016-NLR-NLR-V-22-SILVA-v.-THEDIRIS.pdf
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Present: De Sampayo J. and Dias A. J.
SILVA v. THEDIRIS.
369—D. C. Oalle, 16,mj8.
Sal« of land subject to a mortgage—Mortgagee estopped from denying
mortgagor'8 title.
A, B, and C (who were brothers) owned equal shares of a piece ofland. B effected a mortgage of his share in favour of A, and inthe bond his share was described as one-sixth share of the soil andof all the trees on it. During the pendency of the mortgage plaintiffbought the shares of B and C and paid A the amount due to himon the mortgage.
A claimed to be exclusively entitled to tlie second, third, andfourth plantations on the land.
Held, that A was estopped by reason of the mortgage bondfrom disputing B’s right, to the plantations.
n THE facts are set out in the judgment of the Acting District. Judge (F. J. Soertsz, Esq.):—
The plaintiff sues the first defendant to be declared entitled to aone-third of all the soil and plantations of a defined portion of the landKerawakmullewatta.
The second and tlfird defendants arehia vendors, andhave been addedfor the purpose of warranting and defending the title they conveyed,to him.
The plaintiff’s sheet anchor is document P 2. His reliance on it iswhole-hearted, and he has even infected the Vidane Arachch^ with hisenthusiastic confidence in this document to the extent that this officialhas favoured us with his judicial views on the subject. “ I consider,”he says, “ that the complainant’s share is right, as there is no separationof any planter’s share in the mortgage bond annexed to the bill of sale.”I wish I could say as much. But, while I concede to P 2 very strong-evidentiary value, I cannot hold that it operates as an estoppel andprevents the first defendant from denying plaintiff’s title to one-third of.the soil and plantations.
v I admit the plaintiff has been influenced by this document P 2, and,perhaps, would even not have purchased the one-third if he did not feelsatisfied, On the strength of that mortgage bond, that his vendees wereentitled to one-third of the plantations as well, but yet I cannot hold thatthere is an estoppel. The words of section 115 of the Evidence Act are“ When one person has by his declaration, act, or omission intentionallycaused or permitted another person to believea thing to be true ….
neither h on or his representative shall be allowed …. todenythetruth of that thing.” The word “intentionally” is crucial, and must be-allowedfullsignificance. The word is not “voluntarily,” but “ intention-ally,” and Ithinkit will befar-fetchedtosaythat when the firstdefendanttook the mortgage bond P 2 from his brother in those terms, he intended
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1920. to permit or oause the plaintiff or another person to believe the aver-— ment in the bond as regards plantations and to act upon that belief.SUva t». No doubt, he has by his carelessness, indifference, or negligence broughtThtdfota about that state of things, but it cannot be said that he intended it.
The difference may be summed up by saying that the firstdefendant has oaused the plaintiff to act in this manner, but withoutintending it.
I answer the second issue in the negative.
As I have already said, although P 2 does not operate as an estoppel,it serves as a strong piece of evidence in favour of the plaintiff, and theonly question is, whether the first defendant has placed before me morecogent evidence in support of his case than P 2 affords against him.I think he has.
The question in' dispute is, whether the second, third, and fourthplantations are common, or whether the first defendant is entitled to.the planter’s share thereof, and on that question the weight of P 2is, I think, more than counterbalanced by the plaintiff's own docu-ment, P4-'
P 4 was read in evidence to establish the correctness of the soil sharethe plaintiff claimed, but it throws a flood of light on the controversy. with regard to the plantations. . Perhaps that was not noticed at thetiraeP 4wasput in. In the case with which P 4 deals, the first defendantin this case was the fifteenth defendant, and the second and thirddefendants were the eighteenth and nineteenth defendants respectively,and the three of them and some others joined in filing one answer, andin stating in the ninth paragraph of that answer “ that the fifteenthdefendant (i.e., first defendant in this case) planted the younger planta-tions in the.said lot, and the said plantation consists 'of 80 coconuttrees, 12 breadfruit trees, and 25 arecanut trees.” This piece ofevidence is at least as strong as P 2 on the other side, and the firstdefendant’s case is further supported by D 1, a document of the year1893, and by several other documents, as well a3 by the fact that thesecond and third defendants have been living for many years awayfrom the village and are not at all likely to have had. anything to dowith these plantations.
I enter judgment for the plaintiff for one-third of the soil of firstplantation, and Rs. 25 a year for his share of the produce which thefirst defendant has been in possession of. The planters' shares ofsecond, third, and fourth plantations are excluded in favour of the firstdefendant.
The plaintiff, apart from the question of plantation, had to institutethis action, as there seems to have been a substantial dispute as to theextent of his soil share, and I, therefore, award him half costs.
A. St. V. Jayawardene, for the appellant.
E. Garvin, for the respondent.
May 10,1920. De Sampayo J.—
The real dispute in this case is as to certain plantations on theland in question . The plaintiff sought to vindieate one-third shareof the soil and of all the trees on the land which he purchased onApril 6' 1918, from the second and third defendants. The firstdefendant would appear to have disputed his. right both to the
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share of the soil and of the plantations, bat at the trial the dispute 1920.
was confined to the second, third, and fourth plantations, which the
first defendant claimed for himself. The District Judge decided Sj^*AY°in favour of the first defendant, over-ruling an objection found*'1 on -7—estoppel, and the plaintiff has appealed. We have only to consider ^hMiriathe question of estoppel. It appears that the second and thirddefendants are brothers of the first defendant, and each of them wasentitled to an equal share. In the year 1910 the second defendanteffected a mortgage of his share in favour of the first defendant.
In the bond his share was described as one-sixth share of the soiland of all the trees on it. This mortgage was in subsistence at thetime of the purchase by the plaintiff, and, in fact, in the deed of salehe reserved a certain sum of money out of the consideration, with theview of paying the mortgage and redeeming-the land. The plaintiffset up this circumstance as estopping the first defendant fromdiluting the right of the second defendant, and, necessarily, alsothe right of the third defendant, each to one-sixth share of the soilas well as of the plantations. The District Judge held, as a matterof fact, that the plaintiff was influenced by the terms of the mortgagebond, and would not have purchased the share if he was not satisfiedon the strength of the mortgage bond that his vendees were entitledto one-third of the plantations as well as the soil. But he con-sidered that the first defendant could not, in the words of section 116of the Evidence Act, be said to have “ intentionally ” caused orpermitted the plaintiff to believe what he did as to the right of hisvendors. He gave a very strict construction to the word “ inten-tionally’1 in the section of the Ordinance. That point has beenthe subject of more than one decision of this Court. Referencemay be made to Sadris Appu v. Cornells Appu1 and Stuart vHormusjee,2 The word “ intentionally ” was fully discussed andconsidered in those cases with reference to certain judgments ofthe Privy Council; and, in the first of these cases, this passageoccurs: “ It is a principle of natural equity that when A allowsanother to hold himself out as the owner of A’s property and athird person purchases it for value from the apparent owner in thebelief that he is the real owner, A shall not be permitted to recover,unless he can prove that the purchaser had direct notice of thereal title, or that there existed circumstances which ought to haveput him on inquiry which, if pursued, would have led to a discoveryof it.” Now, the first part, of that proposition is satisfied in thiscase by the finding of the District Judge that the first defendantdid, in fact, cause the plaintiff to believe what he did, and there isno evidence, nor did the first defendant in any way attempt toprove, that the plaintiff, when he purchased from the second andthird defendants, had notice of the real state of the title, or that therewere circumstances which ought to have put him on an inquiry.
(1905) 8 N. L. R. 380.
* (1915) 18 N. L. R. 489.
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1920.
Dus SaupayoJ.
Silva v.Thediris
As regards the word “ intentionally,” it was laid down that it wasused in the Evidence Ordinance so as to bring the law of estoppelin India and Ceylon into line with the law of England on the samesubjeot, and, accordingly, what was emphasized was not so muchany express intention on the part of the person who makes therepresentation, but the character of his conduct which wouldnaturally lead a reasonable man to believe a certain state of factand to act upon it. The circumstances of the case quite show thatthe conduct of the first defendant was such that he must be taken tohave intended any person dealing with his mortgagor to act on thebelief that the mortgagor was entitled to the share mortgaged.It is true that in the case there is no specific evidence that in con-nection with the purchase the first defendant produced his mortgagebond and showed what he, had, in fact, taken on mortgage. Butthe plaintiff had, according to the finding of the District Judge,held the inquiry necessary for the purpose of informing himselfas regards the terms of the mortgage bond, and, finally, after he hadmade the purchase, he paid the first defendant the amount of thedebt due on the bond and redeemed the mortgage.. I think theDistrict Judge was wrong in holding that the section of the EvidenceAct was not satisfied by the actual circumstances of the case.I would accordingly modify the decree appealed from, and declarethat the plaintiff is entitled to a one-third share, not only of thesoil, but of all the trees on the land. I think the plaintiff is entitledto the costs of the action and of the appeal.
Dias A.J.—
I entirely'agree. The question is not so much whether the firstdefendant intended the plaintiff or any one else to act upon themortgage bond, which the first defendant accepted from .his brotherin 1910 on the footing that the latter was entitled to a share of allthe plantations also, but the question is, whether the plaintiff orany one else also did, in fact, act upon that representation in thebond and so altered his status to his prejudice. If so, I think anestoppel as defined in section 115 of the Evidence Act certainlyarises. I agree to the order proposed by my brother De Sampayo.
Varied.