037-NLR-NLR-V-48-APPUHAMY-et-al.-Appellants-and-THAILAMMAL-Respondent.pdf
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HOWARD C.J.—Appuhamy v. ThailammaL
1947Present: Howard C.J.
APPUHAMY et al., Appellants, and THAILAMMAL, Respondent244—C. R. Kandy, 23,749
Sale—Purchase of property by decree holder at execution sale—Subsequenttransfer by purchaser to a bona fide purchaser—Validity of the bonafide purchaser’s title if the decree is subsequently set aside.
The title of a person who bona fide purchased property from a decreeholder who had bought it at the sale held in execution of his decreeis not affected if the decree, by reason of its being voidable, is subse-quently set aside by Court.
Wijeyeratne v. Mendis Appu et al. (1946) 47 N. L. R. 393, followed.
A
PPEAL, with application for leave to appeal, from a judgment ofthe Court of Requests, Kandy.
Cyril E. S. Perera (with him L. G. Weeramantry), for the appellants.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for thepetitioner, respondent.
Cur. adv. vult.
March 4, 1947. Howard C.J.—
This is an appeal by the 3rd and 4th respondents from the judgmentof the Court of Requests, Kandy, setting aside a decree of the sameCourt dated May 11, 1938, on the ground that the defendant in that casewas of unsound mind and also setting aside subsequent orders made inthe case and declaring the sales made thereunder were null and void.The plaintiff in the original case has since died leaving as heirs his mother,the 1st respondent, and his brother, the 2nd respondent. The defendantin the original case has also died leaving as heirs the petitioner who is therespondent to this appeal and another daughter. The plaintiff obtained
HOWARD C.J.—Appuhamy v. Thailammal.
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decree on May 11, 1938. In pursuance of this decree the defendant’sproperties were sold on August 2, 1938, and October 22, 1938, andpurchased by the plaintiff. The latter subsequently sold the propertiesto Muttu Kannu Ammal and Sundaram Pillai by deed No. 688 datedFebruary 13, 1942. These two purchasers by deed No. 762 of May 5,1945, sold the same properties to the appellants for the sum of Rs. 6,000.The respondent to this appeal applied for the decree and subsequent salesand orders to be set-aside on the ground that the defendant, her father,was adjudged a lunatic on September 1, 1938. In setting aside thedecree, sales and orders the Commissioner has held that the defendantwas adjudicated a lunatic on September 1, 1938, and was of unsoundmind even when the decree was entered on May 11, 1938. It wouldappear also that the appellants when they purchased the properties in1945 were aware of the fact that the defendant had been of unsound mindfor about two months prior to the adjudging him a lunatic.
There is no suggestion that the appellants had in purchasing theproperties been a party to any fraud either in connection with the decree,order for sale or their subsequent purchase. In these circumstancesthey were bona -fide purchasers for value. The ‘case is in my opiniongoverned by the judgment of Wijeyewardene J. in Wijeyeratene v. MendisAppu1 where it was held that the title of a bona fide purchaser from adecree holder who purchased at a sale held in execution of his decree isnot affected by the subsequent reversal of such decree. In his judgmentWijeyewardene J. referred to the judgment of the High Court of Madrasin Sheik Ismail Rowther et al. v. Rajah Rowther * and cited with approvalthe following passage from that judgment: —
“Assuming that the first defendant in obtaining the de.cree had beenguilty of misrepresentation or fraud, the proceedings were only voidable,and a bona fide purchaser from him is entitled to rely on his title assuch. The plaintiff had only an equity to set aside the proceedingswhich were the result of fraud or misrepresentation and that equitycannot be allowed to prevail against persons in the position of theappellants.
It is by no means clear that it was the duty of the appellants when,aware that their vendor’s title was under a Court sale, to refer to thedecree on which the sale was held ; but, assuming that it was, we areunable to agree to the argument urged for the plaintiff that a referenceto the decree as it stood, before it was set aside, would have shown anyflaw in the title of the first defendant so as to fix the appellants withnotice of the first defendant’s fraud.
The decision of the Madras Court was, as pointed out by Wijeyewardene
J., consistent with the judgment of the Privy Council in Zain-ul-AbdinKhan v. Asghar Ali Khan’. The respondents are in a strongerposition in this case as they are not merely purchasers at anexecution decree but from a person who bought from the purchaser at an
1 (1946) 47 N. L. R. 393 ; 32 G. L. W. 105.
* ^ 1096) 30 Indian Law Revorts (Madras) 293.
3 (1833) 10 Allahabad 166.'
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SOERTSZ S.P.J.—Simpson v. Omeru Lebbe.
execution decree. The judgment of the Commissioner for the reasonsI have given must be set aside so far as the appellants are concernedand they are declared entitled to the lands described in the schedule tothe respondent’s petition together with their costs in this Court and theCourt below.
Appeal allowed.