014-SLLR-SLLR-2006-V-2-NAMALEE-AND-OTHERS-vs.-JINORIS.pdf
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Narralee and Others vs. Jinoris
93
NAMALEE AND OTHERSVS.JINORISCOURT OF APPEALWIJEYARATNE, J.
CA 1120/2003 (F)
DC PANADURA 1554/L.
OCTOBER 31, 2005.
DECEMBER 12, 2005.
Action to set aside Deed-Misdirection on the preliminary facts-EvidenceOrdinance Section 101, Section 102-Burden of proof of the fraud asserted?- Corroboration?- Failure of defendant to give evidence of inferences?-Civil Procedure Code, Section 163
The Plaintiff-respondent instituted action seeking to set aside a deed ofgift. It was the position of the plaintiff-respondent that, the 2nd defendant-appellant on the pretext of helping the plaintiff-respondent to obtaincompensation for the portion of the land acquired made false andfraudulent representations to the plaintiff-respondent who is an old andfeeble person and got him to sign the impugned deed without knowingthat he is signing documents to convey a land belonging to him. Thedefendant-appellant denied the position taken up by the plaintiff-respondent. The trial Court held with the plaintiff-respondent.
HELD:
There was a serious misdirection on the primary facts which vitiatethe judgment.
The trial Judge failed to observe the character of the witness whotended to change his version to suit the occasion.
If the statement of claim alleges a case of fraud, and the right torelief rests upon that fraud only, the action will be dismissed, ifthe fraud as alleged is not proved and the onus of proving fraudlies upon the person who alleges it and does not lie on thedefendant to prove the negative.
The trial Judge erred in awarding damages, when he concludedthat damages are not proved.
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The trial Judge has failed to consider that the plaintiff-respondenthas failed to make out a case of fraud as alleged and thereforethere is no legal obligation on the part of the 2nd defendant or anyother defendant-appellant to explain by adducing evidence, whatis not established.
APPEAL from the judgment of the District Court of Panadura.
Cases referred to :
Ranchagoda vs. Viola – 1999-2 Sri LR 1
Citizen Standard Life Insurance Company vs. Gillery Taxes – CivilAppeal- 521 SW 2d.
Toker vs. Toker- 1863. The Law Times Vol. VIII page 525
Dona Caralina vs. Jayakody-33 NLR 165
Edrick de Silva vs. Chandradasa de Silva – 70 NLR 169 at 174
Nihal Jayamanne PC with Ajith Munasinghe for 1 st and 2nd defendant-
appellants.
•Ranjan Suwandaratne with Mahinda Nanayakkara for plaintiff-respondent.
Cur.adv.vult.
March 3, 2006.
WIJEYARATNE, J.
The plaintiff-respondent instituted action against the 1st to 3rddefendant-appellants seeking a declaration that deed of Gift No. 167dated 12.08.1999 attested by Lilan Indith Weerasuriya, Notary Publicis a fraudulent deed which does not convey any right or title to the 1 stdefendant and the same is void and has no force or effect in law and toeject the defendants from the premises described in the schedule tothe plaint and recover damages. The plaint further sought injunctiverelief preventing the defendants from building thereon. The cancellationof the deed was sought on the premises described morefully inparagraphs 6 and 7 of the plaint and paragraphs 7 and 8 in the
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accompanying affidavit of the plaintiff-respondent to wit; that the 2nddefendant-appellant on the pretext of helping the plaintiff-respondentto obtain compensation for the portion of the land acquired made falseand fraudulent representations made to the plaintiff-respondent who isan old and feeble person, got him to sign these documents withoutknowing that he is signing a document to convey the land described inthe schedule and believing that the 2nd defendant-appellant genuinelyattempted to help him sign these documents which he later found tobe in the form of a deed of gift bearing No. 167 referred to above.
The plaintiff-respondent obtained an order from the Court enjoiningthe defendants-appellants from building on the land in suit and uponservice of such order, notice of injunction and the summons in thecase the defendants filed answer refuting the allegations and statingthat deed No. 167 was a genuine deed whereby the plaintiff-respondentvoluntarily gifted the land in suit to his niece, the 1 st defendant-appellantwho is the daughter of the 3rd defendant-appellant and the wife of the2nd defendant-appellant. They also showed objections to the issue ofinterim injunction. The Court after inquiry into the matter of applicationfor interim injunction refused the same and vacated the enjoining orderalready issued. Thereafter when the case came up for trial, the partieshaving recorded four admissions, suggested several issues for trialand on the subsequent date recorded a further admission to the effectthat the plaintiff-respondent did not dispute the signature appearing onpage three of the impugned deed No. 167 marked P7 or V3.
Thereafter the plaintiff-respondent, two official witnesses and theplaintiff-respondent’s daughter testified for the prosecution reading inevidence documents marked P1 to P10. At the close of the Plaintiff-Respondent’s case, on behalf of defendants-appellants evidence ofthe surveyor who surveyed the land and prepared the plan referred toin the deed, an official from the local authority which approved the planand the attesting notary and one attesting witness were adduced. Uponconclusion of proceedings the learned District Judge having answeredthe several issues the way he did, entered judgment in favour of theplaintiff-respondent granting all the reliefs claimed including damageswhich the learned District Judge himself held not to have been proved.Being aggrieved by the said judgment dated 29.09.2003 the defendants-appellants lodged this appeal.
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When the appeal was argued it was urged on behalf of the appellantsthat the learned District Judge has failed to consider, analyze andevaluate evidence in their correct perspective, made erroneous findingsnot supported by any evidence, acted on assumptions rather than onevidence and erred in fact and law especially with regard to the burdenof proof and corroboration.
On a perusal of evidence on record and the Judgment, it is apparentthat the learned District Judge has proceeded on the basis that theland in suit abuts Galle-Colombo Main Road (Vide Page 1 and 9 of theJudgment) and lost sight of the fact that the land in suit is situated atKesbewa and misdirected himself on the primary fact of location ofthe land which vitiated the judgment impugned. In Ranchagoda vs.Viola(1)he Supreme Court held :
“The District Judge had failed to appreciate that according to theplaintiff lots 1 and 2 which found the subject matter of the action werenot paddy lands. This was a serious misdirection on the primary factswhich vitiate the judgment of the District Court.”
The learned District Judge answered issue No. 2 to the effect whetherthe plaintiff was old and feeble, in the affirmative when the evidence onrecord touching the fitness or health condition is limited to the barestatement of the plaintiff-respondent only and there is absolutely noother evidence led on the subject. The unequivocal evidence of theplaintiff-respondent was that about the time he signed the documents,though he was of the age of 75 years he was in good health and hecycled distance over 1 Vfe miles daily to reach the land in suit. Withthis specific statement of the plaintiff and in the absence of any otherevidence the learned District Judge misdirected himself as to the healthcondition of the plaintiff-respondent that led him to answer the issue tothe effect that he was feeble and based on such erroneous conclusion,he proceeded to consider evidence of alleged misrepresentation andfraud.
The Plaintiff-Respondent had presented the plaint on the basis thatthe 2nd defendant who is his close relation made false representationthat he would facilitate obtaining compensation for the land acquiredand fraudulently obtained his signature to these documents which later
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turned out to be the impugned deed of Gift No. 167. However whencalled upon to describe the incident of his signing documents theplaintiff-respondent stated that the 2nd defendant-appellant who kepta bottle of kerosene oil under the chair, threatened to set fire to thedeeds and compelled him to sign the documents without anyexamination. He categorically stated that he signed the documentsthrough fear (Page 217 of the brief.) He thereby clearly speaks of threatand duress which if proved would affect the validity of the documentsso signed. The learned District Judge has completely lost sight of thisaspect of the whole episode as described by the plaintiff-respondent.
In the first place it changes the character of the action as pleaded,a case of false representation amounting to fraud being converted to acase of threat and duress. However even such threat and duress asspoken to by the witness cannot be accepted by a prudent person inview of the fact that he has not mentioned any such threat in twopolice complaints P 6 and P 8. Nor has he mentioned to any one inauthority or otherwise, not even his daughter, of such threat and duressbrought upon himself by the 2nd defendant-appellant. As such thelearned District Judge correctly analyzing his evidence should haveobserved the character of the witness tending to change his version tosuit the occasion and such tendency would affect his credibilityspecially in discharging the burden of proof of the fraud he asserts andwishes the Court to give Judgment on in terms of section 101 and 102of the Evidence Ordinance.
Law of Contracts by C. G. Weeramantry Vol. 1 Page 319 states:
“The onus of proving fraud lies upon the person who alleges it and itdoes not lie on the defendant to prove the negative.”
KERR on the Law of Fraud. 7th Edition page 670 state :
“If the statement of claim alleges case of fraud, and the title to reliefrests upon that fraud only, the action will be dismissed, if the fraud asalleged is not proved.”
In the case of Citizen Standard Life Insurance Company Vs. GilleryTaxesf2)it was held:- “Statements of a cause of action for ‘fraud’ include
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false representation of a present or past fact made by defendant, actionin reliance thereupon by plaintiff, and damages resulting to plaintifffrom such misrepresentations.”
In Toker vs. Tbke/<3>: “There is no general presumption against thevalidity of gifts as such, and in the absence of any special relation” inwhich influence is presumed the burden of proof is on the personimpeaching the transaction, and he must show affirmatively thatpressure or undue influence was employed.
Considering the evidence for the plaintiff-respondent in the light ofthe above statements on law, the plaintiff-respondent has not establishedthe element of fraud on the part of the 2nd defendant-appellant in theexecution of the impugned deed of gift No. 167; nor is there evidenceof any other defendant-appellant being guilty of fraud.
On the matter of probability of the 2nd defendant-appellant makingsuch false representations, the plaintiff-respondent’s own witnessNandasiri representing the Divisional Secretary’s Office gaveunequivocal evidence that the matter of obtaining compensation forthe land acquired, was personally attended to by the plaintiff-respondenthimself who made relevant applications in his own hand writing andcollected the amounts payable to him. This creates serious doubt asto there being any necessity for the plaintiff-respondent to seekassistance from any third party, be it the 2nd defendant-respondent orany other person to collect his dues and when there is no such need,it is highly improbable that he would have done any thing, includingsigning any document at the threat of a third party. The learned DistrictJudge has failed to consider the effect of the evidence of Nandasiri onthe probability of the version given by the plaintiff-respondent.
So far as the execution of the impugned deed of gift No. 167, thelearned District Judge has seriously misdirected himself on facts andproceeded on the basis of assumptions. Firstly the learned DistrictJudge states that the plaintiff-respondent had no reason to gift theproperty without reserving life interest or without any monetoryconsideration being paid. The Learned District Judge has notconsidered the effect of V2 the signature on which document theplaintiff-respondent admits is “like his signature” but offers no
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explanation as to how such a document came into existence. On theother hand, the learned Judge without any supporting evidenceconcludes that the plaintiff-respondent who gifted land on deed No.159 within three months has no reason to gift the land in suit on deedNo. 167. The gift of deed No. 159 is without reservation of any lifeinterest and the plaintiff-respondent who clearly admitted havingexecuted deed No. 159 had every reason to make such gift not only tohis niece the 1st defendant-respondent but also in favour of the 2nddefendant-appellant as well, has escaped the attention, considerationand evaluation on the part of the learned Judge. His conclusion thereforeis irrational and lacks any legal or reasonable basis.
On the other hand the learned District Judge who accepts the factthat deed No. 159 was duly executed by the plaintiff-respondent beforethe same attesting Notary has failed to consider the fact that theplaintiff-respondent has in his evidence categorically stated that hehas never met this notary nor did he know him. Their executionaccording to the attestation of deed No. 159 has taken place barelythree months prior to the impugned deed being executed on 12.08.1999and that denial of any knowledge on the part of the plaintiff-respondentseriously affected his credibility is not considered at all by the trial Judge.
Due execution of the deed No. 167(P7) is testified to by both theattesting notary who unambiguously stated that he knew the plaintiff-respondent and one attesting witness Don Jayasena without anycontradiction and no allegation whatsoever of bias was made againstany of them. The trial judge has treated that they are not independentwitnesses as they have been employed or engaged by the 2nddefendant-appellant. The learned trial Judge has failed to consider thepractice that the matter of preparation of the deed and securing dueexecution of a deed is a matter for the beneficiary of the deed and hisprocuring witnesses and enlisting the services of a notary of his choiceis the done thing. Uncontradictory evidence of the notary and theattesting witnesses against whom there is not at least an allegation ofbias, along with the fact of plaintiff-respondent not disputing thesignature on page 3 of the deed No. 167 as his, have by acceptednorms and standards of proof, amounted to the proof of due execution.The learned trial Judge without any rational basis and on ill considerationof attendant circumstances has concluded that due execution is notproved.
2- CM 8093
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In this regard the learned Trial Judge has seriously misdirectedhimself on elementary matters of evidence. The notary hasunequivocally stated that he knew the plaintiff-respondent as a pensionerover a period of one year; but the learned trial Judge has gone on thebasis that the notary did not know the plaintiff-respondent and thewitness as having said that the notary visited the 2nd defendants housevery often. In fact what the witness has stated is that the lawyer notaryoften visited the office of the architect behind the house of the 2nddefendant-appellant. The learned Trial Judge has thus seriouslymisdirected himself on basic facts testified by the witnesses. Hisfindings and conclusions therefore are untenable in law.
With regard to corroboration of the evidence of the plaintiff-respondentthe learned trial judge has failed to appreciate that any of his complaintsto police prior to action being filed did not make any mention of theepisode he described in the witness box. However the learned trialjudge has considered the evidence of his daughter, who stated whatwas told to her by the plaintiff-respondent as corroboration. He hasnot appreciated the rule that what a witness who is told something bythe principal witness afterwards, states, is no corroboration. Vide thedecision of Dona Carlina vs. Jayakody<4).
However, the learned trial Judge looking for corroboration in thetestimony of plaintiff-daughter failed to consider that the incident ofthreat and duress said to have been brought upon the plaintiff-respondent is not told to his daughter and there is no corroboration onmost material aspects of the fraud alleged.
On the matter of damages the learned trial judge who concludedthat damages are not proved proceeded to award Rs. 3,000 a monthwithout any evidence or basis of estimation. Therefore the same is notlawful.
Lastly the learned trial judge has commented on the failure of the2nd defendant-appellant to give evidence. What the learned trial judgefailed to consider is that the plaintiff-respondent has failed to makeout a case of fraud as alleged, failed to establish the cause of actionpleaded in his plaint and therefore there is no legal obligation on thepart of the 2nd defendant or any other defendant-appellant to explainby adducing evidence, what is not established Vide, in the case of
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Metagala vs. People’s Bank
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Edrick de Silva vs. Chandradasa de SilvefS) at P174 H.N.G. Fernando
C.J. (with the other two Judges agreeing) observed that “
Section 163 (of Civil Procedure Code) of course does not have theeffect that the opposing party must actually lead evidence, and thatJudgment against him will follow if he does not. For instance his counselcan in appropriate circumstances be content to submit that the factsproved by the plaintiff do not establish the pleaded cause of action ordo not entitle the plaintiff to the remedy he seeks, or that the plaintiffmust fail on some ground of law.”
For the foregoing reasons I hold that the findings of the learned trialjudge are not supported by evidence, nor are they rational or lawful. Inthe result the Judgment dated 29.09.2003 is set aside and vacatedand the plaintiff-respondent’s action is dismissed with costs. The appealis allowed with costs.
Appeal allowed.