Fernando Et Al V. Fernando Et Al.

Present: Lascelles A.C.J. and Grenier J.   April.10,1911

FERNANDO et al v. FERNANDO et al.

79-D. C. Negombo, 8,152.

Estoppel-Co-owner standing by and permitting a co-owner to lease the whole land..

The plaintiffs who were entitled to three-fourths share of a land, not knowing that they were so entitled, stood by when the third defendant, who was entitled to only one-fourth of the land, executed two successive leases in favour of the first and second defendants, in which he dealt with the whole land.

In an action brought by the plaintiffs to vindicate their title against the defendants, held that they were not estopped from setting up their title.

Lascelles A.C.J.-It is essential, in order to create an estoppel by acquiescence, to show that the plaintiffs, knowing that a violation of their rights was in progress, stood by and so misled the first and second defendants.

THE facts appear sufficiently from the head note.

H. A. Jayewardene, for the plaintiffs, appellants.-The District Judge finds that the plaintiffs did not know that they were owners of three-fourths share at the time the third defendant leased the land to the other defendants. The plaintiffs could not therefore be said to be estopped. Even if the plaintiffs knew that the third defendant was dealing with their shares, the plaintiffs would not be estopped under the circumstances of this case. The plaintiffs were not present at the execution of the lease; they did not induce the first and second defendants to take the land on lease.

Mere silence cannot amount to estoppel; there must be a duty on the person sought to be estopped to speak. Silence amounts to a fraud for which a Court will grant relief, only when it is the nondisclosure of facts and circumstances which one is legally bound to communicate to the other. Banerjee v. Chatterjee; 1 Amir Ali and Woodroffe, Law of Evidence, p. 653, 4th ed.

F. M. de Saram, for the respondents.-The plaintiffs allowed the third defendant to be in sole possession of the land and to execute a lease for the whole land. The District Judge finds that the plaintiffs were aware of the execution of the lease and of their rights. The plaintiffs are estopped by their acquiescence.

Counsel cited Sadris Appu v. Cornelis Appu,2 Leeds v. Amherst,3 Caruppen Chetty v. Wijesinghe,4 Wilmot v. Barber.5

H. A. Jayewardene, in reply.

Cur. adv. vult.

April 10, 1911. Lascelles A.C.J.-

It is admitted that the plaintiffs are lawfully entitled to three-fourths and the third defendant to one-fourth of the land in dispute. The third defendant, although entitled to deal only with one-fourth, in 1903 leased the whole of the land to the first and second defendants. In 1909 the first and second defendants were ousted by the plaintiffs; the first and second defendants thereupon brought a possessory action, and were restored to possession. The plaintiffs now bring this action to vindicate their legal title.

The first and second defendants have not persisted in their plea that their lessor has acquired prescriptive title against his co-owner; but they contend that the plaintiffs by acquiescence in this lease, and in a similar previous lease, have led the first and second defendants to believe that the third defendant owned the entirety of the

1 (1904) 32 Cal. 357.                                                                 3 (1846) 2 Philips 117, at page 122.

2 (1905) 8 N. L. R. 380: 2 Bal. 104.                                     4 (1910) 14 N. L. R. 152

5 (1880) 93 L. T. 95 at page 98.

land, and that the plaintiffs cannot now be allowed to dispute the title of the third defendant.

Where an estoppel of this kind is set up, I am of opinion that it is necessary that the facts on which the estoppel depends should be proved strictly and beyond reasonable doubt. Leases and deeds are commonly given by persons who have no legal interest in the subject-matter of the deed, and it would b

Click Here to Read the rest of this document