Molagoda Kumarihamy V. Kempitiya

1943 Present : Soertsz and Hearne JJ.

MOLAGODA KUMARIHAMY et al., Appellants, and
KEMPITIYA et al., Respondents

1-D. C., Kandy, 369

Res-judicata-Action by donee against third party claiming title from donor-Donor called upon to warrant and defend title-Decision in action between donor and donee given after sale to defendant-Privity.

Where a donee sued a third party for declaration of the title to and in ejectment of property donated to him and where the defendant in the action, who claimed title from the donor called upon the latter to warrant and defend the title conveyed by him to the defendant and make the donor a party to the action,-

Held, that the decision in an action between the donor and the donee given, after the sale to the defendant, in favour of the donor cannot be pleaded as res-judicata by the defendant in the present action.

APPEAL from a judgment of the District Judge of Kandy.

The facts appear from the argument.

E. B. Wickremanayake (with him H. W. Jayewardene), for the plaintiffs, appellants.-The first and second defendants cannot plead res-judicata relying on the decision in case No. 143. In that case, which was instituted in March, 1939, the first and second defendants were not parties; it was an action between the present plaintiffs and R. D. Kumarihamy (the present third defendant). The first and second defendants claim title from a deed of donation granted to them by the third defendant in June, 1938. They cannot, therefore, be regarded as privies of the third defendant. A person can become the privy of another only at a time subsequent to the date of the judgment which is pleaded as res-judicata. Further, there is absence of mutuality between the plaintiffs and the first and second defendants; if the latter as plaintiffs, sued the former, as defendants, the judgment in case No. 143 can never be pleaded in defence as res-judicata. See Sita Ram v. Amir Begam et al [1 I. L. R. (1886) 8 All. 324 at 331.] ; Govindan Asari and another v. Nagayan Chetty and others [2 A. I. R. (1932) Mad. 238.]; Gooneratne v. Ebrahim [3 (1910) 2 Cur. L. R. 222 at 224.]; Chinniah v. Suppramaniam et al [4 (1929) 10 C. L. Rec. 152.]; Vol. 13 Halsbury's Laws of England (2nd ed.), section 454 and 487, Doe v. Martyr [5 (1828) 8 B. & C. 497 at 524.]; Concha v. Concha [6 L. J. (1887) 56 Ch. 257 at 270, 272.].

The third defendant was not a necessary party, and her appearance does not make any difference on the question of res judicata. It is a plea available only to her, and not to the first and second defendants.

H. V. Perera, K. C. (with him C. V. Ranawake), for the first and second defendants, respondents.-The vendor and vendee, donor and donee, are, in our law, placed in contractual relations. A vendor who is brought in to warrant and defend title is a party in every sense of the word and can present the vendee as against third parties. It is the primary obligation of a vendor to give vacant possession to the purchaser.

Ratwatte v. Dullewe [1 (1907) 10 N. L. R. 304.]; Menika v. Adakappa Chetty [2 (1913) 17 N. L. R. 93.]; Wirawardene et al. v. Ratnaike [3 (1920) 22 N. L. R. 219.]. And where the purchaser is sued by a third party he has a double shield: he can either defend himself, or he can get his vendor to conduct the defence. See Balasuriya v. Appuhami [4 (1914) 17 N. L. R. 404.]; Hukum Chand on Res-Judicata, sections 71,105. The third defendant in the present case can successfully plead res-judicata, and the first and second defendants can avail of her success. A fideicommissary is treated as the privy of the fiduciary-Charles v. Nonohamy et al.[5 (1923) 25 N. L. R. 233.] Similarly the vendee is the privy of the vendor.

L. A. Rajapakse for the third defendant, respondent.

E. B. Wickremanayake, in reply.-A vendor cannot represent his vendee. He merely assists the vendee when called upon to warrant and defend title, and does not conve

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