GUNASEKERA v. DISSANAYAKE

036-NLR-NLR-V-16-GUNASEKERA-v.-DISSANAYAKE.pdf


( 123 )
Present: Lascelles C.J. and Pereira J.
GUNASEKERA v. DISSANAYAKE.
136—D. C. Kandy, 81,419.
Estoppel—Intention—Evidence Ordinance, s. US—Marriage in com-munity—Last trill by husband giving properly to widow – andchildren in equal shares—Widow dealing with property as if shewas not entitled to half the common estate.
The first defendant was married in community of property toone Dissanayake, who-died leaving a will by which he gave all hisestate in equal shares to his widow (first defendant) and sevenchildren.
The widow and children dealt with the entire estate for thirtyyears (since the death of Dissanayake) on the footing that thewidow was not entitled to half the common estate, and that itdevolved on the widow and children in equal shares.
Held, that in the circumstances of this case the widow wasestopped from setting up her title to half the estate.
An estoppel will arise where the person who makes the represen-tation so conducts himself that a reasonable man would take therepresentation to be true and believe that it was intended to beacted on.
Pereira J.—With reference to the word “ intentionally ” insection 115 of the Evidence Ordinance, I may add that intentionto have a representation acted upon may be presumable as well asactual, so that a man would be bound as well when his conduct orthe circumstances of the case justified the inference of intention aswhen he actually intended the result.
A PPEAL from a judgment of the District Judge of Kandy(F. B. Dias, Esq.). The facts appear from the judgment ofLascelles C.J.
'O y-V
H. A. Jayewardene, for the appellants.u
-4. St-.-V. Jayewardene,iat the’respondent'.'
Cur. adv. vult,.
October 24, 1912. Lascelles C.J.—
This a partition action in which the question for determinationis whetl the first defendant, the widow of the testator, is entit'to one-inth only of the land in question, as alleged ’ .ue
plaintiff, to one-fourteenth plus half (the latter fract*repre-
senting 1 (hare in the community) as contended by hemen and tfieother con. ting defendants.
1M3.
IMS.
liABOBLLBS
OJ.
Qimasekero
Dissanayake
( 124 )
There is no question but that the testator David Dissanayake andthe first defendant were married in community; so that, on thedeath of the former, Ms widow became legally entitled to half ofthe common estate. David Dissanayake left a will by which hegave all his estate in equal shares to his widow and seven children,and appointed his wife to be the sole executrix of his will. In thesecircumstances, apart from any question of estoppel, the right ofthe widow to half the common estate would be incontestable.
But the learned District Judge has found that for the last thirtyyears the widow and children have dealt with the estate on thefooting that the widow was not entitled to half the common estate,and that it devolved on the widow and children in equal shares.On this ground he has held that the contesting defendants are nowprecluded from setting up the widow’s title to half the estate:
In the judgment the widow and children are said to have“ elected ” to regard the estate as belonging to them in equal shares,but I understand the judgment to be based principally on estoppelby conduct. For I do not see how the doctrine of election can beapplicable to the facts of this case, unless the will is construed asdisposing of the widow’s half of the estate as well as the testator’sown disposable interest therein. On this footing it might be con-tended that, inasmuch as the widow had elected to take under thewill, she is bound by her election, and cannot object to the will asa disposition of the whole of the common estate. But I do notthink that the will can be so construed; for by it the testatorpurported to dispose only of his own property, and this is theplain meaning of the will.
The true question is whether the contesting defendants are nowestopped by their conduct from setting up the first defendant’s claimto half the estate. As the learned District Judge has pointed out,the first defendant, as executrix, and the other contesting defendantsfrom 1883 to 1906 have consistently dealt with the estate on thefooting that the widow and children took equal shares in the estate.
In 1883, on the marriage of her daughter Jane to the plaintiff,the first defendant transferred to her two lands valued at Rs. 750,representing a one-eighth share ini the estate. Then there is a' succession of deeds in which the other children- dealt each with .*bne-seyentb (not-one-fourteenth) of the-property, and a planinglease in which the first defendant and her children in 189^ letthe entire land on a planting lease to the plaintiff for eighteen years,for Ks. 50 a year, which rent was divided among and paid to the
several co-owners.
The plaintiff, it, should be Btated, now claims 1/7 +t. • The former share he acquired by purchasingthe v 'eventh share of Alexander in 1900, and therepresv-iuj tfia,. plaintiff’s interest in a one-seventh aAlice in I84r to Jane, the plaintiff’s first wife.
.4 of theexecution:er sharesold by
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The widow was not called as a witness, and in the absence of anyexplanation by her, it is difficult to avoid the conclusion that shein effect renounced her half share in the estate in favour of herchildren, and that when her daughter, the plaintiff’s wife, died sheendeavoured to recede from this position.
But the appellants contend that the contesting defendants havenot by this course of dealing “ intentionally caused or permitted ”the plaintiff to believe the widow was entitled to one-seventh onlyof the estate, and to act on that belief within the meaning of section115 of the Evidence Ordinance.
It is contended that there is no evidence that any of the defendantsdid any act with the intention of misleading tlie plaintiff. Thismay be so, but it is well settled that an estoppel will arise where theperson who makes the representation so conducts himself that areasonable man would take the representation to be true and believethat it was intended to be acted on. Fr&eman v. Cooke 1 (vide alsoauthorities cited in Lord Halsbury’s Laws of England, vol. XIII.,p. 352). The question is thus, whether the conduct of the widowhas been such that a reasonable man would believe that she hadrenounced her rights as surviving spouse and had representedherself as being entitled to share in the estate equally with herchildren, intending that such representation should be acted on.This question, I think, must be answered in the affirmative. Asthe learned District Judge has pointed out, all the widow’s trans-actions with the estate from the death of her husband in 1879 downto 1906 were entered into on the footing that the widow did notclaim more than an equal share with her children in the estate; andin one of these transactions, namely, the lease P 4, the plaintiff wasdirectly concerned. The lease was granted by the widow and herchildren in 1892 to the plaintiff and a co-lessee, and the first defend-ant and her children received rent and granted separate receiptsan the footing that the first defendant claimed only a one-seventhshare in the estate. The plaintiff was also directly concerned inthe settlement made by the first defendant on the marriage of herdaughter Jane to the plaintiff. Her action with regard to thesetransactions, coupled with her uniform course of conduct extendingover many years, amounts, in my opinion, to a representation whichany man might have reasonably acted on, that the jnterest wjbicb„she claimed in the estate was a one-seventh share.
It has been contended by the appellants, on the authority ofSloan v. North British Australasian Co. ? and Longman v. BathElectric Tramways, Limited,3 that there can be no estoppel in this*/ase, as the representation was not with regard to the transactions>y which the plaintiff acquired title. But the facts of these casesre widely different from those under consideration. The formeri 2 Exch. 654*2 Heulstone & Col. 183.
1912.
IiASGBLLBff
O.J.
Quiuuekerat
o*
Dissanayake
* (1905) 1-Chan. 646.
IMS.
IiASCELLES
<U.
Qunaseker*
«#
Diesanayake
( 126 )
case was one of estoppel by negligence. The question was whetherthe plaintiff was estopped from denying the genuineness of forgedtransfers by his negligence in giving his broker for another purposesigned forms of transfer in blank. It was held that he was not soestopped for the reason, among others* that the neglect was not inrespect of the transaction itself. The latter case dealt with theresponsibilities of companies in connection with the “ certification ”of transfers, and it was held that while certification may have placedthe company under special obligations to those to whom it wasgiven, or to those claiming under them, it was otherwise with theplaintiffs, who knew nothing of the certification, and could not haveany claim on it. I do not think that either of these authoritiesthrows much light on the present caBe.
It cannot be disputed that here the conduct of the first defendantand the other contesting defendants in their dealings with the estategenerally, and especially in their dealings with the plaintiff's wifeand the plaintiff himself, was the proximate cause of the plaintiffpurchasing on the footing that the first defendant had renouncedher widow's share in her husband's estate.
In my judgment the decision of the learned District Judge isright, and I would dismiss the appeal with costs,
Pereira J.—
I agree. With reference to the word *' intentionally " in section115 of the Evidence Ordinance, I may add that, as laid down byAmeer Ali and Woodroffe in their work on the haw of Evidence as aresult of the authorities cited by them, intention to have a represen-tation acted upon may be presumable as well as actual, so that aman would be bound as well when his conduct or the circumstancesof the case justified the inference of intention as when he actuallyintended the result.
Appeal dismissed.