146-NLR-NLR-V-45-WIJEYESURIYA-Appellant-and-SAMARASURIYA-Respondent.pdf
TVijeyesuriya and Samarasuriya.
529
1944Present: Howard C.J. and de Krefcser J.WIJEYESURIYA, Appellant, and SAMARASURIYA,
Respondent.
250—D. C. 'Tangalla, 4,783.
Estoppel—Fiscal's sale—Presence of party at saleandremaining silent—
No evidence of intention to create a false impression.
Me re presence at a sale of property, without claiming it, is not sufficientto create an estoppel against a person. There must be evidence thatthe person sought to be estopped by reason of his silence intended tocreate a false impression on the person who sets up the estoppel andinduced him to bny.
A
PPEAL from a judgment of the District Judge of Tangalla. Thefacts appear from the argument.
N. E. Weerasooria, K.G. (with him E. B. Wikremanayake), for theplaintiff, appellant.—This is a case of competition between two deeds oftitle derived from the same source. The plaintiff claims the propertyin question under a deed of February 26, 1941, and the defendant claimsit by virtue of a Fiscal’s transfer of June 19, 1941, made in pursuance of asale which was held in execution against the plaintiff's vendors onFebruary 27, 1941. It is clear on the evidence that the plaintiff, althoughhe was present at the Fiscal’s sale, did not bid. The question is whetherhis mere presence and silence at the sale can create an estoppel. Toestablish an estoppel the person who is sought to be estopped by silencemust be proved to have intended to create a false impression on theperson who sets up the estoppel. The onus in the present case was on thedefendant to prove by affirmative evidence that the plaintiff’s presenceaud silence at the sale misled him and induced him to buy. He has not,however gone intothewitness-box and givensuch evidence.The
recent ease of Tissahamy v. Perera'1 contains a review of all the relevantdecisions. See particularly Rodrigo et al. v. Karunaratna et al.1 2 andUkku Banda v. Karupai et al.3.
N. Nadarajah, K.G. (with him S. W. Jayasuriya), for the defendant,respondent.—It was not necessary for the defendant to have givenevidence personally.Tneplaintiff was presentatthe sale but didnot
raise any objectionsto the sale. He stoodbywithout claimingthe
property as his. The trial Judge has also found that he bid at the sale.Even assuming thatthisfinding is incorrect,themere fact thatthe-
plaintiff stood by without protesting is sufficient to create an estoppel.The guiding principle is that if I sea a man acting in derogation of myrights without knowing that I have any. I am bound to tell him of them—Garuppen Chetty v. Wijesinghe*; Gunasckera v. Dissanayake5; Sapara-madu v. Saparamadu6; Rodrigo et al. v. Karunaratna et al. (supra).
AT. E. Weerasooria, K. C., replied.
Gut. adv. vult.
1 {1942) 43 N. L. R. 405.
* {1920) 21 N. L. R. 360.
3 {1923) 25 N. L. R. 204.
11910) 14 N. L. R. 152.{1912) 16 N.L . R. 123.(1918) 20 N. L. R. 369.
530HOWARD C.J.—Wijeyeauriya and Scumaraauriya.
October 25, 1944. Howard C.J.—-
The defendant in this case claims the property in dispute by virtueof a Fiscal's transfer No. 6,115 of June 19, 1941. The defendant becamethe purchaser of the said property at a sale held in execution against twopersons, Andirishamy and Bnsohamy, on February 27, 1941, for the reeovervof costs in a partition case. On February 26, 1941, by deed No. 1,454,Bnsohamy and Andrishamy sold the said property to the plaintiff. Onthe same day the transfer of the property was- registered in the LandRegistry. The defendant is in forcible possession of the. property and'the plaintiff has brought this action praying that he be declared entitledto the said land, that the defendant be ejected therefrom and that he beplaced in possession thereof. The plaintiff also claims damages atIts. 120 and a further Rs. 15 per month from the date of action untilplaced in possession. The defendant pleaded that the plaintiff’s deedexecuted a day before the sale in excution by the Fiscal was a fraudulent-deed. Further, that the plaintiff was present at the sale Tn executionand allowed the interests of the grantors to be sold without any protest,and thus as a matter of law was estopped from denying the validity ofthe defendant’s purchase. The learned Judge has accepted the evidenceof certain witnesses, who gave evidence on behalf of the defendantrthat the plaintiff was present at the Fiscal’s sale and got a certain personcalled Abeywickrama, also a witness, to bid for him. He has also heldthat, although the plaintiff gave consideration for the land, he hadconcealed his title in circumstances amounting to fraud. He was, there-fore, estopped from setting up title to the said property and his deed was'null and void.
Jn coming to the conclusions he did, the learned Judge seems to have-been very much influenced by the fact that two of the witnesses whotestified on behalf of the defendant were Proctors. Mr. Jayewiekremewas the Proctor for the plaintiff in the partition proceedings and hadseized the property in execution for costs due to him and the defendant’sProctor in such action. In giving evidence he stated that the plaintiffcame to him a few days after the sale and told him he had bid at the salebut his (Mr. Jayewickreme’s) clients would not allow him to buy. TheFiscal’s officer also gave evidence on behalf of the defendant and statedhe was present at the sale and the bids were recorded. This witnessalso stated that the plaintiff put in bids. In cross-examination thiswitness admitted that he did not write plaintiff’s name among the bidders,but the latter had asked Abeywickrama to bid. The plaintiff deniedthat he bid at the sale or was present or that he instructed Abeywickramato bid on his behalf. Abeywickrama also gave evidence and statedhe wa? present at the sale and purchased another lot in his own behalf.This witness denied that he bid of was instructed to do so on the plaintiff’sbehalf. In view of the fact that the plaintiff’s name does not appearin the list of bidders, it is not proved that he bid at the sale. Mr. Jaye-wiekreme stated that he did bid, whilst the Fiscal’s officer on the otherhand stated that Abeywickrama bid on his behalf. In view of thisconflict of evidence. I think that the learned Judge was wrong in holdingthat a bid was made on his behalf by Abeywickrama. Mere presence at a
HOWARD C. J.— Wijeyesuriya and Samarasuriya.
531
sale and remaining silent is not sufficient in law to create an estoppel.The principles relating to estoppel were formulated by Brett J. inCarr v. ’ The London and North Western Railway Company1, in thefollowing passage: —
“ One such proposition is, if a man by his words or conduct wilfullyendeavours to cause another to believe in a certain state of things whichthe first knows to be false, and if the second believes in such state ofthings, and acts upon his belief, he who knowingly made the falsestatement is estopped from averring afterwards that such a state ofthings did not in fact exist.
Th*e present ease cannot be brought within that proposition, becauseit is not pretended that there was any statement or conduct false to theknowledge of the defendants or any of their servants.
Another recognized proposition seems to be that if a man either inexpress terms or by conduct makes a representation to another ofthe existence of a certain state of facts which he intends to be actedupon in a certain way, and it be acted upon in that way, in the belief ofthe existence of such a state of facts, to the damage of him who sobelieves and acts, the first is estopped from denying the existence ofsuch a state of facts.
And 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, andrbe with such belief does act in that way to hisdamage, the first is estopped from denying that the facts were asrepresented."
In Rodrigo v. Karunaratna2 it was held that to establish an estoppel,it must be proved that the action taken by the party seeking to establishthe estoppel was directly connected with the false impression caused bythe representation or conduct of the party sought to be estopped. Therepresentation producing the impression must be, in effect, an invitationto the person affected by it to do a particular act. Rodrigo v. Karuna-ratna was followed in TJTtku Banda v. Karupai3 when it was held that toestablish an estoppel by conduct by silence, the person who is sought to beestopped by reason of his silence must be proved to have intended toereate a false impression on the person who sets up the estoppel, and thathe caused him thereby to do a particular act. This principle was alsocited with approval in my judgment in Tissahamy v. Perera4 and in arecent ease, S. C. No. 303—D. C. (F) Matara No. 14,491, decided onMay 10, 1944. In the present case the defendant did not go into thewitness-box and give evidence. There is, therefore, an entire absence ofevidence as to whether the plaintiff’s presence at the sale, and silence,induced him to buy. Neither the conduct of the plaintiff nor the generalsituation leads to any such inference. In my opinion the judgment ofthe District Judge is erroneous. I allow the appeal and order thatjudgment be entered for the plaintiff as claimed with costs in both Courts.
de Kbbtstct?., J.—-I agree.*Appeal allowed.
1 (1875) 10 G. P. Cases, at pp. 307.3 25 N. L. R. 204.
* 21 N. L. R. 360.4 43 N. L. R. 405.