017-NLR-NLR-V-05-ERAMANIS-v.-DANTU.pdf
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1001.March 18.and 19.
EE AM AN IS v. DANTU.
R., Galle, 5,592.
Fiscal's sale—Sale by execution-debtor to his son previous to Fiscal's sale—Possession by execution-debtor on behalf of his son not resident in the ‘Island—Competing claims.
T., having sued out a writ of execution against the property of D.rcaused the Fiscal to seize a certain land as the property of D. At thesale held by the Fiscal, E, bought it, and it was conveyed to him on 29thOctober, 1897. The conveyance was registered on the 19th December,1897. T. would not allow E. to' take .possession on the ground that hehad sold it to his son by deed dated 31st’ August, 1897.
In an action brought by E. and his lessee against T., held that, as T.was not the recognized agent of his son, he could not hold possessionin his name, but must yield it to E., without prejudice to whatsoeverrights the‘Son may have to the land.
T
HE plaintiff in case No. 3,690 of the Court of Eequests ofGalle sued one. Thepanis for damages, and his action being
dismissed with costs on the 18th August, 1897, the defendant tookout writ of execution against him and pointed out certain pro-perty for seizure. It was sold by the Fiscal on the 29th October,3897, and was purchased by one Eramanis. Thereupon he leasedit to another person, but was not allowed to take possession of theproperty by the defendant in the said case on the plea that he badsold the property to his son by deed-dated 31st August, 1897.
Erpmanis and his lessee instituted the present action againstthe plaintiff in case No. 3,690 for ejectment of the defendant andfor .a declaration of title in favour of the first plaintiff.
The Commissioner dismissed the plaintiff’s action in theseterms: —
“ The property was seized and sold by the Fiscal on the 29thOctober, 1897. It had been transferred previous to this sale bythe defendant on the 21st August, 1897. At the time of theFiscal’s sale the property did not belong to the defendant, whonow holds it as the agent of the son and not in. his own right.
Plaintiff appealed:
Bawa, for appellant.—The Fiscal’s transfer in favour of theplaintiff was made on the 29th October, 1897, and registered onthe 19th December following. It is proved that on 5th Novem-ber ^plaintiff was put into possession, and . on the 6th of thesame month- first plaintiff leased the land to the second plaintiff,but defendant would not let the ‘second plaintiff enter the premises,
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on the ground that he holds the property for and on behalf of hisson, who is now in Australia, upon a conveyance purported to bemade by himself in favour of the son. This is a fraudulenttransaction. The defendant holds no power of attorney from theson, and the defendant was insolvent at the time of this con-veyance. It is further proved that there is no consideration forit. The notary who drew the deed says the son was not present.The deed was executed three days after the judgment condemningthe defendant in costs, while the son was in Australia, where hehad gone six years ago. The defendant’s deed is, clearly fraudu-lent. Even if it were not, defendant cannot act for the sonwithout a power of attorney, and supposing judgment against thedefendant in the present case, that will not aifect the son at all.
E. W. Jayawardena, for the respondent.—Plaintiff, who claimsas purchaser under the Fiscal, has no title because of the deedpreviously registered. The title to the property is in the son otthe defendant. That is the only question in the case. L-*jAWRIB>J.—Defendant has no authority to be in possession. I am notprepared to say that the transaction between the father and son isfraudulent; but without proof that he is the recognized agent ofhis son, he cannot hold possession as against a person who had adeed under the Fiscal. I shall leave the rights of the son to bebrought out by himself. J
Cur. adv. vult.
19th March, 1901. Dawrie, J.—
The plaintiff was successful in an action against the defendant;writ was issued and a land was sold and purchased in executionby the plaintiff. When he proceeded to take possession he wasopposed by his debtor, the former owner of the land, who produceda transfer by him to his own son, and said he was possessing forhis son. who is not now in Ceylon, but he holds no power ofattorney for him, nor is he in any way his recognized agent.He must yield possession.
In the absence of his son. it is impossible to decide whether thetransfer was valid.
The defendant must be ejected and plaintiff declared entitledto possession. Set aside.
4;J. X. A 0S210 (1/47)
1
1901.
March 18
and 19.