1954 Present : Rose, C.J., and Sansoni, J.

A. A. M. THASSIM, Appellant, and 1ST. M. M. SULEIMAN,
Respondent

S. C. 157-D. C. Matara, 46

Estoppel-Recital in a deed-Right of a person to act on the faith of that representation -Evidence Ordinance s. 115.

Where A holds B out as owner of A's property and a third person C purchases it for value from the apparent owner B in the belief that B is the real owner, neither A nor any person who subsequently purchases that property from A will be entitled to dispute C's claim to be its owner.

APPEAL from a judgment of the District Court, Matara.

C. V. Ranawake, for the plaintiff-appellant.

N. E. Weerasooria, Q.C., with E. A. G. de Silva, for the defendant-respondent.

Cur. adv. vult.

August 4, 1954. SANSONI, J.-

In this partition action the only dispute concerns a house on the land sought to be partitioned and it arises in this way. Under a partition decree of 1947 three persons, Abdul Rahim, Abdul Hamid and Abubucker were declared entitled to the lot on which this house stood. They sold that lot to one Thassim in 1948 and Thassim in turn sold it to Salahudeen by deed P3 of 1.3.51. By deed D1 of 12.5.51 Salahudeen sold " All that undivided 2/3 parts or shares of the soil and fruit trees (exclusive of the buildings standing thereon belonging to the vendees hereto) " to Abdul Rahim and Abdul Hamid already mentioned, and they by deed D2 of 14.5.51 sold " all that undivided 2/3 part or shares of the soil and fruit trees together with the entirety of the nine cubits tiled house standing thereon " to the defendant. Eleven days later, by deed P4 of 25.5.51 Salahudeen sold " all (his) right title claim and interest to and upon the land " to the plaintiff. The plaintiff claimed that Salahudeen was still entitled to 1/3 share of the house at the time deed P4 was executed, and this 1/3 share was accordingly claimed by the plaintiff who conceded that the defendant was entitled to 2/3 share of the house. The defendant, however, claimed that the plaintiff was estopped, by the representation made by Salahudeen in Deed Dl, from claiming any share of this house, and a point of contest was raised on this basis. A further point of contest suggested by the defendant's counsel at the trial was " Did any rights in the house pass on the deed Dl ? ". Obviously no rights in the house could have passed from Salahudeen and his two vendees on the deed, seeing that the 2/3 share was sold exclusive of the buildings.

The only question that arises, therefore, is whether the defendant has made out his claim that the plaintiff is estopped from claiming any share of the house by reason of the representation made by Salahudeen in the deed Dl. Now it must be borne in mind that the plea of estoppel is not raised by Abdul Rahim and Abdul Hamid. It might in that situation have been contended against them that they were aware that Salahudeen was the owner of the house ; they would also have had to prove that they were persuaded to purchase by reason of the particular statement made in Dl

The position of the defendant is different. He gave evidence, which the learned District Judge has accepted, in the course of which he said :- " The deed Dl in favour of the vendors showed that they were the sole owners of the house. That is why I purchased the house. " In other words, his case was that he bought the 2/3 share and the entire house on ' deed D2, believing and acting on the statement made by Salahudeen as

regards the house. In this state of things it seems clear that if Salahudeen had claimed the 1/3 share of the house now in dispute he would have been estopped. "If, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be precluded from contesting its