Maharaj v Maharaj [1936] FijiLawRp 5; [1875-1946] 3 FLR 197 (21 December 1936)

[1875-1946] 3 FLR 197

SUPREME COURT OF FIJI

Civil Jurisdiction

MATADIN MAHARAJ

v

MUNNALAL MAHARAJ & OR.

Corrie, C. J.

December 21, 1936.

Bill of Sale — Chattels removed from premises by grantor — no allegation that removal fraudulent — whether a breach of covenant conferring right of seizure and sale — conflicting clauses in document — partly written, partly printed — construction — ownership of goods — whether plaintiff in tort estopped by Bill of Sale.

The plaintiff and one Ram Narain, had executed a Bill of Sale over furniture in favour of Munnalal, the defendant. The plaintiff removed the furniture from the house he occupied at the time of executing the Bill of Sale and within seven days of such removal the defendant, Munnalal, seized and sold the chattels. The Bill of Sale contained conflicting clauses as to when the power of seizure and sale became exercisable — a printed clause provided for exercise at any time after default and a typed clause for exercise "upon — such default continuing for the space of seven days".

The plaintiff sought to establish that he was in fact the sole owner of the chattels, which was contrary to the tenor of the Bill of Sale.

[EDITORIAL NOTE. — Ram Narain was originally a co-plaintiff in this action but on his application his name was struck out as co-plaintiff. He was then joined as a co-defendant against whom no relief was sought.]

HELD.—(1) In case of conflicting parts of a document which is partly printed and partly typed the printed part must be rejected in construing the document.

(2) A party to a deed is not estopped by the recitals of the deed if his action is not founded in the deed (though the recitals would be evidence).

Obiter Dictum.—In Fiji any removal of goods by the grantor of a Bill of Sale in breach of covenant, even though not fraudulent, confers upon the grantee the right to seize and sell.

Cases referred to:—

(1) Robertson v. French [1803] 4 East 135; 102 ER 779; 17 Dig. 249.
(2) Glynn v. Margetson & Co. [1893] AC 351; 62 LJQB 466; 69 LT I; 9 TLR 437; (1892) I Q.B. 337; 17 Dig. 350.
(3) North & South Insurance Corporation Ltd. v. National Bank Ltd. [1935] 52 TLR 71.
(4) Carpenter v. Buller [1841] 8 M. & W. 209; 10 L J Ex. 393; 151 ER 1013; 21 Dig. 280.
(5) Carter v. Carter [1857] 69 ER 1265; 27 LJ Ch. 74; 21 Dig. 208.

ACTION for damages for trespass, wrongful seizure, detention and sale of goods. The facts fully appear from the judgment.

D. Bagnall for the plaintiff.
S.Hasan