Wijeyesuriya V. Samarasuriya

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

WIJEYESURIYA, Appellant, and SAMARASURIYA,
Respondent

250-D. C., Tangalla, 4,783.

Estoppel-Fiscal's sale-Presence of party at sale and remaining silent-No evidence of intention to create a false impression.

Mere presence at a sale of property, without claiming it, is not sufficient to create an estoppel against a person. There must be evidence that the person sought to be estopped by reason of his silence intended to create a false impression on the person who sets up the estoppel and induced him to buy.

APPEAL from a judgment of the District Judge of Tangalla. The facts appear from the argument.

N. E. Weerasooria, K.C. (with him E. B. Wikremanayake), for the plaintiff, appellant.-This is a case of competition between two deeds of title derived from the same source. The plaintiff claims the property in question under a deed of February 26, 1941, and the defendant claims it by virtue of a Fiscal's transfer of June 19, 1941, made in pursuance of a sale which was held in execution against he plaintiff's vendors on February 27, 1941. It is clear on the evidence against the plaintiff's, although he was present at the Fiscal's sale, did not bid. The question is whether his mere presence and silence at the sale can create an estoppel. To establish an estoppel the person who is sought to be estopped by silence must be proved to have intended to create a false impression on the person who sets up the estoppel. The onus in the present case was on the defendant to prove by affirmative evidence that the plaintiff's presence and silence at the sale misled him and induced him to buy. He has not, however gone into the witness-box and give such evidence. The recent case of Tissahamy v. Perera [1 (1942) 43 N. L. R. 405.] contains a review of all the relevant decisions. See particularly Rodrigo et al. v. Karunaratna et al. [2 (1920) 21 N. L. R. 360.] and Ukku Banda v. Karupai et al. [3 (1923) 35 N. L. R. 204.]

N. Nadarajah, K.C. (with him S. W. Jayasuriya), for the defendant, respondent.-It was not necessary for the defendant to have given evidence personally. The plaintiff was present at the sale but did not raise any objections to the sale. He stood by without claiming the property as his. The trial Judge has also found that he bid at the sale. Even assuming that this finding is incorrect, the mere fact that the plaintiff should by without protesting is sufficient to create an estoppel. The guiding principle is that if I see a man acting in derogation of my rights without knowing that I have any. I am bound to tell him of them-Caruppen Chetty v. Wijesinghe [4 (1910) 14 N. L. R. 152]; Gunasekera v. Dissanayake [5 (1912) 16 N. L. R. 123.]; Saparamadu v. Saparamadu [6 (1918) 20 N. L. R. 369.]; Rodrigo et al. v. Karunaratna et al. (supra).

N. E. Weerasooria, K. C., replied.

Cur. adv. vult.

October 25, 1944. HOWARD C.J.-

The defendant in this case claims the property in dispute by virtue of a Fiscal's transfer No. 6,115 of June 19, 1941. The defendant became the purchaser of the said property at a sale held in execution against two persons, Andirishamy and Ensohamy, on February 26, 1941, by deed No. 1,454. Ensohamy and Andrishamy sold the said property to the plaintiff. On the same day the transfer of the property was registered in the Land Registry. The defendant is in forcible possession of the property and the plaintiff has brought this action praying that he be declared entitled to the said land, that the defendant be ejected therefrom and that he be placed in possession thereof. The plaintiff also claims damages at Rs. 120 and a further Rs. 15 per month from the date of action until placed in possession. The defendant pleaded that the plaintiff's deed executed a day before the sale in execution by the Fiscal was a fraudulent deed. Further, that the plaintiff was present at the sale in execution and allowed

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