054-NLR-NLR-V-17-WICKRAMANAYAKE-v.-ABEYWARDENE-et-al.pdf
Present : Pereira J. and Ennis J.WICXBAMANAYAKE v. ABEYWARDENE et al.
432—D. C. Matara, 5,716.
Agreement by B to convey land to plaintiff—Conveyance, by heirs of B toC—Action by plaintiff against the administrator of. B’s estate.and C and the heirs of B to cancel deed in favour of C and for. aconveyance in favour of plaintiff—Misjoinder—Issue as to fraudnecessary to impeach■ deed in favour of C.
B agreed to convey a certain parcel of land to plaintiff, but failedto .do so. After B's death his heirs conveyed the land to C. Plain-tiff sued C and. the administrator of the estate of B and the heirsof B, claiming that the conveyance by the heirs of B in favour ofC be cancelled, and that the administrator of the estate of B be.condemned to convey the parcel of land to plaintiff in specificperformance of B's agreement' with the plaintiff.
.Held, that there was no misjoinder of parties as defendants.
Hdd, further, that in order to impeach the deed by the heirsof B in favour of C on the ground that it was executed in fraud ofplaintiff, it was necessary that a specific issue involving the questionof fraud should .be framed.
HE facts are set out in the judgment.
A. St. V. Jayewardene, for appellants.
Bawa, K.G., for respondent.
. .Cur. adv. vidt.
February 26, 1914. Pereira J.—
The first defendant in this case is the administrator of the estateof one Don Bastian, deceased, and the plaintiff sues him -for thespecific performance of an agreement entered into by and betweenthe plaintiff and Don Bastian for the conveyance by the latter to theplaintiff of the land described in the 20th paragraph of the plaint.The plaintiff has joined the second, third, and fourth defendants
( 170 )
1914. as parties to the action, because the third and fourth defendants,•psRsiRA j who are the heirs of Don Bastian, have since the date of the agree-— ment referred to above conveyed the land, which was the subject of&greement» to the second defendant. The plaintiff claims in thisAbeywardene action a cancellation of the conveyance by the third and fourthdefendants in favour of the second defendant, as a preliminary tothe first defendant being condemned to execute a conveyance of theland referred to above in favour of the plaintiff. It has been arguedby the appellants' counsel that there has been a misjoinder ofdefendants. Now, it has been held by this Court that it is competentto the heirs of an intestate to convey property left by the intestate,although a conveyance by the heirs might be defeated by an adminis-trator subsequently appointed if he required the property for thepurposes of administration (Silva 'V. Silva *). There is no pretencein the present case that, the property in question is required by thefirst defendant for the purposes of administration. That being so,the present case is similar to a case by A against B and C claimingthat a conveyance by B in C’s favour be set aside, and that B becondemned to execute a conveyance of the property thus released infavour of A in specific performance of'an agreement between A andB prior to the conveyance of the land by B in favour of C, and asregards the objection as to misjoinder of parties, it will be less con-fusing to consider it with reference to this hypothetical ease. It isclear that no. conveyance can be executed by B in favour of A untilthe conveyance by B in favour of C is cancelled, because, as thisCourt has more than once laid down, under our law, even a fraudu-lent conveyance, unlike one executed by a person not competent tocontract, which on that account would be null and void, is operativeuntil it is set aside by an order of Court, and when it is set aside, thecancellation refers back to the date of the conveyance.
Now, with regard to the objection referred to above, three caseshave been cited: (1) Luckumeey v. Ookuda;z (2) Hoghton v. Money;'and (3) Tasker vt. Small.4 I do not think that any of these caseshas any application to the present case. In the present case the reacause of action is the execution of the conveyance by B in favou]of C. That conveyance deprived B of the power of conveyingthe land to A, and the object of the action primarily is to hav<that conveyance cancelled. For that purpose both B and C ar<properly before the Court. In Hoghton v. Money.3 it was held that ;purchaser could not, before completing his contract, enforce an;equities attaching to,the property against persons not parties to thcontract. There can be no doubt as to that, provided the situatioiis such that it is possible for the purchaser to complete his contractIn the present case B could not execute a conveyance in favour oA so long as B’s conveyance in favour of C remained uncancelled
* {1907) 10 N. L. R. 234.3 2 Ch. Ap. 164.
/. L. R. 5 Bom. 177.4 3 My. dr Cr. 63.
( 171 )
and .therefore it would have been nugatory for A to sue.B alone,,andunless A had title to the land from B he could not sue C and B for acancellation of the conveyance by the latter in favour of the former.That is the dilemma in which A would be if .the case of Hoghton v.Money 1 were applicable to the present case; but it will be seen thatthe defendants who were objected to in that case claimed under amere agreement prior to the agreement of which specific performancewas sought. The latter agreement dated 1864 was one between theplaintiff in that case and the defendant Cotton for the purchase of" the piece of land in question and Cotton's entire interest thereinwithout any reservation whatever, except as to- a disputed rightclaimed by the defendant Money in respect of a certain letjber ad-dressed to him by Cotton dated 1862. " The contention was that thislatter conveyed no title, and that it was null and void, and not thatit needed cancellation.. So that it was quite open to the defendantCotton to convey the land to the plaintiff, and for an order for thatpurpose the presence of Money as a defendant was not necessary.In the Indian case cited, the defendants who were objected toasserted to be entitled to merely a charge upon .the land in respect ofwhich a conveyance was claimed. As to when and how that chargecame into existence there is no precise information, and there isnothing to show that there was any obstacle .to the land beingconveyed to the plaintiff by the defendant against whom specificperformance was claimed. In Tasker v. Small3 it was held thatmortgagees of the property and persons who claimed an interest inthe equity of redemption could not be joined as defendants to anaction for specific performance. It is clear that in spite of suchinterests there was no objection .to the conveyance of the properlyby the principal defendant. As explained above, the situation thatwe are concerned with in the present case is different. We are hereface to face with the Bomah-Dutch law principle, .that a fraudulentdeed is operative until it is set aside, and so the first defendantcould tio$ possibly be condemned to execute a conveyance in theplaintiff^ favour until the conveyance by the third hnd fourthdefendants in favour of the second defendant was cancelled. Itherefore think that the objection to the action .on the ground ofmisjoinder cannot be sustained.
The next question in the case is whether the plaintiff has shown. himself entitled to a cancellation of the deed of conveyance executedby the third and fourth defendants in favour of the second defendant(deed No. 784, dated July 16, 1910). From two of the cases citedin the course of the argument—Matthes v. Raymond 3 and Appvkamyv. Boteju 4—it would appear that where one conveys land to a personwhich he had already agreed to convey to another, he thereby placeshimself beyond the power of specifically performing his agreement
*{1896)'2N. L. R. 270.*{1908) U.N.L. R. 187.
2 Ch. Ap. 164.
3 My. <fe Cr. 63.
1914.
PeREIBA J;
Wickrama-nayake v.
Abeywarden
1914.
Bbkexra J.
'fPickraina-nayake v.Abeywardene
( 172 )
with the latter; but, clearly, under the Roman-Dutch law ""fraudvitiates every contract, and if the latter of the two deeds could beshown to be fraudulent, ’ it would be cancelled, and the way paved forthe specific performance of the former. So that the main questionin the present case is whether deed No. 784 was executed’ in fraudof the plaintiff. No such issue was expressly framed, but we areasked by the plaintiff's counsel to infer fraud from the facts proved.He has contended that the attitude taken up by the plaintiff wa6that the deed was fraudulent, and that the tenth issue in the case istantamount to an issue of fraud. I do not think that the passagescited by him from Story on Equity apply to a case like this. Theissue framed in spite of objection was whether the second defendantwas a bow fide purchaser for value, and the District Judge has heldthat .the second defendant “made a collusive purchase but merecollusion or lack of bona fides does not necessarily amount to.fraud,A person may take unfair advantage »of a particular situation andact accordingly, but his action may, nevertheless, not be fraudulent.Whatever is dishonourable is nojb necessarily dishonest in the eye ofthe law. I think that the parties should clearly understand theissue before them and then proceed to trial thereon. I would setaside the judgment, and direct .that the following issue be framed andtried in lieu of issue No. i0.;—Did the third and fourth defendantsand the second defendant act collusively and with intent to defraudthe plaintiff in the execution of deed No. 784, dated July 16, 1910?—the plaint being amended accordingly (see Ratwatte v. Owen l). Ithink that the District Judge- should deliver judgment de novo inaccordance with his decision on the above issue and the decisionsalready recorded by him on issues 1 to 9, except so far as thosedecisions may be affected by his decision on the new issue framed.
I think that all costs should abide the event.
Ennis J.—3 agree..
Senitbach.
» 0896) 2 N< L. R. HI.