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Present: Ennis J.
ANDRIS v. PUNCHIHAMY.
78—C. R. Tangalla, 10,052.
Transfer of properly to defraud creditors—Action by heir of transferreragainst transferee to recover same—Trust.
Where A transferred his property to B without consideration,aud with the object of defrauding his creditors.
Held, that it is open to the heirs of A to sue B for the same.
fJlHJE facts appear from the judgment.
R. L. Pereira, for appellant.
Soert8z, for respondent.
August 18, 1922. Ennis *7.—
This was an action for declaration of title and ejectment. Theland in dispute belonged to one Dines who, on December 8, 1916,executed a dpcujncnt which purported to be a deed of sale f&rconsideration byw^ich he conveyed the property to the plaintiff.The plaintiff brings this action stating that Dines' widow, thedefendant, ousted *him from possession. The defendant admittedthe transfer, and stated that Dines had received no consideration,and that the deed was executed in trust. The learned Judge foundthat the deed had been executed by Dines in favour of the plaintiff,with the object of defrauding his creditors. The plaintifE was aparty to this semi-fraudulent transaction. I see no reason tointerfere with the finding of fact made by the learned District Judgethat the defendant was in possession of the land since Dines’ death,and that Dines himself had been in possession before the defendantand since the deed had been executed. I also see no reason toi titer fere with the finding of fact that no consideration passed on thedeed. Counsel for the appellant cited the case of Punchi Menikav. Dingiri Menika,1 where it was held that only a creditor who hasbeen defrauded can maintain an action to set aside a' deed. Itis, however, to be observed that in that case an earlier case(Mohamadu Marikar v, Ibrahim Naina 2) does .not appear to havebeen cited. The case of Mohamadxi Marikar v. Ibrahim Naina(supra) is remarkable in that it gives at length the reasons forapplying the English Equitable Doctrine to soften the rigour of theRoman-Dutch law. The case held in effect that, strictly under the1 Court of App. Cases, p. 93.* (1910) 13 N. L. if. 187.
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Roman-Dutch law, a' person who conveys with an intention todefraud is not entitled to any relief; but that in Roman-Dutch lawno person can enrioh himself at the expense of another, and» bymiugling the two doctrines, the English Equitable Doctrine wasapplied in that case. I would follow this principle, more especiallyin the .present case where the plaintiff seeks to enrich himself at theexpense of the defendant, who is in possession of the land.
I would accordingly dismiss the appeal, with costs.
ANDRIS v. PUNCHIHAMY