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GURUHAMY v. SUBASERIS et al.
NLR13V112
Present : Mr. Justice Wood Renton and Mr. Justice Grenier.
GURUHAMY v. SUBASERIS et al.
D.C. Kurunegala, 3,450.
Sale by a person without title-Vendor
subsequently obtaining title-Action by vendor against vendee in
ejectment--Exceptio rei venditee
A obtained a conveyance for a land from a person who had no title and sold it to
B. After the sale to B, A bought the land from the real owner, and sued B for
declaration of title and ejectment.
Held, that B had an equitable claim as against A to have the title
conferred upon him upheld.
APPEAL
from a judgment of the District Judge of Kurunegala (C. S. Vaughan, Esq.). The
facts are fully set out in the judgment of Wood Renton J.
Bawa, for the appellant.-Elmali acquired no title by virtue of the conveyance in
favour of her minor daughter Ukkuwa (Ammal v. Kangany [1 (1910) 13 N.
L. R. 65. ]). Consequently Elmali's conveyance to Rajabu and Rajabu's conveyance
(1889) to appellant and second defendant did not pass any title to the land to
the grantees. The conveyance by appellant to third defendant (1896) was also
invalid for the same reason. The appellant had subsequently acquired a valid
title in 1899 from Ukkuwa's vendee. The third defendant may possibly have a
right to get the appellant to execute a new conveyance (Don Carolis v. Jamis [
2 (1909) 1 Our. L. B. 224.]), but as the case stands at present the
plaintiff must succeed against both defendants.
De Sampayo, K.C., for the respondents.-Ammal v. Kangany is no doubt a binding
authority, and Elmali had consequently no title to convey. The plaintiff must
get judgment against the second defendant. But the third defendant can plead the
exceptio
venditcB. The plaintiff is estopped from
setting up his title as againsthis vendee (Voet 23, 3, Berwick's Voet 542).
Without a notarial conveyance from plaintiff after he had acquired a valid
title, the third defendant may not be able to sue a third party who is in
possession (and who does not claim through the plaintiff) in ejectment. The
third defendant may, however, sue her own vendor, or set up a plea of estoppel
when she is sued by the vendor. Don Garolis v. Jamis does not consider this
question, and is therefore no authority on this point. The case reported in
Wendt's Reports 122 appears to indicate that in the case of sales (though not in
the case of donations) the plea of estoppel would apply. Counsel also cited 1
Nathan 379; De Silva v. Shaik Ali;x Encyclopedia of the Laws of England, V'.,
339, " Estates by Estoppel " and " Title by Estoppel ".
Bawa, in reply.-The only estoppel our law recognizes is estoppel in pais. The
third defendant is setting up an estoppel by deed, which is not known to our law
(Ukku v. Rankiri 2). [Wood Renton J.: He is pleading estoppel by equity.] If
Ordinance No. 7 of 1840 is in conflict with an ancient rule of equity, the
Ordinance must prevail. Ordinance No. 7 of 1840 is unambiguous, and the
doctrines of equity stated in Voet cannot supersede the Ordinance. Counsel
referred to Kadirawelpillai v. Pina,3 De Silva v. Shaik All,1 Wendt's Reports
122.
Cur. adv. vult.
March 17, 1910. WOOD RENTON J.-
The plaintiff-appellant claims a declaration of title to, and the ejectment of
the defendants-respondents from, a land described in the plaint. The material
and admitted facts are these. The land originally belonged to one Mudianselage
Mudah'hamy. By deed of sale dated September 1, 1873, he transferred it to
Ukkuwa, who was then a minor. By a deed of sale dated June 17, 1885, and during
Ukkuwa's minority, his mother Elmali conveyed the land to Rajabu, who by deed of
August 26, 1889, sold it to the appellant and the second defendant-respondent,
who were then husband and wife. By a deed of December 21, 1896, the appellant
transferred (sold) a half share of the land to his daughter, the third
defendant-respondent, who was then a minor. The marriage between the appellant
and the se
