Puspakanthy V. Dr. Balendra

1944 Present: Howard C.J. and de Kretser J.

PUSPAKANTHY, Appellant, and DR. BALENDRA,
Respondent.

283-D. C. Colombo, 1,806.

Estoppel-Nature of representation-No defence that there was an absence of intention to deceive-Voluntary statement made to induce the represented to act upon it sufficient.

It is no defence to a plea of estoppel that the representation was not make to deceive the person to whom it was addressed. It would be sufficient if it appears that the representation was made voluntarily with the actual or implied intention of inducing the represents to upon it.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera, K.C. (with him C. Renganathan), for defendants, appellants.

N. Nadarajah, K.C. (with him E. B. Wikremenayake), for plaintiffs, respondents.

Cur. adv. vult.

May 22, 1944. HOWARD C.J.-

In this case the defendants appeal against a judgment of the District Judge declaring that the plaintiffs are entitled to certain property which was formerly known as No. 58, Hill street, Colombo, but which had been consolidated into one block with No. 59, Hill street, the whole now being known as No. 50, Hill street. It was contended by the defendants that the .plaintiffs are estopped from denying the defendants' title to the land in dispute. The latter claim title through one Vallipuram who took an assignment from one Letchimanan who was .the mortgagee of certain property owned and mortgaged to him by one. Sivacolenthan, the father of the plaintiffs. Letchimanan had put the bond in suit and obtained a decree against Sivacolenthan. This decree was assigned to Vallipuram. The mortgage in favour of Letchimanan (P 10) specially mortgages and hypothecates " all those lands and premise-3 in the schedule ' A ' hereto fully described. " Schedule " A " however describes two sets of premises both of which descriptions refer to No. 59, Hill street. A description of No. 58, Hill street, is not set out in Schedule " A ". Vallipuram, however, gave evidence on behalf of the defendants and stated that he took the assignment of this decree on the request of Sivacolenthan in order to save the property from being sold in execution by Letchimanan. Vallipuram o further stated (hat he was aware of the fact that Sivacolenthan had bought the property in two blocks which he had amalgamated into one block on which he had built a new bungalow. He further stated in evidence that Sivacolenthan told him he had raised loans and mortgaged the whole bungalow arid that the creditor was threatening to sell this bungalow if he did not redeem the debt.' Vallipuram says that it was on the understanding that the whole property on which the new bungalow stood was mortgaged to Letchimanan that he took the assignment of the latter's decree.

It has been argued by Mr. Perera that having regard to the evidence of Vallipuram, the plaintiffs who claim as the heirs of Sivacolenthan are estopped from denying the title of the defendants to No. 58, Hill street, by reason of the representation of Sivacolenthan that he had mortgaged the whole of the property, on which the bungalow stood, to Letchimanan. The learned District Judge has stated that he cannot place any reliance on the testimony of Vallipuram. He further states that he does not think that Sivacolenthan could have made any misrepresentation to mislead Vallipuram because it would- appear that Sivacolenthan was himself under the impression that the whole property was subject to the mortgage. Here the learned Judge seems to have become confused in his reasoning. It is not necessary for Sivacolenthan to have had

any intention to mislead Vallipuram. In this connection the following passage at p. 195 of Spencer Bower on Estoppel is in point: -

" The contention which from time to time has been advanced on behalf of a representor that his honesty and innocence of intention ought to exempt him from liability to estoppel,

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