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NANDUWA et al v. BHAI et al.
NLR23V449
Present : Ennis
and Porter JJ.
NANDUWA et al. v. BHAI et al.
415-D. C. Kandy, 28,568.
Estoppel-Person present at
Fiscal s sale and not making known his title to purchasers-Intentional^-Evidence
Ordinance, s. 115,
H sold a certain property to W on January 20, 1919 (registered on January 21,
1919). On a writ of execution against H, the property was seized on January
21,1919, and sold by the Fiscal on March 17, 1919. On hearing of the sale W
wrote a letter to the Fiscal stating his title, and on the date of the sale W
went to the sale with his deeds and presented them to the auctioneer. W was
present at the sale, but did not make his title known to the purchasers.
Held, W was not estopped by his conduct from asserting his title.
IN
this case the subject of contention was the title to seven--eighths of the
land called Bogahapitiyawatta with the houses thereon. It was common ground that
seven-eighths of this garden belonged to Abdul Hameed and Abdul Majeed, the
remaining one-eighth being the property of their mother, who was not a party to
this action. The plaintiff's case was that Abdul Hameed and Abdul Majeed, by
their deed bearing No. 668 and dated January 20,1919 (D 1), which was duly
registered on January 21, 1919, sold and conveyed their seven-eighths share to
Ana Uduma Lebbe, who, by his deed bearing No. 370 and dated July 29,1920 (P 8),
sold and conveyed these shares to the plaintiffs. On the other hand, the first
defendant claimed these shares as purchaser at a sale in execution against the
property of Abdul Hameed and Abdul Majeed held on March 17, 1919, as shown by
Fiscal's conveyances bearing Nos. 19,316 and 19,317, both dated June 11,1919 (D
7 and D 8).
In their answer the defendants inter alia, pleaded that that there was no
consideration for the conveyance from Uduma Lebbe to the plaintiffs (P 8), and
that they were not bona fide purchasers for valuable consideration, and that
Uduma Lebbe and his privies-in-title, the plaintiffs, were estopped from
contesting the first defendant's title, inasmuch as Uduma Lebbe was present at
the Fiscal's sale held on March 17,1919, and made no claim to the shares in
question.
The District Judge (W .S. de Saram, Esq.) held that Uduma Lebbe was present at
the Fiscal's sale on March 17,1919, and notified his claim to the Fiscal's
Officer who was conducting the sale, but that, inasmuch as Uduma Lebbe did not
make his claim known to the purchaser, Uduma Lebbe and his privies-in-title, the
plaintiffs, are estopped from denying the first defendant's title, and dismissed
the plaintiff's action, with costs.
Pereira, K.C. (with him Soertsz),
for the appellants.-The sale to Uduma Lebbe is not tainted with fraud as held by
the District Judge, The fact that Uduma Lebbe did not tell the purchaser at the
Fiscal's gale of his title is not sufficient to estop him from asserting his
title. The circumstances do not show that he intentionally did anything which
might have caused the purchaser to act to his prejudice.
Jayawardene, K.C. (with him Navratnam) ,for the respondents.- The sale to Uduma
Lebbe was tainted with fraud. Notice to the Fiscal of Uduma Lebbe's title was
insufficient. He was present at the sale, and the effect of his failure to
disclose his rights to the purchaser and other bidders prejudiced the purchaser
and made him act on the belief that Uduma Lebbe had no title. Counsel cited 20
N. L. R. 389, 14 N. L. R. 152, 18 N. L. R. 461, 21 N. L. R. 360,19 N. L. R.
284,1 C. W. R. 74, 6 C. W. R. 147, 20 Gal. 296.
June 26, 1922. ENNIS J.-
This was an action for declaration of title to seven-eighths share of a land
called Bogahapitiyawatta and the houses thereon. It appears that the land
originally belonged to one Miskin, who died leading a widow and two sons, Hameed
and Majeed. They sold their seven-eighths share on January 20, 1919, to one Ana
Uduma Lebbe. That conveyance is the document D1, which w
