ADAICAPPA CHETTY v. CARUPPEN CHETTY

128-NLR-NLR-V-22-ADAICAPPA-CHETTY-v.-CARUPPEN-CHETTY.pdf


( 417 )
[Privy Cotraon.].
Present: Viscount Haldane, Lord^tkinson, andLord PMllimore,
ADAICAPPA CHETTY v. CARUPPEN CHETTY.
43—D. C. Colombo, 48,270.
Ordinance No. 7 of 1840, s. 2—Trust—Borrowing money to purchase'land—Transfer executed in favour of creditor to secure repayment—Subsequent oral agreement to transfer half share of land to creditorfor cost price and in consideration of waiver of interest—Acknow-. ledgment of such transfer—Parol evidence to prove the agreements—Mortgage.
The added-defendant being desirous of buying some pieces ofland applied to amoney-lending firm, of which plaintiff and defend*ants were partners for a loan. For securing the repayment of thesum with interest, the transfers were executed in the name of the firstdefendant. Subsequently, the firm requested the added-defendantto let them have absolutely for their benefit a half share of all theproperty alleged to be held in trust for him for the actual cost ofsuch share, and in consideration offered to forego all claim forinterest. The added-defendant accepted this offer, and acknow-ledged verbally the title of the firm to the half share on the footingof the agreement. In this action the added-defendant intervenedand sought to establish by parol evidence tha.t half share of theland was held in trust for him by the firm.
Held, that parol evidence was inadmissible to establish thealleged trust.
“ The object of the (first) agreement was to create somethingmuch more resembling a mortgage or pledge than a trust. Thearrangement differed absolutely in nature and essence from thatentered into, where one man with his own proper moneys buyslanded property, and gets the conveyance of that property made'toanother. In such a case that other has no claim upon the propertyvested in him. It would be a fraud upon his part to contend thatit belonged to him, or to insist* that he was entitled to a charge orincumbrance upon it, or had a right to retain the' possession of itagainst the will of the man Who purchased it. Butrin the presentcase, until the purchase money with interest Was repaid to thefirm, the first defendant had a right to insist that his firm had aclaim upon this land, and that he (first defendant) had the right, id,Idle interest of the firm, to retain the ownership of it … It
pas in effect a parol agreement providing for the conveyance of4and to establish a security for money and creating an incumbranceaffecting land that firsi defendant desired to prove the existenceof by parol evidence. ’ ’ The parol evidence was inadmissible uwjprsection 2 of Ordinance No. 7 of 1840,
1921.
( 418 )
1821.
AdaicappaChetty v.OaruppenOhetty
“ The second -parol agreement was as invalid as the first. It wasclearly a contract or agreement for effecting the sale, transfer, orassignment of land, and for the establishment of security orincumbrance affecting land …. If that agreement werecarried out according to its terms, a proprietary interest which didnot exist before would be created or established in half the lands,namely, the proprietary interest of the firm, and a security wouldbe created and established which did not exist before, namely, thesecurity of the other half of the land for half the purchase money,but not for any interest on that money. The second agreement,therefore, falls* within the express words of this same section 2 ofOrdinance No. 7 of 1840, and not being in writing would be invalid.”
T
HE facts are fully set out in the judgment of the Privy Council.The following is the judgment of the Supreme Court
February 26, 1920. Ennis J.—
This is an appeal from an order holding that certain evidencein a partition action was inadmissible. The appeal is by theadded defendant who intervened in the action and asserted thatthe lands were-held in trust for him as to an undivided half share.His case was that the lands consisted of four allotments, and thathe had a deed for one allotment in his own name and wished to buythe other three, that he borrowed money from the first defendantand purchased the other three allotments, and as security for therepayment of those moneys and interest he conveyed the lot he hadin bis own name and caused his vendors to convey the remainingthree allotments to the first defendant. In the course of the trialit was asserted that the first defendant was really acting for, and onbehalf of, a firm consisting of the plaintiff and the first and seconddefendants. The legal ownership of the lands in dispute on thedeeds I have mentioned vested in the first defendant, CaruppenChetty. * The appellant admitted that the trustees was to holdone-fourth share in lieu of interest. It appears that there was someagreement between the partners to divide up the partnershipproperty, an agreement which was arrived at consequent upon theproceedings in an action between them. Under that agreementthe three partners agreed to convey 17/33 of the land to the plaintiff,.and 8/33 each to the first and second defendants. The agreementproceeded to make these conveyances. Now, as the legal ownershipwas vested in the first defendant only, the document was effectiveas a conveyance from the first defendant to the plaintiff for 17/33of the land, and effective as a conveyance from himself as a memberof the partnership to himself personally of 8/33 and from himselfto the second defendant of 8/33. The first and second defendantsin their answer allowed 33/66 shares to the added defendant. Theircase was that the plaintiff should contribr te some portion of the landhe had acquired from the first defendant to make up that share.The first defendant by this document admits that he took the land
• i
( 410 )
originally in trust for the added defendant, subject to paymentby Him of the amounts advanced. The only'question on appealis as regards the admissibility of oral evidence to prove that theplaintiff is bound by the trust. The first defendant was the onlytrustee on the original deeds, and the plaintiff would, therefore, beaffected to the extent of one-half of the difference between the 17/33and 16/33, for the legal owner was trustee as to half for the addeddefendant, and with regard to the other half he was trustee for thefirm of“ A.S.T. ” and his agreement and conveyance to the plaintiffwould be in respect of the half which undoubtedly belonged to thefirm, and made the plaintiff the legal owner of that share.. Asagainst him the added defendant could, therefore., claim only 1/66part, but, in the absence of an admission by the plaintiff of anytrust in. favour of the added defendant, the added defendant couldonly establish his claim by means of oral testimony, as he has nodocumentary evidence of the existence of the trust. I am in accordwith the learned Judge for the reasons given by him that such oraltestimony would be inadmissible to establish the added defendant’sclaim as against the plaintiff. The position of the added defendant,as against the first and second defendants, is not prejudiced by theresult of this appeal, as the first and second defendants have admittedthe existence of the trust.
I would dismiss the appeal, with costs.
Loos J.—I agree.
The added defendant appealed to the Privy Council.
A. St V. Jayawardene, K.O. (with him Mr, E. B, Bailees), for theappellant.—There are two agreements relied on by the appellant.As regards the second, by which he alleges the parties agreed to holdthe land in half shares, it must be conceded that it cannot beestablished in view of section 2 of Ordinance No. 7 of 1840—TheCeylon Statute of Frauds. The appellant is entitled to fall backon the first or original agreement, and it is on this basis that theDistrict Judge decided the case. By this agreement three out ofthe four lands were purchased by the appellant in the nazb$.of theChetty firm with money borrowed from the firm. We agft entitledto prove that the money was borrowed by the appellant, that atthe time the lands were purchased the relation of creditor and debtorexisted between the parties, and that it was the appellant who paid forthe lands, although the lands were taken in the name of the Chettyfirm. If we can prove this, it would clearly be a fraud on the partof the Chetty firm to claim the lands as their own. The money wasours, and the Chetty firm, by havingtheir name on the deed, becamea trustee for us. The position is clearly stated in Lewin on Trusts:u But no trust will result unless the person advance the money inthe character of a purchaser; for if A discharge the purchase moneyby way of a loan to B, in whose name the conveyance is taken, no
1621.
Ennis J.
AdaicappaChetty t>.CaruppenCheap
( 420 )
1921.
AdaicappaOhetty v.OaruppenOhetty
trust will result in favour of A, who is merely a creditor of B, and,on the other hand, should B advance the purchase money, but onlyon account of A, then A is the owner in equity, and B who takesthe conveyance stands in the light of a creditor.” Prom the factswhich the appellant's counsel stated he was in a position toprove, it could he established beyond doubt, that the appellantborrowed the money, and it was with the money so borrowed thatthe lands were purchased. The fact that the Chetty firm were thelenders cannot alter the principle. Some members of the firm admitthese facts. We were also prepared to prove a most significantfact, viz., that the lands have always been in our possession. Thisis clearly inconsistent with the claim of the plaintiff, and requiressome explanation. The lower Courts were not justified in refusingto give appellant an opportunity to lead the evidence which hewished to lead to establish these facts. It is only.after the evidencehas been led, that the Court would be in a position to decide whetherthere was a trust or not. In cases of this kind Ordinance No. 7 of1840 has never been held to prevent a party from establishing thetruth, and showing that a person in whose name a deed has beendrawn up is only a trustee for the real owner. Section 92 of theEvidence Ordinance, No. 14 of 1895, has no application, as theappellant was not a party to the deed of sale. That section onlyapplies to parties to documents. Counsel referred to Rochefoucauldv. Boustead,1 and contended that in that case, too, the purchasemoney was provided by the trustee in whose name the lands werepurchased) but it was held that it had been proved that he hadpurchased on behalf of the plaintiff who claimed to be the real owner.
(Viscount Haldane.—But in that case it was clearly proved thatthe person who purchased the property was acting as the agent ofthe other party.]
That is so, but our complaint here is that we are prevented fromleading any evidence at all. The strong circumstance that wc havebeen in possession and taken the produce all these years cannot beexplained on any other ground except that we were considered thereal owner of the lands. Further, we borrowed only a sum ofRs. 45,000, but the lands have been valued in the plaint atRs. 120,000. It is submitted that it would be a fraud on the partof the plaintiff to deny the agreement under which the appellantcame on the land, and thus deprive him of the fruits of his labourand expenses. Counsel also referred to sections 83 and 84 of theCeylon Trust Ordinance, No. 9 of 1917.
The fourth land in dispute was conveyed by the appellant to theChetty firm, but we are prepared to prove that the conveyance waswithout consideration, and that the plaintiff’s firm were to hold it intrust for us along with the other lands. *
* {1897) 1 Oh- (O, A.),m.
( 421 )
[Lobd Atkinson.—The conveyance of this land by you to theChetty firm is very much against your contention that the landswere to be held in trust. Can you explain why the appellantoonveyed his land ?]
Evidently it was in consequence of some arrangement betweenthe parties. It adjoined the other lands. But, in the absence ofevidence, it is not possible to say definitely why this conveyancewas made. Perhaps if the appellant is given an opportunity, he .might give very good reasons for his act. This emphasizes thenecessity for evidence to be led. Section 83 of the Trust Ordinance,'No. 9 of 1917, is clearly applicable here. In conclusion, he contendedthat this was essentially a case in which evidence' should be allowedto be led to prove the existence of a trust. Otherwise the plaintiffwould be using the Statute of Frauds to perpetrate a fraud on theappellant.
The respondents were not represented.
Our. adv. vult.
The following is the judgment of the Privy Council :—
June 21, 1921. Delivered by Lobd Atkinson :—
.This is an appeal from the decree of the Supreme Court of Ceylon,dated February 26, 1920, which affirmed a decree of the Courtof the District Judge, Colombo, dated February 18, 1918, in a suitinstituted in his Court on July 28, 1917.
The suit was brought by Adaicappa, since deceased, one of a firmof money lenders, who carried on business in Colombo, Ceylon,against Caruppen Chetty and Velappa Chetty, the two remainingpartners of the firm, to obtain partition of four plots or parcels ofland, portion of an estate named the Pelpita estate, in which theyclaimed to be entitled to under the provisions of a deed bearing dateNovember 30, 1916, in certain undivided shares.
This deed was executed by the three former partners, namely,Adaicappa Chetty, Caruppen Chetty, styled in the proceedings thefirst defendant, and Velappa Chetty, styled in the proceedings thesecond defendant, and the undivided shares secured to them by thedeed were 17/33 to the plaintiff and 8/33 to each of the two remainingpartners, the first and second defendants. The plaintiff in the suitaverred in his plaint that three of these plots of ground had been -purchased from one K. P. M. Sidambaram Chetty, out of the fundsof their firm, while it was carrying onbusinessfor a sum of Rs. 10,000,and that by a deed dated October 23, 1911, the lands had beenconveyed to the first defendant. It was further averred in thisplaint that the lot No. 4 of these lands had been similarly purchasedby them from one K. A. D. Martinus Perera for a sum of Rs. 360,part of the funds of the firm, and by a deed bearing date August 26,1913, in like maimer as in the other instance, conveyed to the firStdefendant.
1921.
AdajeappaChetty v.CaruppenChetty
It wag further averred in the plaint that the three former partnersand N their predecessors in title had been in possession of these landsfor over ten years, and had thereby acquired a title thereto underparagraph 3 of the Prescription Ordinance, 1871, that the propertywas worth Es. 120,000, that the common possession of the lands andpremises was inconvenient, and thatthe plaintiff desired to have themsold and partitioned under the terms of the Partition Ordinance,1863. Neither the first nor second defendants filed any answerin the first instance to this plaint. But K. A. D. Martians Perera,who may conveniently be styled Perera, was, by order of the DistrictJudge, added as a defendant, and on October 26, 1917, he filed ananswer to the plaintiff’s claim upon which the questions arise, whichcall for a decision on this appeal. After some immaterial traversesof the statement contained in the plaintiff’s plaint, he, in paragraph6 and the succeeding paragraph of it, sets forth at much length thecase upon which he relies to entitle him to the relief he prays for.He states that the plaintiff and defendants were a firm of moneylenders, and had been in the habit of financing him, lending himmoney at interest. As much turns upon the nature and characterof the arrangement made by Perera, not with the first defendant alone,but with the firm, it is better to state it in his own words. Thepassage in his answer runs thus :—
The added defendant being desirous of purchasing the said landfor the purpose of planting rubber applied to the said firm of Ana SeenaThana to lend him the moneys required for the purpose. The said firmagreed to lend the moneys required for purchasing and opening up thesaid lands or so much thereof as might be required by the addeddefendant, on condition that the same should be repaid with interest at10 per centum per annum, and that the deeds for the lands so purchasedshould be taken in the name of the first defendant, in order to ensure thedue repayment of the said sum with interest.
7.' The added defendant accordingly, with a sum of Rs. 10,000borrowed from the said firm, purchased the premises referred to inparagraphs 3, 4, 5, and 6 of the plaint for his own benefit, but took the -transfer thereof in the name of the first defendant for the purposehereinbefore set forth.
When one refers to the deed dated October 23,1911, the executionof which is witnessed by Perera, and by which the alleged arrange'ment is claimed to have been carried out, one finds a statement morein accord probably with the actual facts, to the effect that thepurchase money, Rs. 10,000, “ had been well and truly paid ” by^Caruppen Chetty (the first defendant) to the vendor Sidambaram2Chetty. He then deals in his answer with the acquisition of lot 4:of these lands. By a certain deed dated December 3, 1912, it waggonveyed to. him by seven co-owners, and was by him, by deed datedAugust 26,1913, numberl33, conveyed to the first defendant. Whenone refers to these deeds, it appears that the purchase money, whichwas Rs. 360, was stated to have been paid by the purchaser to the
( 423 )
vendors, the receipt of which thelatteracknowledges. In the secondthere is a statements a like effect that the purchase money had beenpaid by the first defendant to Perera. Yet the latter, in the 9thparagraph of his answer, claims that by these transactions, not byan express parol agreement, the existence of which he never oncementions, the first defendant became a trustee for him, and the firmbecame trustees for him of all the lots, No. 4 as well as the others,to be re-conveyed to him if by him so required, on the moneyadvanced by the firm being repaid with the stipulated interestthereupon due. As regards lot 4, it is certainly a novel applicationof the equitable doctrine of resulting trusts, that where an owner ofproperty, as this deed represents Perera to have been, sells andconveys-it to a purchaser who pays him the purchase price, all whichthis deed recites in the case to have been done or to he done, thepurchaser is converted into a trustee for the vendor whom he has paid.There is notin Perera’s answer a single suggestion that there was anyparol agreement between him and the first defendant or any otherperson that this lot 4 should be held so. Both the District Judgeof Colombo and the Supreme Court of Ceylon held that no trust suchas is relied upon was created by the dealings of the parties in.thiscase. For reasons to be given presently, their Lordships concurwith them in this opinion. They think these learned Judges wereright in the conclusion to which they came. It is then set forth inthis answer that in or about the month of October, 1911, erroneouslystated as 1912, a new arrangement was entered into between theappellant, and apparently from the dates almost contemporaneouswith the first indenture modifying it. It was according to theanswer this: This firm, the appellant avers, requested him to letthem have, absolutely for their own benefit, a half share of all theproperty, alleged to he held in trust for him, for the actual cost ofsuch share, and offered to the appellant, in consideration of histrouble in purchasing and plantingthe property, to forego all claim forinterest on the money advanced by the firm; that he accepted thisoffer, and acknowledged the title of the firm to this half share on thefooting of this agreement. If the appellant’s claim he well foundedas to the existence of the resulting trust mentioned in referenceto all these properties, then this new arrangement amountedto a parol agreement by the cestui que trust to sell to the trusteesfor the considerations mentioned the beneficial interest in one-halfof the trust property. And it is this latter agreement which theappellant claims to have carried out. He does not pray that thealleged resulting trust affecting the whole property may be declaredand carried out; but after stating that he has expended Rs. 54,802' 76in purchasing and planting the entire property, that^ the firm hadadvanced to him Rs. 30,432*03, to enable him to expend this sumthat the firm should be debited with half this expenditure andcredited with half the advance, leaving him in debt to them in the
1921.
Lord
Atkinson
AdaicappaOhetty v.CarwppenOhetty
( 424 )
1921.
Lord
Atkinson
AdaicappaOhetty v.OarwppenOheUy
sum of Rs. 7,530*65, which he states heisready and willing to pay.He prays: “ That the shares in the said properties which theplaintiff (»e., Adaioappa Chetty) and the defendants (i.e., the twoother members of the firm) may be held to be entitled to, and theportions which may be allotted to them, may be declared to be heldby them, subject in respect of one-half thereof to the said trust in his(Perera’s) favour.”
That amounts in effect very much 'to a prayer that the secondparol agreement may be specifically performed. He then praysin the alternative that the said shares and portions may be declaredto be held by them, subject to a tacit hypothec to secure paymentto him of compensation for improvements, and subjeot to his rightto retain the same until such compensation is paid. The twooriginal defendants had not up to this period filed any answer.Then, in obedience to an order of the Court, they ultimately did soon February 25, 1918. In it, after some immaterial traversesof statements in the plaint, they adopt and practically repeat thestatements in Perera’s answer. They claim, however, that atthe time the action was brought Perera was entitled to 33/66of the several lots of land, that they were each entitled to 8/66, andthe plaintiff entitled to 17/66, thus modifying the division madeby the deed of November 30, 1916, by the provisions of the'parolagreement of October, 1911; in fact, dividing by two, the sharesecured to Adaicappa Chetty by that, instrument. The fraudcharged by all the defendants against the plaintiff, Adaicappa,is that he brought this action. It is unnecessary to go into thehistory of this deed of November 30, 1916, at any length. It is. enough to say that it appears from the documents that the Chettypartnership was dissolved; that there was. litigation between thepartners ; that a settlement of the litigation was ^arrived at; andthat, in pursuance of that settlement, this deed was executed, inwhich it is apparent these alleged trust properties were treated asassets of the partnership.
When the case came before the District Judge, the appellant’sadvocate was asked what he proposed to prove in evidence insupport of his case, and he replied, as appears from the Judge’snotes, that he proposed to prove that the first defendant was the'managing partner of the firm; that as such Perera asked him for aloan; that this land was valuable; that he (Perera) wouldget it cheap,plant, and cultivate it; the firm to advance the money for workingJ-t; that Perera purchased; that the first defendant thought itprudent to have a transfer as a hold on Perera ; that it was boughtin the first defendant’s name, and that the lands already got he trans-ferred to the firm; that the firm were legal owners, subject totrust; that first defendant thought it better to secure a shareof the property; that this course was suggested by Perera, viz.,when the property came to full bearing to transfer half to the
( 425 )
added defendant firm and retain half; that this agreement was notedin the partnership books, but not signed. He further stated thathe proposed to prove the alleged trust by oral evidence, the noticeof the trust by the production of the plaint and answers, and byoral evidence to prove that the deed of November 30,1916, was takensubject to'the trust. The respective advocates agree that the datein paragraph 10 of the added defendant’s answer should be 1911, not1912, and that the agreement about halving the land was madeimmediately after October 23, 1911.
Both parties agreed that the question of the admissibility of theevidence should be disposed of first.
In giving judgment the learned District Judge points out thatthere is no mention of any trust in the indenture of November 30,1916, or of the earlier deed dissolving the partnership dated April 5,1915, that the added defendant Perera now sought, by means oforal evidence, to deprive the plaintiff in the suit of half the landsconveyed to him by the former deed. He held that there was noquestion of trust, but merely an oral agreement that this deed ofNovember 30, 1916, should mean, not that defendants transferredto the plaintiff 17/33 of the whole land, but 17/33 of half the land ;that the oral evidence offered of such an agreement was obnoxious,both to the Ordinance relating to frauds and perjuries and to theEvidence Ordinance, No. 14 of 1895, section 92. He further statedthe lands in the present case were not purchased by the defendantswith money advanced by the added defendant, but by moneybelonging to the firm, which was treated as a loan to the addeddefendant. The learned Judges in the Court of Appeal concurred.They held that the added defendant could not establish his claimby oral evidence.
The first question which it is necessary to determine is whatis the real nature, the true aim, and purpose of the transactiondescribed in the 6th paragraph of Perera’s answer. The purchasemoney was paid by the Ghetty firm through the medium ofPerera. It was never lent to him to dispose of it as he pleased.If he got command of the money at all, he only had command ofit in order to devote it to a particular purpose, the purchase ofthese lands. He was to repay it with interest at 10 per cent.,and the conveyance was made to the first defendant: “ The deedof the land so purchased to be taken in the latter’s name.” Notfor the purpose, in the view of either party, of being held in trustfor Perera or for Perera’s sole benefit, but to secure to the firm the-repayment of the money sunk in the purchase with interest. Theobject of the agreement was, in their Lordships’ view, to createsomething much more resembling a mortgage or pledge than a trust.The arrangement differed absolutely in nature and essence from thatentered into, where one man with his own proper moneys buyslanded property and gets-the conveyance of that property made to
14*
1921.
Loud
Atkinson
Adaicappa
Cheityv.
Caruppen
Chttty
( 426 )
1921*
Lord
Atkinson
Adaicappa
OheUy v.CamppenOheUy
another. In such a case that othep has no claim upon the propertyvested in him. It would be a fraud upon his part to contend that itbelonged to him, or to insist that he was entitled to a charge orincumbrance upon it, or had a right to retain the possession of itagainst the will of the man who purchased it. But in the presentcase, until the purchase money with interest was repaid to the firm,the first defendant had a right to insist that his firm had a claimupon this land, and that he (the first defendant) had the right, in theinterest of his firm, to retain the ownership of it. It is true that thedeed which conveyed the land to the first defendant did not containany provision for redemption. It was not a formal mortgage inthat respect, but the agreement the parties entered into was muchmore an agreement to create a security resembling a mortgagethan to create a trust. It was in effect a parol agreement providingfor the conveyance of land to establish a security for money, andcreating an incumbrance affecting land, that Perera desired to provethe existence of by parol evidence. The parol evidence, which mustbe taken to have been tendered, was properly held to have beeninadmissible, for the simple reason that the agreement, if proved byit, must, under Ordinance No. 7 of 1840, sub-section (2), have beenheld not to be of " any force or avail in law.” This section is muchmore drastic than the fourth section of the Statute of Frauds. Thelatter section does not render a parol agreement of or concerningland invalid. It merely provides that the agreement cannot beenforced in a Court of law unless it, or a note or memorandum of itin writing, be signed by the party to be charged therewith, orsome person thereunto lawfully authorized, be given in evidence.Under the latter Statute if the defendant in a suit brought to enforcethe agreement has signed it, ora note of it in this manner, the agree-ment can be enforced though the plaintiff has not signed either.But the party who has signed it or the memorandum cannot sueto enforce it against the party who has not signed either. In bothcases the contract entered into is the same. It is not illegal orinvalid, but it can only be enforced in a Court of law if provedin a certain way.
The fourth section of the Statute of Frauds has consequentlyoften been well described as merely an enactment dealing withevidence. In the present case the second parol agreement is, in theirLordships9 view, as invalid as the first. It was clearly a contract oragreement for effecting the sale, transfer, or assignment of land, andfor the establishment of a security or incumbrance affecting land.The firm were, for the considerations mentioned, to hold half theland conveyed by the deed of November 30, not as a securityfor the repayment to them of money advanced by them, but fortheir own benefit, and the remaining half was to remain as securityfor the entire debt. The first defendant would under this agreementbecome trustee of half the lands for the firm as absolute owner.
( 427 )
If that agreement were carried out according to its terms, a pro-prietary interest which did not exist before would be created orestablished in half the land, namely, the proprietary interest of thefirm, and a security would be created'and established which didnot exist before, namely, the security of the other half of the landfor half the purchase money, but not for any interest on that money.This second agreement therefore falls within the express words ofthis same section 2 of Ordinance No. 7 of 1840, and not being inwriting would be invalid.
Evidence tendered by a party litigant relying upon an agreementas valid and enforceable, which, if admitted, would establish that theagreement was of no force or avail, is inadmissible. It would be atravesty of judicial procedure to admit it. Their Lordships are,therefore, of opinion that this appeal fails, and should be dismissed,and they will humbly advise His Majesty accordingly.
As the respondents have not appeared, there will be no orderas to costs.
Appeal dismissed.
1921.
Loud
Atkinson
AdaicappaCketty v.CaruppenChetty.