ABRAHAM v. NONNO

082-NLR-NLR-V-15-ABRAHAM-v.-NONNO.pdf


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iwa.
Present: Lascelles C.J. and Wood BentonABRAHAM v. NONNO.
29—D. G. OaUe, 10,577.Fiscal'ssale—Conveyanceby purchaser ■ before obtaining a Fiscal’s
transfer — Subsequent Fiscal's transfer — New conveyance notnecessary to pass title—Civil Procedure Code, ss. 289 and 291.
When .a purchaser at a Fiscal's sale conveys before he has himselfobtained a Fiscal’s transfer and then subsequently obtains a transfer,the benefit of the transfer enures to the purchaser.
fJlHE facta are set out in the judgment.
A- St. V. Jayewardene, for the added defendant, appellant—Thereis no material to support the finding of the District Judge that thedeed in favour of the appellant was not intended to be acted on.Until the deed be set aside by a Court on the ground of fraud, thedeed is valid and confers title on the appellant.
Bawa, K-C-, for the plaintiff, respondent.—Even if the deed wasintended to be acted on, the appellant cannot succeed. The appellantbases his title on the conveyance in his favour from Nicholas, who^bought it at a Fiscal’s sale. At the date of the conveyance toappellant Nicholas had not obtained a Fiscal’s conveyance- Thefact that Nicholas obtained a Fiscal’s conveyance after the executionof the deed in favour of appellant does not enure to the benefit ofthe appellant.
Section 289 of the Civil Procedure Code vests the legal estate inthe purchaser from the time of the sale only for the purposes setout in section 291.
In Silva v. Nonahamine1 the Full Court refused to . apply thedoctrine of relation back in the case of an action brought before theFiscal’s conveyance was obtained- It was held that the fact thatthe conveyance was obtained after the institution of the action didnot enure to the benefit of the plaintiff.
Counsel referred to Don Carolis v- Jamis,2 Ammal v. Kangany 2Kadiravelupillai v. Pinna.,* Alwis ,‘v. Fernando,5 Guruhamy v.Swbaseris5
A■ St. V. Jayewardene, in reply-—Silva v. Nonahamine 1 is a case• in my favour. The decision in that case proceeds on the assumptionthat if the Fiscal’s conveyance was obtained before the institutionof thft action, the intermediate conveyances would have been valid.
1 11906) 10 N. L. R. 44.* (1889)9 S. C. C. 36.
* (1909) 1 Cur. L. R. 224.5 (1911)14 N. L. R. 90.
s (1910) 13 K. L. R. 65.« (1910)13 N. L. R. 112.
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This is the case of a Fiscal's conveyance, which under our lawexpressly relates back to the date of the sale. Don. Carolis v- Joints 1does not, therefore, apply to the foots of this case. Alwis v.Fernando 2 is a case of mortgage- General mortgages are abolishedby our Ordinance. That case does not apply to the facts of thepresent case.
Cur. adv. vult.
April 3, 1912. .Lascelles C.J.—
This is an appeal from the judgment of the District Judge of Gallein a partition action in which he rejected the claim of the addeddefendant to a one-fourth of the land in question. 'The appellant'sclaim was based on a deed from one Nicholas dated April 21, 1879.The learned District Judge has come to the conclusion that thisdeed was not intended to be acted on, and therefore conveyed notitle to the appellant. It was not seriously contended by Mr. Bawa,who argued the case for the -respondent, that the finding of theDistrict Judge in this respect could be supported. There is, in fact,no evidence on which the deed in question can be declared invalid,whether on the ground of fraud or otherwise. Mr. Bawa based hisappeal on another ground. The added defendant's deed was, as Ihave said, dated on April 21, 1879- At that date Nicholas, thevendor, had purchased the property at a Fiscal's sale, but it wasnot until August 8, 1879, that he obtained a Fiscal's transfer. Hesubsequently mortgaged the whole of the land, which was sold undera writ and bought by the plaintiff. The priority of the addeddefendant’s deed depends upon her title relating back, by virtue ofsection 289 of the Civil Procedure Code, to the date of the Fiscal'ssale. Mr. Bawa, for the respondent, has contended that section 289of the Civil Procedure Code does not operate in this way, and thatwhen Nicholas conveyed to the added defendant on April 21, 1879,he had nothing to convey, and that the added defendant took notitle. Mr. Bawa's contention is that section 289 has been mis-understood, and that, reading it in connection with the two followingsections, it must be understood merely to vest the legal estate inthe purchaser from the time of the sale for the purposes set out insection 291.
Now; whatever may be the merits of this argument, I am ofopinion that it is now too late to question the proposition that whena purchaser at a Fiscal's sale conveys before he has himself obtaineda Fiscal's transfer and then subsequently obtains a transfer, thebenefit of the transfer enures to the purchaser. This was clearlyunderstood to be the law before the passing of the present Code,as shown by the following authorities: Selohamy v- Raphiel3 andSilva v. Tmera.*
*■ (1909) 1 Cur. U R. 224.* (1889) 1 S. C. R. 78.
= (1012) 14 N. L. R. 90.4 (1890) 9 8. C. C. 92.
1918.
Abraham
Afonso
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1912.
ItASOBKLBS
ex
Abraham v.Nonna
No doubt, in the case of ordinary conveyances as opposed to Fiscalstransfers, a purchaser of immovable property from a vendor, whohas no title at the time of sale, does not acquire a title withouta new conveyance, when his vendor subsequently acquires a title.Don Carolis v. Jamis,1 also Ammal v. Kang any.2But with regard
to a Fiscal’s sale, the rule appears to be well established thattransfers relate back to the date of the sale, the reason beingthat the purchaser, do what he may, cannot prevent delay inissuing the formal Fiscal’s transfer.
In Aserappa v. Weeratunga3 the effect of section 289 of the CivilProcedure Code was considered in connection with section 17 of theRegistration Ordinance, No. 14 of 1891, but 1 do not understandanything in that judgment as questioning^ the hitherto accepteddoctrine that for the purpose of title a Fiscal’s transfer relates backto the date of the Fiscal’s sale.
For these reasons I do not think it is possible to support thejudgment on the ground suggested by Mr. Bawa. In roy opinionthe appeal must be allowed and the judgment set aside and the caseremitted to the District Judge to effect a partition on the footingthat the appellant is entitled to a one-fourth share of the land inquestion.
The appellant is entitled to the costs of the appeal.
Wood Renton J.—
I agree that the appeal should be allowed on the terms stated bymy Lord the Chief Justice.
Appeal allowed,
' (1909) 1 Cur. L. R. 224.3 (1910) 13 N. L. R. 66.
» (1911) 14 N L. R. 417.