058-NLR-NLR-V-05-ANDRIS-SILVA-v.-RANMENIKA.pdf
( 18R )
1889ANDRIS SIEVA v. RANMENIKA.
January 29
adD. C., Galle, 53,611.
February 6
(" Dowan Ararhchi's Case. ”)
Action for recovery of land—Parol agreement to establish interest in land—
Possession of plaintiff—Title deeds in favour of defendant’s vendor.
Where A brought an action for the . recovery of land alleged to-have been purchased by C for the plaintiff, and to have been possessedby the plaintiff from the date of such purchase till the ouster by thedefendant, who claimed under B,—
Held that, in the absence of an allegation of fraud or mistake on thepart of B, it was not possible to set up a parol agreement between himand the plaintiff for the purpose of establishing an interest in land.
I
N this case plaintiff claimed a portion of certain land as havingbeen purchased for him by one Daniel Wijevaratne, common-
ly called Dowan Arachchi, at a Fiscal’s sale on the 20th December,1873. He alleged that he had been in possession of the premisesever since that sale until February, 1887, when the property wassold under a writ against the first defendant, widow of DowanArachchi, and purchased by second defendant, who went intopossession under his purchase.
( 189 )
The defendants denied that Dowan Arachchi purchased onbehalf of the plaintiff, and pleaded that he purchased it for himself,and that he and his widow (first defendant) after him were inexclusive possession up to the sale in February, 1687, when second-defendant purchased under a writ against first defendant.
The District Judge, Mr. J. W. Patterson, dismissed the plaintiff'saction, holding that the evidence led by the plaintiff to show thathe had found the money for the purchase of the property andentrusted to Dowan Arachchi was not trustworthy, and that plain-tiff’s alleged possession of the property was accounted for by theadmission of his own witnesses that at the time of such posses-sion plaintiff was managing the estate of Dowan Arachchi for hiswidow, the first defendant, but later on the first defendant herselfoccupied it for about nine years until the sale in execution againsther. He further found that, even if it be assumed that plaintifffound the money for Dowan Arachchi, plaintiff was insolvent atthe time, and that his object in purchasing in the name of DowanArachchi was to defraud his creditors, and that ’* though at the“ instance of plaintiff’s creditors it might be declared that the" purchase by Dowan Arachchi in 1873 was as trustee for. plaintiff,“ the Court will not lend itself to the fraudulent acts of the plaintiff“ by making such a declaration at plaintiff's instance.” He furtherheld, that “ even if plaintiff’s conduct was not in fraud of creditors.
“ his laches in allowing the title deeds to be in Dowan Arachchi's‘‘ hands, and to remain in Dowan" Araohchi’s hands, and theproperty to be in the ostensible possession of first defendant,
“ thereby enabling her to mortgage the property to an innocent” mortgagee, would disentitle him to relief. ”’
Plaintiff appealed.
The case came on for argument on the 29th January, 1889, beforeBurnside, C.J., and Clarence and Dias, J.J.
Cur, adv. vult.
6th February, 1889. Burnside, C.J.—
We may dispose of this appeal very briefly. On the first point, asa matter of law, it is not open to the plaintiff to claim title to theland in question under the Fiscal’s conveyance to Dowan Arachchi.There is no allegation whatever in the plaintiff’s libel, nor does itappear in proof, that Dowan Arachchi obtained the conveyance inhis own name, either by fraud or mistake; and by our law, differingin this respect from the English Statute, it is not, possible to setup a mere parol agreement to establish an interest on title to land,so that even supposing the plaintiff’s allegation of facts to be true,he cannot have the remedy he seeks. The District Judge, whilst
1889.
January 29and
February 6.
1880.
January 29and
February 6.
Burnside,
C.J.
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inclining to the belief that Dowan Araohohi purchased the landfor the plaintiff under some contract with him, disbelieves theplaintiff’s story of bis having supplied the funds to pay for it. Ifhe did not, and I am not disposed to disagree with the DistrictJudge on the point, then he could have no locus standi what-ever as against the heirs of Dowau Arachchi.
The next point is the adverse possession which the plaintiff hasset up; I have gone through the evidence verv carefully, and itestablishes that, except for a very short period in 1877, thepossession was undoubtedly: in Dowan Arachchi and his widow,and those claiming under them. The plaintiff has thereforeacquired no title by adverse possession. The position in whichthe plaintiff stood to the widow of Dowan Arachchi may explainher alleged act of excluding the land from the administration if itwere her act at all. and not that of the plaintiff himself, but itcannot affect the legal title to the land, which, being in DowanArachchi, became part of his estate on his death.
The District Judge’s ruling that the transaction was intendedto defraud the plaintiff’s creditors does not affect the decision ofthis case.
The judgment, on the grounds I have stated, should be affirmedwith costs.
Clarence, J.. and Dias. J., concurred.