WASS v. SAMARANAYAKE

003-NLR-NLR-V-19-WASS–v.-SAMARANAYAKE.pdf


( 25 )
[Full Bench.]
Present: Wood Benton C. J. and Shaw and De Sampayo JJWASS «. SAMABANAYAKE.
f
413—D. C. Chilaw, 5,057.
Ratification—Person executing a conveyance in his own name—Ratifica-tion ofconveyanceby athirdparty—Chetty- _ traders—Fiscal's
conveyance in favour of one pattner—Rights of other partners.
j
One Sapramaniam Chetty, who was a partner of a firm of Chettytraders, sued on a mortgage bond and obtained a decree in his namein March, 1900. InOctober, 1900,Supramaniam Chetty assigned
to his co-partners all his share in the partnership assets, and grantedto them jointly and severally a power of attorney to enable Miemto recover or deal with his separate share. In l901 Supramaniambought the land under the decree.
In 1907 Murugappa Chetty (one of Supramaniam's partners)conveyed the land to plaintiff.
– • In February, -1914, Fiscal's transfer was granted to SupramaniamChetty. 1
1November 11, 1915.
I 28 )
1916.
lfasa v.
Samara-
nayake
On November 17, 1914, Supramaqiain Chettyratified the con-
veyance to plaintiff by Murugappa Chetty.
Plaintiff instituted this action fordeclaration of title in June,
1914.
Held, that plaintiff had no title at the date of action.
Held further, that no ratification was possible in this case, asthe conveyance from Murugappa Chetty did not purport to he on?behalf of Suprainaniam Chetty.
*' A contract cannot be ratified by a third party, so &9 to enablehim to sue or make him liable to be sued on it where the personwho made the contract did not profess at the time of making it, to be acting on behalf of a principal. ”
FJ1HE facts are fully set out in the judgment,
A. St. V. Jayewardene, for second defendant, appellant.
Bawa, K.C., and Sansont, for plaintiffrespondent.
'Cyr. a(h *vult.
January 27, 1916. Wood Renton C.J.—
This case was referred by my brothers Shaw and De Sampayo toa Bench of three Judges for the determination of a question as tothe effect on their respective titles of an omission on the part oftwo mortgagees to supply addresses for service to the Registrar ofLands, in accordance with the requirements of sections 642 et seq.of the Civil Procedure Code. The decision of that question has,however, become unnecessary in this appeal, as it seems clear that'the titled of the plaintiff -respondent to bring the action fails onanother ground.
The action is one for declaration of title ,to a land originallybelonging to Elaris Samaranayake, the husband of the firstdefendant, Menahamy. They were married in community, and onAugust 11, 1893, made a joint will, of which the survivor wasappointed executor or executrix. Don Elaris died on August 31in the same year. By mortgage bond No. 2,116 dated August 27,1895, Marihamy, as executrix of her husband, borrowed fromSidambaram and Letchiman Chetties, traders at Madampe, a sum ofRs. 1,100 in order to pay debts due by the estate, and hypothecatedthe land in dispute as security. The mortgagees put thk bond insuit on November 3, 1899. Summons issued on December 1.5, 1899.Decree was obtained on June 1, 1900. On February 27, 1904, itwas assigned to D. J. Amaresekera. The Fiscal’s sale under thedecree was held on February 28, 1905. On October 7, 1908, Amare-sekera obtained his Fiscal’s conveyance, and on November 9, '1912,he transferred the property to the second defendant, the appellant,Marihamy’s son. In the meanwhile a collateral series of dealingswith the land, also initiated by Marihamy, had been in progress.On March 7, 1899, she executed—again for the payment of debts
( 27 )
of the estate, although without express reference to her, powers asexecutrix—a secondary mortgage of the property in favour ofSupramaniam Chetty and his three partners, Karuppan, Arunu-salam, and Murugappa Ghetties. Supramaniam Chetty put thebond in suit on December 21, 1899, and obtained deoree on March22, 1900. The Fiscal’s sale was held on January 8, 1901, but noFiscal’s transfer was at that stage taken out. On October 7, 1900,Supramaniam Chetty assigned for valuable consideration his entireinterest in the firm to his remaining partners, constituting each ofthem his attorney for the purpose of effectuating the transfer. OnDecember 16, 1913, and again on April 27, 1914, Murugappa Chetty,by Ramen Chetty, who held a power of attorney from him datedApril 4, 1907, conveyed the land to the plaintiff. These deeds wereratified by a conveyance dated November 20, 1914, from Supra-maniam Chetty himself, who had taken out a Fiscal's transfer onFebruary 6, 1914.
At the date of the successive conveyances by Murugappa Chettyto tiie plaintiff no Fiscal’s transfer had been obtained, and there-fore Murugappa Chetty bad no title to convey. The plaintiff’scounsel, however, strongly relied on Supramaniam Chetty *s deed ofratification. It is clear that Supramaniam Chetty could not ratifyMurugappa Chetty’s conveyances unless Murugappa Chetty at- thedate, and in the matter, of those conveyances was acting as Supra-maniam Chetty’r agent. The plaintiff’s counsel contended thatSupramaniam Chetty’s deed of October 7, 1900, merely put hisremaining partners in the first instance in a position to enforce thedecree against Marihamy as his agents, and that the properly boundby that; decree would not become theirs till it had actually beenrecovered. In his conveyances to the plaintiff Murugappa Chettywas therefore only purporting to pass Supramaniam Chetty’s title.
In my. opinion the deeds in question will not bear that construc-tion. In his deed of October 7, 1900, Supramaniam Chetty, forvaluable consideration, divested himself of all further interest in theproperty of the firm. The language of the deed clearly shows thathis sole object in constituting his three partners to be his attorneyswas to enable them to recover whatever portions of that propertymight be outstanding "for their own absolute use and benefit,"and Murugappa Chetty in his subsequent deed is as clearly purportingto act as principal. On these grounds I agree with my brothersthat; the plaintiff’s action fails, and I coneur with t.he order thatthey have proposed.
Shaw J.—
The plaintiff, who is the respondent in this appeal, sued fordeclaration of title to certain land called. Madangahawatia,claiming title as transferee of the right acquired by one SupramaniamChetty under a Fiscal’s transfer dated February 6, 1914.
1916.
WoodRkntox C,
Woes v.Samara-rtayake
( 2S )1916
Shaw J.
Waaa v.Samara-*iayake
The second defendant claimed to be entitled to the same' land,,founding, his title on a Fiscal's transfer obtained by one Juan:AmareBekera dated October 7, 1908.
The District Judge has found in favour of Idle plaintiff, and declaredhim to be entitled to the land, and from his decision the present.
* appeal is brought.
The issue raise several interesting questions of law and fact, the-majority of which it is unnecessary to deal with, because the firstobjection taken to the plaintiff’s cause of action appears to me to*be fatal to it.
The plaintiff's alleged title is as follows: —On March 7, 1899, oneMarihamy, who was the widow and executrix of H. E. Samara-nay ake, the owner of the land in dispute, mortgaged it +o one S. K. B.Supramaniam Chetty as security for a sum of money borrowed'from a firm of Chetties, of which Supramaniam was a. member.
On December 21, 1899, Supramaniam Chetty instituted a suit onthe mortgage bond and obtain a decree on March 22, 1900.
On October 7, 1900, Supramamam Chetty assigned to his co-partners all his share in the partnership assets, and granted to them-jointly and severally a power of attorney to enable them to recoveror deal with his separate share.
On January 8, 1901, the Fiscal sold the land under the mortgage-decree, and it was bought by the plaintiff in the mortgage suit,Supramaniam Chetty.
On April 4, 1907, Murugappa Chetty, one of Supramaniam Chetty'spartners, granted^ a general power of attorney to K. P. Bamen Chetty,and on December 16, 1918, Bamen Chetty as such attorney conveyedthe land in dispute to the plaintiff in this suit.
On February 6, 1914, the Fiscal’s transfer to effectuate the saleof January 8, 1901, was granted to Supramaniam Chetty, and onApril 27, 1914, Bamen Chetty, as attorney of Murugappa Chetty,again conveyed the land to the plaintiff.
On June 26, 1914, the plaintiff instituted the present suit claimingtitle to the land.
The second defendant having put in an answer challenging the. right of Murugappa Chetty or his attorney Bamen Chetty to convey<Supramaniam Chetty, on November 17, 1914, executed a power ofattorney to one Vellayapillai, for the purpose of authorizing him toratify the conveyance of the land by Bamen Chetty as Murugappa’sattorney to the plaintiff, and on November 25, 1914, Yellayapillaiaccordingly as such attorney by deed purported to ratify the saidconveyance.
am clearly of opinion that at the time the plaintiff brought thisaction he had no legal title to the land. According 'to his ownshowing the title was' in Supramaniam Chetty. The decree onwhich the sale took place was a personal judgment in favour- -of-
( 29 )
Supramaniam, and not one of his firm (see Somasundefam C hefty v.Arunasalem Che tty1), and the sale and the Fiscal's transfer underthe decree were to Supramaniam Chetty personally, and the legaltitle was in him, whatever equitable rights his partners may havehad against him in respeot of .the transaction. The transfer, there-fore, by him of October 7, 1900, to his partners of his interest in thefirm property conveyed no legal title to this land, even if he couldhimself be said to have had any at the time, he not having obtaineda transfer from the Fiscal. This being so, neither Murugappa orhis attorney Bamen could convey title to the plaintiff.
It was then argued that the ratification after'action brought bySupramaniam, through his attorney Vellayapillai, of the conveyancefrom Murugappa conferred title on the plaintiff, and related backto the date of the conveyance, and the case of Mohamado Tamby v.Kiduru Mohamado2 was cited in support of the contention.
But although there may, as is shown by that case, under someCircumstances, be a ratification after action brought which willrelate back and give a good title to the plaintiff at the time ofbringing the action, that will not assist the plaintiff in the presentcase, because no legal ratification by Supramaniam Chetty waspossible.
The conveyance by Murugappa, through' his attorney Bamen, didnot purport to be on behalf of Supramaniam or any other principal,but purported to be a conveyance by the vendor Murugappa person-ally, and it is clear that a contract cannot be ratified by a third party,so as to enable him to sue or make him liable to be sued on itwhere the person who made the contract did not profess at the timeof making it to be acting on behalf of a principal. KeighleyMaxstead & Co. v. Durant.9 The Doctrine of ratification, asstated by Tindal C.J. in Wilson v. Tumman4 and cited withapproval in the last-mentioned case, is as follows:—“ An act done,for another, by a person, not assuming to act for himself, butfor such other person, though without any precedent authoritywhatever, becomes the act of the principal, if subsequently ratifiedby him ”.
The eonveyance in the present case not being on behalf of Supra-maniam Chetty cannot be ratified by him. The plaintiff, therefore, ■shows no legal title to the land in dispute.
I would allow the appeal, with costs.
De Sampato J.—
The land Madangahawatta in claim belonged, to Elans Samara-nayake. He died on August 31, 1893, having made his last wil dated
(1914) 17 N. L. R. 257.* (1901) A. C. 240.
9 S. C. C. 114.* 6 Af. & G. 342.
1916.
Shaw J.
v.
Samara*twyake
1916
Dk Sampayo
J.
Woes v.-tSamara-nayake
( 30 )
August 11, 1893, by which he appointed his wife, the first defendant,as executrix. The first defendant, as such executrix, by bond datedAugust 27, 1895, and registered on September 6, 1895, mortgaged thesaid land to Sidambaram Chetty. She also by bond dated March 7,1899, and registered April 17, 1899, mortgaged the same land toSupramaniam Chetty. This latter bond appears from itB terms to be,and may for the purpose of this appeal be, .regarded as having beengranted by the first defendant in her representative capacity and asbeing a secondary mortgage. On November 3, 1899, SidambaramChetty sued the first defendant on his primary mortgage in the actionNo. 2,028 of the District Court of Chilaw. and obtained a decree,which he by deed No. 23,754 dated February 27, 1904, assignedto one Juan Amarasekera. The latter substituted himself asplaintiff on the record and issued writ of execution, and had theland sold on February 28, 1905, and purchased it himself. Havingobtained a Fiscal’s transfer dated October 7, 1908, and registeredon February 24, 1912, he sold the land to the second defendantby deed dated November 9, 1912, and registered on. December3, 1912.
The plaintiff claims the land against the second defendant underthe following circumstances, and sues both the defendants in eject-ment. Supramaniam Chetty put his secondary mortgage bondin suit against the first defendant in the action No. 3,608 of theDistrict Court of. Negombo on December 21, 1899, and under thedecree, entered therein the land was sold on August 8, 1901., and waspurchased by himself. No Fiscal’s transfer was, however, issuedIn his favour till February 6. 1914. It appears that Supramaniam‘Chetty belonged to a firm of Chetty traders, and had invested themoney of the firm in the bond granted to him by the Srst defendant,and on his retirement from the firm he by deed dated October 7,1900, assigned all his interest in the property of the firm to his•co-partners. There was no specific, assignment of the claim ordecree in D. C. Negombo, No. 8,608, but on December 16, 1913, bywhich date the land had, as above stated, been sold under writ andpurchased^ by Supramaniam Chetty himself, one Muvugappa Chetty,who was the only member of the firm then in Ceylon, consideringhimself entitled to the land as purchaser, purported to sell it to theplaintiff. Then, after the Fiscal’s transfer had been issued, Muru-gappa Chetty, by deed dated April 27, 1914, confirmed, his own saleto the plaintiff. But it was apparently soon perceived that as theFiscal’s transfer had been made out in the name of SupramaniamChett-y any confirmation of the sale should proceed from him, andiiob from Murugappa Chetty, and accordingly Supramaniam Chetty,by deed dated November 20, 1914, ratified Murugappa’s deed ofsale.and further assured the. land to the plaintiff. I may add that,•In view of the law as to the effect of a conveyance to one member ofa Chetty firm with the initials of the firm prefixed (see Sorrtastinderam
( 81 )
Chettyv.Arunasalem Che tty1), Murugappa Chetty could not
depend-for his title directly upon the Fiscal's transfer in favour db Sakpayo
of Supramaniam Chetty.J-
At the argument of the appeal the question principally discussed Waasv.was astothe effect of the sales under the two mortgage decrees,nayake
neitherofthe mortgagees having registered an address or having
been made party to the other's action, and in view of the decisionsin Sebastian Perera v. Jusey Per era2 and Elyatamby v. Valliamma8it was thought desirable to refer the case to a Bench of three Judges.
But at the argument before the Full Bench it became unnecessaryto go into the above question, for it appeared clear that at the dateof the action the plaintiff had no title, as he could not depend on theratification executed by Supramaniam Chetty. I agree with therest of the Court on that point, and I need only deal with theissue of fraud which the plaintiff .raised as affecting the defendant’stitle.
It appears that Juan Amaresekera is son-in-law of the first defend-ant and brother-in-law of the second defendant. SidambaramChetty, in addition to his claim on the mortgage decree in actionNo. 2,088, had three other mortgage decrees against the first defend-ant, obtained by him in actions Nos. 2,029,2,081, and 2,035. Thoughthe total amount due on all the decrees was B&. 8,300, SidambaramChetty appears to have agreed to accept , a sum of Bs. 4,000 in full'settlement. The first defendant, in order to raise money for thepayment of this amount, sold certain lands for Hs. 2,000 to JuanAmaresekera, who undertook to pay the same to SidambaramChetty. Juan Amaresekera paid that sum to Sidambaram Chettyon February 27, 1904, and obtained a full discharge in favour of thefirst defendant in respect of the claims in actions Nos. 2,029 and2,031, but on the same day, as above stated, he obtained an assign-ment of the decrees in actions Nos. 2,028 and 2,035 in considerationof a further sum of Es. 2,000, The plea of fraud is founded on theallegation that the first defendant had intended to pay off all thedebts due to Sidambaram Chetty, in which case SupramaniamChetty’s mortgage on the land in question would have been moresecure, that with that view she funished the further sum of Bs. 2,000to be paid to Sidambaram Chetty, but %hat by collusion among theparties concened Juan Amaresekera, instead of obtaining a discharge■of the decree in actions Nos. 2,028 and 2,031, procured an assignmentof them. The District Judge has sustained this plea, and has heldthat the assignment was ‘f null and void as against the plaintiffI cannot see how the facts above stated amount- to fraud, and muchless how Supramaniam Chetty or those claiming under him can besaid to be affected by if. Even if the first defendant had intended
* (1914) 17 N. L. R. 257.* (1910) 14 N. L. R. 20.
(1913) 16 N. L. R. 210.
C 32 )
1916.
Du SaaepayoJ.
Wass v.Samara-
naj/ake
to pay off the mortgage in favour of Sidambaram Chetty, there wasnothing to prevent her from changing her mind and allowing JuanSamaresekera to take an 'assignment. Supramaniam Chetfy wasnot a party to the arrangement, nor, so far as the evidence dis-closes, was he even aware of it. The first defendant was under no
r
obligation to get Sidambaram Chetty’s mortgage out of the wayand thus improve Supramaniam Chetty’s security by theassignment of the decree in action No: 2,028 to Juan Amaresekera,Supramaniam Chetty was in no worse position than he had beenbefore. In my opinion there is no ground for holding that therewas any fraud in the legal sense, whereby the second defendant’stilde can be said to be vitiated in competition with that of theplaintiff.
I think the judgment appealed against is erroneous, and thisappeal is entitled to succeed. I would set aside the decree of theDistrict Judge and dismiss the plaintiff’s action, with costs inboth Courts.
Appeal allowed.