SHAKVANAMDA, J.—Fakir Saibu o. KairuJ. Ra&ika
1976 Present: Pathirana, J., Sharvananda, J., and Rat watte, J.
A. L. PAKIR SAIBU, Appellant, and P. S. KAIRUL RASIKA,
S, C. 458/68—D. C. Matara 2623/M
Evidence Ordinance-—Sections 92, and 99— Applicability of Section 92to persons not parties to the instrument and not their representa-tives in interest—Third party prejudiced by the ostensible natureof the instrument—third party not so prejudiced.
A person who is not a party to a document or his representativein interest is uninhibited by the prohibitory rule contained inSection 92 of the Evidence Ordinance provided such person has aninterest in showing the true nature of the transaction and who isprejudiced by the ostensible nature or form of the instrument ;Section 92 applies however to strangers who would not be soprejudiced.
_/.PPEAL from a judgment of the District Court, Matara.
H. W. Jayewardene, with J. E. P. Deraniyagala and Miss. S.Fernando, for the Defendant-Appellant.
N. R. M. Daluwatta for the Plaintiff-Respondent.
Cur. adv. vult.
January 29, 1976. Sharvananda, J.—
The plaintiff instituted this action on 1st October, 1966, againstthe defendant for the recovery of a sum of Rs. 7,980 being herhalf share of the profits of cultivation of the field, the subjectmatter of this action, for the period of three years prior to theaction and for continuing damages at Rs. 2,660 per year till thedefendant was ejected from the premises in suit. The plaintiff isthe daughter of the defendant. She claims to be entitled to thesaid half share on deed No. 2502 (PI) dated 11.2.52 and attestedby R. G. W. Nilaweera, N.P., by which deed one Abdul Salam,the brother of the defendant, conveyed to the plaintiff and herbrother the entirety of the land in suit, half share each.
The plaintiff claimed the aforesaid amount on the basis thatthe defendant was a tenant-cultivator of the field, the subjectmatter of this action, in terms of the Paddy Lands Act of 1958,or that he was in wrongful possession of the field from 1963.
The defendant filed answer disclaiming that he was ever thetenant-cultivator under the plaintiff and denying the plaintiff’stitle to the field in question on the ground that:(a) the
SHARVAJNAJNX)A. J.—JPak'tr Sait*u r. K^rirul Rasika
defendant’s brother Salam bought the premises in question outof the profits of a partnership business with the defendant andthat as Salam held the property in trust, he had no power todispose of the premises to the plaintiff and her brother ; and (b)the deed PI in favour of the plaintiff and her brother wasexecuted without consideration and was in fact a deed of dona-tion, and, as the parties are Muslims, governed by the MuslimLaw, since no delivery of the possession of the property conveyedon the said deed No. 2502 (PI) was given to the plaintiff and herbrother—both of whom were admittedly minors of the ages of Sand 7 respectively at the time of the execution of the deed—thedeed was void in law, and was not effective to convey any titleto them.
The defendant also claimed prescriptive title to the property,but that claim could not be sustained as the plaintiff became a.major only in 1964 and this action was filed in 1966.
The plaintiff, in view of the denial of the defendant, abandonedthat allegation that the defendant was in occupation of the fieldas tenant—cultivator under the plaintiff, but raised issue (3) :
“ Has the defendant been in unlawful and forcible possession of the plaintiff’s half-share from about the commence-ment of the cultivation season of Yala in 1963 ?
On the evidence led in the case, the District Judge answeredthe issue in favour of the plaintiff and entered judgment for thePlaintiff in a sum of Rs. 6,480 as damages only. The defendanthas appealed from the order of the District Judge and theplaintiff has filed cross-objections.
The District Judge rejected the defendant’s story that thepremises were purchased out of the profits of a partnershipbusiness and that Salam, the transferor on deed PI, as suchtrustee, could not have disposed of the premises by Pi. On theevidence on record, the District Judge was justified in holdingagainst the defendant on this issue ; that finding was notseriously challenged in appeal.
The main attack by Counsel for the defendant-appellant wasdirected against the Judge’s conclusion that the deed No. 2502(PI) conveyed title to the premises to the plaintiff.
SHARVAKAJTDA, J.—Pakir Saibu v. Kairu' Pasi/ca
The question whether deed No. 2502 conveyed good title tothe plaintiff arises on the following undisputed facts found by thetrial Judge : —
The plaintiff was a minor child in 1952 when her uncle Salamtransferred to her and her brother the land in question on deedPI. Ex facie, it is a sale of the property to the two minors for aconsideration of Rs. 10,000, but the consideration stated in thedeed was waived by the alleged vendor Salam in favour of thevendees. The defendant had been in possession of the premisesfrom the time of the transfer, but it is not certain whether hewas in such possession on behalf of the minors or not. The plain-tiff attained majority only in the year 1964. Since the institutionof the action, Abdul Salam, by deed No. 3026 dated 7th October,1967, (D9) has, on the alleged basis that deed No. 2502 (PI) wasin fact a deed of gift, purported to revoke the alleged donation.At the trial, Salam supported the defendant’s allegation that PIwas in fact a donation. Both the defendant and his brother Salam,according to the trial Judge, “ are determined to see that theplaintiff does not benefit by PI and they are now attempting tomake out that, in any event, PI partakes of the character of agift which Salam could, by his unilateral act, revoke. ” On thebasis that PI is a deed of gift, since no consideration passed fromthe plaintiff to Salam and as possession, actual or constructive, ofthe land was not delivered to the plaintiff by Salam, thedefendant contends that the deed PI conveyed no title to theplaintiff.
The deed No. 2502 (Pl) is, on the face of it, a deed of sale.Salam, as vendor, sold and transferred to the plaintiff and herbrother the field in question for the consideration of Rs. 10,000.On the said deed, title to the premises passed to the plaintiff andher brother. The trial Judge has accordingly held that theplaintiff is entitled to an undivided half share of the field andthat it is not open to the defendant to- make out that the trans-action PI which, on the face of it is a sale, is in fact a donationand that, on the footing that it is a donation, it failed on theground that no possession, actual or constructive, of the propertywas delivered to the donee.
Mr. Jayawardena, Counsel for the defendant-appellant, urgedthat section 92 of the Evidence Ordinance inhibits the applicationof that section to the parties to the instrument only and that theprohibition against contradicting, varying, adding to or substrac-
SHABVAKAJTDA, J.—Fakir Saib-u v. Kairul Rasika
ting from the terms of the instrument does not operate againstparties other than the parties to the document. He submitted thatthough Salam, the transferor on PI, could not have made out thatthe transaction evidenced by PI was not a sale but was a dona-tion, the defendant, who was a third party to the instrument,could have led evidence tending to show that the true nature ofthe transaction was different from what it was represented by thedocument. According to him, the provisions of section 92 applyonly as between the parties to the instrument or their represen-tatives in interest and that the defendant was not precluded fromadducing evidence to show that PI was, in fact, a donation,though ex facie it purported to be a sale. He referred to the caseof Rajah V. Nadarajah, (44 N.L.R. 470) and also submitted thatthe whole transaction, in any event, failed as a sale for want ofmutuality, there being no consensus between the plaintiff, whowas at that time aged nine oply and was unaware of the execu-tion of the deed PI, and the alleged vendor Salam.
“ It is undoubtedly the law that the consideration is an essentialterm in a contract of sale and that section 92 of the EvidenceOrdinance debars a party to the deed of sale from adducing parolevidence to prove that the consideration for the deed was notmoney and therefore the deed was not a sale but represented anentirely different transaction. ” — Thomas V. Fernando (57N.L.R. 528). “ It is also the law that a deed which, on the face ofit, is a transfer for a consideration cannot be held to be a donationmerely because the transferor did not receive the consideration ”.Nona Kumari V. Abdul Cader (47 N.L.R. 457).
A superficial reading of sections 92 and 99 of the EvidenceOrdinance lends plausibility to Mr. Jayawardena’s argument.The head-notes in the case law cited by him also tend to supporthis submission. But, is it competent for any third party, whetherhe claims or not any interest in the subject matter of the trans-action embodied in the deed, to adduce oral evidence to show thatthe rights of the patties to it are at variance with the rightsostensibly created and declared by the instrument ? An analysisof the case law however suggests that the third party, who isuninhibited by sections 92 and 99, must be a party who has aninterest in showing the true nature of the transaction, and whois prejudiced by the ostensible nature of the instrument. Theprohibitory rule “ cannot affect third persons who, if it wereotherwise, might be prejudiced by things recited in writings,contrary to the truth, however contradictory it may be to the
SHARVAiTANDA, J.—Fakir Saibu v. Kairul Rzsika
written statements of others” (section 1149, at page 735, Vol. IIof Taylor on Evidence — 12th Ed.), but precludes strangers whowould not be so prejudiced. In the present case, the defendanthas no rights in or claims to the property and no rights of his aredefeated or affected by the recitals in the deed. Whatever be thetrue nature of the transaction, he does not stand to benefit by thedisclosure of the truth. He has no independent interest in theproperty.
In the case of Rajah v. Nadarajah (44 N.L.R 470), the factswere as follows : The plaintiff instituted the action to be declaredentitled to one-third share of certain premises on the strengthof deed P3 of 1927 in his favour from his father, the added-defendant. The 2nd defendant claimed that he was entitled tothe property by virtue of a Fiscal’s transfer D31 of 1929 in hisfavour, the property having been sold in execution against theadded-defendant. There was a competition between the deedof transfer (P3) in favour of the plaintiff and the Fiscal’stransfer D31 in favour of the 2nd defendant. In thac context,the form given to the transaction was held not to be the govern-ing consideration and it was open to the 2nd defendant tc showthat P 3 was not a sale, not only because the consideration hadbeen shown to be false, but also because there was no mutualitybetween the added-defendant and the plaintiff and was merelya device by the added-defendant for putting his property beyondthe reach of his creditors. P 3 could neither be regarded as asale, nor could it be regarded as a donation as, on the facts,there was no acceptance. In order to establish the validity of histitle D31, the 2nd defendant had to show the true nature of P3.In the instant case, the defendant had no proprietory interestin demonstrating that the deed No. 2502 (PI) was neither asale nor a valid donation.
In the case of Appuhamy v■ Ukku Banda (41 C. L. W= 43),it was held that the defendant, who was not a party to the deedD7, could prove an oral agreement in the nature of a trust inhis favour for the purpose of contradicting, varying, adding to orsubtracting from the terms of D7. The oral evidence was tothe effect that the conveyance D7 in favour of the plaintiff byone Appuhamy was subject to the condition that the plaintiffshould convey the property to the defendant on receipt of acertain sum, though there was no such clause in the instrument.One could see that the defendant would have been prejudicedby the exclusion of such oral evidence.
SECAKVANAJUJA, J.—Fakir Saibu u. Kairul Haaika
In the case of Theivanapillai v. Sinnappillai ( 3 C. L. Rec. 46 ),
A ’ conveyed a property to * B ’ under a verbal agreement that
B ’ should reconvey the same to ‘X’, and * B ’ subsequentlyrefused to do so. It was held that ‘ X ’ who was not a party tothe conveyance, could lead oral evidence of the agreement. Onesees that ‘ X ’ had a pertinent interest in showing what werethe terms of the agreement between ‘ A ’ and ‘ B ’.
In the case of Sellasa'my v. Kaliamma (46 N. L.. R. 76), adeed of gift by the deceased father to his son, the appellant,was stated to be in consideration of natural offspring love thatthe deceased had towards the appellant in expectation of allnecessary aid and assistance during the deceased’s life time.The Privy Council held, for the purpose of deciding whetherthe appellant should bring such a gift into collation or hotch-potch in the distribution of his father’s estate, in terms ofsection 35 of Chap. 57, Vol. Ill, on the ground that it was givenon the occasion of his marriage, that the lower Court wasclearly right in admitting evidence to show that the gift wasmade in contemplation of marriage. The intestate heirs of thedeceased had a personal interest as affecting them in showingthe true nature of the consideration for the gift by the deceased.
Similarly, a pre-emptov may prove against the vendor thatwhat purports to be a mortgage or donation was in fact a sale(1927 A.I.R. Allahabad 204). Here, the pre-emptor has a personalinterest in showing the real nature of the transaction. He is notbound by the apparent form in Which the transaction takesplace which was calculated to defeat his claim or right.
Counsel for the Defendant-Appellant relied on the case ofBageshri Dayal v. Pancha (28 Allahabad 473) where the proposi-tion was stated that the plaintiff, not being a party to thetransaction, was entitled to show that what purported to be ausufructuary mortgage was not in reality such, but was in facta sale. If it was a sale, the plaintiff was entitled to one-fourthof the proceeds of the sale according to custom. Hence, it wascompetent for him to challenge the transaction and show thetrue nature of the transaction to entitle him to his share of theproceeds. He was prejudiced by the apparent nature of thetransaction.
The rationale of this distinction is made manifest when thereason underlying section 92 of the Evidence Ordinance isappreciated. “ When a jural act is embodied in a single memorial,all other utterances of the parties on that topic are legally
SHAKV AJCAJCJDA, J.~ -Pakir SaiOu o. Kairul Rtnika
immaterial for the purpose of determining what are the termsof their act. ”—Wigmore on Evidence, Vol. IX, at page 76 (3rdEd.). When the parties have deliberately put their agreementin writing, it is conclusively presumed between themselves andtheir privies that they intended the writing to form a full andfinal settlement of their intentions, and extrinsic evidence is,in general, inadmissible to contradict, vary, add to or subtractfrom the terms of the document, except in the cases contemplatedby provisos 1-6 of section 92. The theory of the rule is that theparties have determined that a particular instrument shall bemade the sole embodiment of their legal rights. Their rightsmust be found in that writing and nowhere else, no matter whomay desire to avail himself of it. But, so far as the rights ofthird parties are concerned, the document has not supersededtheir rights. In that sense only it is commonly said that the parolevidence rule is binding upon only those persons who are partiesto the document or their privies. “ The rule will still apply toexclude extrinsic utterances even against other parties providedit is sought to use those utterances for the very purpose for whichthe writing has superseded them as the legal act ”,—Wigmoreon Evidence, Vol. IX (3rd Ed.) at page 150. There is sense inthis limitation of the third party who is not restrained by theprovisions of sections 92 and 99 of the Evidence Ordinance. Unlessa gloss of this nature is implied, the salutory provisions ofsection 92 can be easily circumvented by a party to a dpcument.He can achieve indirectly through a third party what he cannotdo directly. In collusion with a third party, he may checkmatesection 92. In the instant case, the evidence shows that thedefendant and Salam, the vendor on PI, are acting in collusionto defeat PI.
Counsel for the appellant referred to the case of Kanapathi-pillai v. Kasinather (39 N.L.R. 544J. An examination of the factsof that case shows the operation of the principle enunciated here-in. There the plaintiff was a minor. He, by his next friend,brought the suit under section 247 of the Civil Procedure Codeto have a certain land seized by the defendants declared tobelong to him on deed P2 and that it should be released fromseizure. The 1st and 2nd defendants were judgment-creditorsin D.C. Jaffna Case No. 8607 of the 3rd and 4th defendants. Thedeed P2 was executed by the 3rd and 4th defendants in favourof the plaintiff-minor after action No. 8607 was instituted againstthem by the 1st and 2nd defendants for the recovery of a certain
SHARVANANDA, J. -Fakir Saibu v. Kairul Romka
loan, but prior to judgment by default being entered againstthem. The answer of the 1st and 2nd defendants was to the effectthat the deed P2 was null and void, having been executed with-out consideration and with the intention of defrauding them.They attacked the deed P2 on the ground that it had notbeen accepted by the plaintiff or (in view of his minority) byanyone on his behalf and was therefore invalid. The relevantissues that were raised were : —
Is the donation deed P2 in favour of the plaintiff invalid
for want of acceptance ?
Is it open to any person other than the donor to raise
the issue that the deed is invalid for want of accep-tance ?
The Supreme Court held in appeal that the deed P2 wasinvalid for want of acceptance and that ix was open to the 1st and2nd defendants to canvass the validity of the deed as a deed ofdonation and to raise the aforesaid issues. It held that since a giftis invalid in law for want of acceptance, no title passed on thedeed to the plaintiff and that as title still remained with the 3rdand 4th defendants, the judgment debtors, the property wasavailable for execution of the judgment debt against them. Theright to challenge the validity of a donation on the ground ofwant of acceptance is not confined to the donor. It is to be notedthat unlike a sale where title passes on the execution of the deedof sale, a donation has to be accepted, according to law, inorder to convey title. Non-acceptance renders a gift invalid. Thiscase does not depart from the rule enunciated in the other cases.The plaintiff claimed on P2 his right to the property seized bythe judgment-creditors and it was competent to the 1st and 2nddefendants to show that P2, which was admittedly a deed ofdonation, was void and conveyed no title to the plaintiff andthat title continued to be in the 3rd and 4th defendants, thejudgment-debtors. In the instant case, however, the deed PI wasexfacie a sale and title vested on the plaintiff on its execution.Now, the deed PI is the sole record of the transaction betweenSalam and the plaintiff in this case. Section 92 prevents Salamfrom establishing that PI represents a donation and not a sale.The deed PI binds the parties. True, it cannot prejudice oisupersede the rights of 3rd parties. But, the defendant has noright to or interest in the property or in the transaction PI. He isa trespasser and hence he is not prejudiced by the ostensible
SHARVAttANDA, J.—Pakir Saibu v. Kairul Rasika
form of the transaction PI. He cannot be allowed to lead parolevidence for the very purpose for which Salam, the transferoron PI, is barred by section 92. He cannot pull the chestnuts forSalam. If the defendant was claiming against Salam, or if theobject of the execution of the document PI was to defeat hisrights, the provisions of section 92 will not debar him fromproving that what purports to be a sale was, in fact, a donation.But, the defendant is not claiming against Salam. Independentlyof Salam, the transferor on PI, the defendant has nothing to gainfor himself by showing the true nature of PI. No right or interestor claim of the defendant comes into competition or conflict withthe right acquired by the plaintiff on PI. Hence, he too is boundby the document PI and cannot rip open its veil. By PI, titleto the property has vested in the plaintiff and her brother andthe District Judge correctly answered the issue as to title infavour of the plaintiff. In view of this conclusion, the defendant’sappeal fails.
The plaintiff-respondent, by her cross-objections, has com-plained that the District Judge has erred in not granting con-tinuing damages or an order for ejectment. Having held that thedefendant was in wrongful possession of the plaintiff’s land, theDistrict Judge should have ordered ejectment of the defendantand continuing damages till the plaintiff was restored to posses-sion. The reason given by the Judge for withholding that reliefon the ground that the plaintiff has not asked, to be declaredentitled to her share cannot be sustained. The District Judge hasalso failed to award damages for the defendant’s wrongful occu-pation of the highland portion of the land in suit. The plaintiffclaimed Rs. 500 per year as damages for the defendant's wrong-ful possession of such property. This appears to be a reasonableclaim. The plaintiff will however be entitled to claim damages onthe ground of the defendant’s wrongful possession for two yearsonly in view of section 9 of the Prescription Ordinance.
In the result, the judgment and decree of the lower Court isvaried as follows : The plaintiff is entitled to an order of eject-ment of the defendant and all those claiming under him from thepremises in suit and the plaintiff will be quieted in peacefulpossession of her share of the premises in suit. The plaintiff-res-pondent is also entitled to damages from the defendant in a sumof Rs. 5,320 and continuing damages at Rs. 2,660 per annum from
Nilabdeen v., O. TP. Silva, I. P., Fraud Bureau and Farook
the date of action until the plaintiff is restored to peaceful posses-sion of the premises described in the 2nd paragraph of the plaint.The cross-objection of the plaintiff-respondent is allowed and theappeal of the defendant-appellant is dismissed with costs.
Pathirana, J. — I agree.
Ratwatte, J. — I agree.
A. L. PAKIR SAIBU, Appellant, and P. S. KAIRUL RASIKA, Repsondent