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Present: Fisher C.J. and Drieberg J.
DANIEL APPUHAMY v. ARNOLIS APPU.
174—D. C. Colombo, 19,968. .
Trust—Action to reconvey property—Money paid by plaintiff for .purchase—Prescription—Cause of action.y
■Where plaintiff sought to establish a claim to have certainproperty purchased in the name of the defendant conveyed toplaintiff on the ground that he had provided'the purchase money,—Held, that the cause of action in such a case arose -either whenthe defendant definitely declines to do what is requested of him orwhen it comes to the knowledge of the plaintiff that the defendanthas taken a-definite step, indicating that he regards himself as theabsolute owner of the property.
PPEAL from a judgment of the District Judge of Colombo.
Zoysa, K.C. (with Wijetoardene), for defendant, appellant.
H. V. Perera (with Weerasooria), for plaintiff, respondent.
November 12, 1928. Fisher C.J.—
This was an action in which the plaintiff claimed that he wasentitled to have certain property which was transferred to thedefendant by four deeds dated, respectively, December 25, 1904,August 27, 1905, September 13, 1905, and February -27, 1907,transferred to him on the ground that he had paid the purchasemoney and that the property had been purchased with his money inthe name of the defendant in trust. The case went to trial on threeissues, which are as follows :—
Did the plaintiff with his money purchase in the name of the
defendant half share of the land called Dalugahawatta by' the deeds mentioned in paragraph 3 of the plaint to be heldby the defendant in trust for the plaintiff ?
Was the house now standing on the land put up at the sole
expense of the plaintiff ?
Is t>he plaintiff’s claim prescribed ?
It lay on the plaintiff to establish that there was a resulting trustin his favour by reason of the fact that he had paid the purchasemoney. Such trusts are dealt with , by section 84 of the'trustsOrdinance, No. 9 of 1917,. which enacts that “ Where property istransferred to one person for a consideration paid or provided byanother person, and it appears that such other person did not intendto pay or provide such consideration for the benefit of the transferee,the transferee must hold the property for the benefit of the person.
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paying or providing the consideration,” and the first substantialquestion which arises for decision is whether or not the plaintiff paidthe purchase money for the transfers set out above.
In the course of the argument it seemed that the question ofwhether the plaintiff had shown that he “ did not intend to pay orprovide such consideration for the benefit of the transferee ” mightbecome important in view of the fact that the defendant was theplaintiff’s brother-in-law, that he had lived with him for some timein his youth, and that the plaintiff had said in his evidence “ Ipractically brought him up.” I think, however, that this questiondoes not arise because the attitude taken up by the defendant isthat the properties were all purchased with his own money and-thathe was more than amply provided with money from outside sourceswith which to purchase the properties. That being so, there wasno reason from a financial point of view why the plaintiff shouldhave adopted the position of benefactor to the defendant, and I donot think that it is necessary to consider any question based on theidea that the properties were given to the defendant by way ofadvancement.
That leaves, therefore, the sole question, whether on the evidencewe can hold that the learned Judge was wrong in finding as a factthat the purchase money was paid by the plaintiff. There areobvious. comments which suggest themselves, one of which iswhether, the plaintiff proved circumstances existing at the time ofthese transfers which constitute an explanation why they were takenin the name of the defendant. There is also the fact that thedefendant has undoubtedly remained in possession of the deeds.There is also the fact that the plaintiff delayed taking any actionto get the matter put straight even when, according to his evidence,he must have known that the defendant was not a man whom hecould trust. .Nevertheless the plaintiff’s evidence that the purchasemoney came out of his pocket is undoubtedly supported by evidencewhich it is difficult to attack on the ground of unreliability, and thelearned Judge who tried the case has deliberately, and after dueconsideration, decided that this evidence—and he paid specialattention to the evidence of Mr. Wijesinghe, the Notary—is reliableand trustworthy. And as regards Mr. Wijesinghe himself, as Mr.Perera pointed out in his argument, that if the defendant’s caseis a true one, Mr. Wijesinghe was on the occasions in question actingas the defendant’s Notary and it is difficult to explain why he .should now come forward and deliberately perjure himself.
As regards the evidence by the defendant that his rights had beenrecognized by the plaintiff by the allotment to him of a portion ofthe produce, there seems to have been no cross examination of theplaintiff on this point, and the learned Judge apparently placed noreliance on this evidence.
On the second issue the Judge, disbelieved the evidence of thedefendant. He alone gave evidence in support of his case.
On the first two issues, therefore, I think we should not be justifiedin finding that the learned Judge’s decision was wrong.
As regards the question of prescription, I think that a cause ofAction in a case like the present does not arise until the person in theposition of the defendant definitely declines to do what is requestedof him, when so requested, or, until it comes to the knowledge of theplaintiff that the defendant has taken a definite step which can onlyindicate that he regards'himself as the absolute owner.
The appeal is dismissed with costs.
DblebebG J—I agree.
DANIEL APPUHAMY v. ARNOLIS APPU