—Evidence Act, ss. 100 and 115,
The English Law of estoppel by deed does not apply to Ceylon.
A notarially attested instrument in Ceylon is not equivalent to a deedunder seal under the English Law.
Don Comelis v. Manuel Perera 1 and Tissera v. Tissera 2 referred to,
PPEAL from a judgment of the District Judge of Kandy. Thefacts sufficiently appear in the judgments.
Van Langenberg, for the plaintiff, appellant.
W. Pereira, K.C., S.-G., for the defendants, respondents.
Cur. adv. vult.
March 26, 1908. Hutchinson C.J.—
This is an appeal by the plaintiff from a judgment dismissing theaction as regards some of the lands claimed.
The plaintiff says that Sundara, her husband, died in June, 1898,being the owner by purchase of the lands described in the plaint;that she, as his widow, is entitled to the possession of the lands forher life; that the defendants have since 1901 been in the wrongfuland forcible possession of the lands, and she asks for a declarationof her title, and for possession, and for mesne profits and damages.
The defendants in their answer say that they cannot identifymost of the lands described in the plaint, but that they believe thatthe plaintiff claims some of the lands described in a deed of August24, 1901,. and in the schedule to the answer; and they disclaim titleto and deny their possession of one of the lands mentioned in theplaint. With regard to the lands described in the schedule to theanswer, they say that Sundara was the owner of them by paternalinheritance and not by purchase, and died possessed of them, andthat the plaintiff took out letters of administration to his estate,and that as administratrix she by the deed of August 24, 1901,conveyed the said lands, as ithe paraveni property of the intestate, tohis sister and next of kin and heir-at-law, the first defendant, Rankiri,who has since been in lawful possession of them by virtue of the said
i Ram. (1851) p. 161.2 (1896) 2 N. L. R. 238.
( 213 )
deed. They say that the plaintiff is estopped by the deed from
denying that the lands were the paraveni property of Sundara, and
.that she is estopped from claiming any interest in the lands after Hutchutsoushe had so transferred them. And the second defendant disclaimstitle to the lands, and says that he is the son of the first defendant.
Two preliminary issues of law were settled, the first of which was—
Is the plaintiff estopped by her deed of August 24, 1901, fromdenying that any of the lands affected by that deed were portionsof the paraveni property of Sundara?” The District Judge heldthat she was estopped, and dismissed the action so far as the landsin Schedule A of that deed were concerned, with liberty to theplaintiff to continue the action as to any lands not covered by thatdeed.
By the deed of 1901 the plaintiff recites that Sundara was bypaternal and maternal inheritance entitled to the lands describedin Schedule A; that he died on June 5, 1898, and administration tohis estate was granted to her on November 10, 1898; that he lefthis sister Bankiri as his sole heiress, on whom devolved all hisparaveni property; and that .the administratrix had been calledupon to convey to his said heiress the said paraveni lands and toclose the estate, and she accordingly conveys the said lands toBankiri.
The plaintiff does not say that this deed was executed under anymistake of fact or of law; she does not ask to have any mistakerectified; but she" treats the conveyance as a nullity, arguing thather life interest in the land vested in her on her husband’s death,and that no conveyance of it to her by the administratrix wasnecessary, and that the conveyance by the administratrix to anotherperson was ineffectual as against her. ' She has, however, since thisaction commenced, obtained from herself as administratrix a con-veyance to herself personally of a- life interest in the lands claimedin this action.
The District Judge held that the law to be applied is the English,
Law under the reservation in section 100 of the Evidence Ordinance,and that the plaintiff was estopped by the deed. I do not thinkthat the question of estoppel is one which is not provided for bythe Ordinance; I think it is provided for by section 115, and thatthe English Law of estoppel by deed does not apply. And even ifit did apply, even if all these transactions had taken place in England,and this issue was being tried in England, there would be no estoppelby deed, because the conveyance of 1901 is not a deed. Peoplehere often apply the word “ deed ” or “ bond ” loosely to instrumentswhich have some resemblance to an English deed or bond; but whenit comes to applying a rule of English Law, which in England itselfonly applies to that which is strictly and technically a “ deed,” itcould not be held to apply in Ceylon to an instrument to which itwould not apply in England.
( 214 )
1908. On the appeal it was also contended for the defendants that evenMarch 26. if the plaintiff was not estopped by the deed, she was estopped byHutchinson h0r conduct, by virtue of section 115 of the Evidence Ordinance.
C.J. The plaintiff says that it was not she who made the transfer of 1901,but the administratrix, and that she is in the same position as if theadministrator who made it had been some third person. Counselfor the defendants replied ^hat the plaintiff personally stood byand allowed the representation to be made, upon the faith of whichBankiri acted; that Bankiri (as the deed shows) demanded theconveyance and accepted it, and that her position was therebychanged, because she might otherwise have sued for possession ofthe land, whereas now possibly, after five years, some of the evidencewhich she might have obtained may be no longer available. Thisdefence was apparently indicated in paragraph 7 of the answer;it may possibly be good if it is proved, but there is no evidence atpresent upon which we can adjudicate upon it.
In my opinion the ruling of the District Judge was wrong; thedecree should be set aside, and the case should go back to theDistrict Court for settlement of issues and trial.
The plaintiff, a Kandyan woman, as the widow of one SundaraDuraya, deceased, seeks to recover from defendants. certain lands,which, she says, were the acquired property of Sundara, and inwhich therefore, by the Kandyan Law, his widow has a life interest.The first defendant is the sister of Sundara, and his sole heiress inrespect of his paraveni or inherited lands. The plaintiff in Novem-ber, 1898, obtained letters of administration to her husband’sestate. On August 21, 1901, by a notarial deed No. 4,426, she assuch administratrix conveyed to first defendant a large number oflands,' including some at least of those claimed in the action. Thisdeed recited that Sundara was by paternal and also by maternalinheritance seized and possessed of or otherwise well entitled to thelands; that he died intestate, and administration was granted tothe plaintiff, his widow; that he left surviving him his sister, thefirst defendant, his heiress-at-law, on whom devolved all his paraveniproperty; and that the administratrix had been called up toconvey to the said heiress the said paraveni lands. The deed thenproceeded in consideration of the premises to convey, transfer,assign, and assure to first defendant, her heirs, &c., the said landsto have and to hold for ever.
In their answer the second defendant, who is the son of the first,disclaimed all right, and the first defendant, admitting possessionof the lands comprised in the deed, pleaded title to them by inherit-ance from Sundara and under the deed. She also pleaded asmatters of law (1) that plaintiff was by her deed estopped from
denying that the lands were the paraveni property of Sundara,and (2) that plaintiff could not assert her right to a life interestwithout a conveyance thereof to her from the legal representativeof Sundara.
On the trial day the only issues framed were two issues of law,viz.: —
Is the plaintiff estopped by her deed No. 4,426 of August 21,
1901, from denying .that any of the lands affected bythat deed were portion of the paraveni property ofSundara, deceased?
Whether the plaintiff can maintain this action, in that she
had not at the date of the answer obtained a deed fromthe administratrix of Sundara’s estate for the lands inclaim.
The learned District Judge decided the first issue in favour of thedefendants, and therefore considered it unnecessary to deal with thesecond.
It would appear from the District Judge’s notes of the argumentthat the estoppel relied upon by the defendants was what is knownin England as an estoppel by deed, it being contended that anotarially attested instrument in Ceylon was, for this purpose, on thesame footing as a deed under seal in England. The only authoritycited for this contention was the dictum of Bonser C.J. in thecase of Tissera v. Tissera,l where the question Was whether aninstrument calling itself a debt bond executed in triplicate beforea notary and two witnesses, whereby the person executing itacknowledged to have borrowed from the person in whose favour itwas executed a certain sum of money and promised to pay him thesame with interest on demand, and whereby also he bound all hisproperty generally as security for the debt, was a “ bond conditionedfor the payment of money ” within the meaning of section 6, or wasa promissory note or written promise within the meaning of section 7of “ The Prescription Ordinance, 1871. ” That case is not anauthority for saying that for the purpose of an estoppel a notarialinstrument is equivalent to a deed under seal. See the case ofDon Comelis v. Manuel Perera2 which was apparently a caseupon a notarial instrument. The District Judge upheld thecontention of the defendant. He said:“ Here we have formal
attestation before a notary, which takes the place of attestationunder seal in England, and there is nothing that I am aware of inthe Boman-Dutch Law which would justify me in holding that anestoppel by deed is not applicable to deeds in this Colony, even ifthe Boman-Dutch Law applies. But the law to be applied is not,in my opinion, the Boman-Dutch Law, but English Law underthe’ reservation contained in section 100 of the Evidence Ordinance.
1 (1896) 2 N. L. R. 238.* Ram. (1851) 161.
C 816 )
1 am of opinion that the plaintiff is by English Law estopped byher deed from denying that the lands mentioned in the schedule tothat deed were the paraveni property of her husb'and Sundara.
Mr. Solicitor, who appeared for the respondents, did not argue insupport of this view of the estoppel, beyond quoting the case ofTissera v. Tissera, but he argued that by reason of the provisionsof section 115 of the Evidence Ordinance the plaintiff was estoppedby her conduct relative to the execution by herself in her capacityof administratrix of the deed in question. That is to say, he arguedthat plaintiff by standing by and seeing herself as administratrixexecute and deliver the deed to the first defendant, with the recitalthat the lands were the paraveni property of Sundara, and hadtherefore devolved ab intestato on the first defendant, had by suchconduct intentionally caused the first defendant to believe that thelands were such paraveni property, and to act upon such belief,and that plaintiff was therefore precluded by section 115 fromdenying the truth of the representation so made by her. This is anestoppel which was neither pleaded nor tried. What was pleadedand tried was the estoppel by the mere statement in the deed underthe hand of the plaintiff. On the footing.upon which the case wasput in appeal, it is necessary for the defendants to show, besides theconduct of the plaintiff amounting to the representation alleged,two other facts at least, viz., that the first defendant believed .thatrepresentation to be true, and that she acted upon it. I .think thatin a case like the present .these elements of the estoppel at least shouldbe embodied in issue and tried as matters of fact. I would,therefore, set aside the order appealed against and send the caseback for a new trial. The plaintiff will have her costs of appeal,but the costs in the District Court will be costs in the cause.
Appeal allowed; case remitted.
UKKU v. RANKIRI et al