070-NLR-NLR-V-43-BELGASWATTE-v.-UKKUBANDA-et-al.pdf
HOWARD C.J.—Belgaswatte v. Ukkubanda.28i
1942Present: Howard C.J. and Heame J.
BELGASWATTE v. UKKUBANDA et al.
123—D. C. Kandy, 2.
Kandyan law—Transfer by father to daughter—Retransfer by daughter—Underinfluence—Proof—Evidence Ordinance, s. 92, proviso (1)—Subsequentdonation by father—Revocability.
The first defendant, father of plaintiff, transferred the property inquestion to plaintiff, from whom he obtained a retransfer by undue-influence. The first defendant thereupon gifted the property to plaintiffas an act of reparation for the undue influence exercised against her.From the deed itself the purpose of the deed 'appeared to be to securefuture assistance.
The first defendant thereafter transferred the property for valuableconsideration to the second and third defendants.
Held, that oral evidence to vary the terms of the deed of gift was-admissible under proviso (1) of section 92 of the Evidence Ordinance.
Held, further, that the gift must in the circumstances be regarded asirrevocable.
y^PPEAL from a judgment of the District Judge of Kandy.
N. Nadarajah, for 2nd and 3rd ‘defendants, appellants.
H. V. Perera, K.C. (with him Cyril E. S. Perera), for plaintiff, respondent.
Cur. udv. vult.
February 6, 1942. Howard C.J.—
This is an appeal by the 2nd and 3rd defendants from a judgment ofthe District Judge of Kandy declaring the plaintiff entitled to the landin question. The 1st defendant, who is the father of the plaintiff, onOctober 2, 1928, by deed P. 1, transferred the said land to the plaintifffor valuable consideration. By deed P 3 dated March 15, 1929, theplaintiff retransferred the same land to the 1st defendant. By deed P 4dated September 6, 1929, the 1st defendant by deed of gift donated thesame land to the plaintiff. By deed P 5 dated July 6, 1937, the 1stdefendant revoked the deed of gift P. 5. By deed P 6 dated September 13,1937, the 1st defendant for valuable consideration transferred the sameland to the 2nd and 3rd defendants, the appellants.
The plaintiff was born on April 3, 1912, and hence did not attainmajority until April 3, 1933. The deeds P -1, P 3 and P 4 were, therefore,executed during her minority. It was alleged by the plaintiff that the1st defendant used undue influence on her to induce her to execute P 3. She,,moreover, repudiated P 3 and stated that in order to confirm her title to theland the 1st defendant executed P 4. Thereafter she states that shepossessed the land until the appellants forcibly took possession.
It is conceded by the plaintiff that the appellants are bona fide pur-chasers for value from the 1st defendant. Their title turns on the questionas to whether the first defendant had the power to revoke P 4 and subse-quently transfer the land to the appellants by P 6. The appellants^contend that P 3, if executed by the plaintiff in favour of the 1st defendant
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HOWARD C.J.—-Belgaswatte v. Ukkubanda.
:as the result of undue influence, was not absolutely void but only voidable.That action for restitutio in integrum to declare P 3 void should have beeninstituted by the plaintiff within three years of her attaining her majority,that is to say, before April 3, 1936 (vide Silva v. Mohamadu1 and Velupillaiv. Elanis"). The proceedings to declare P 3 void were not instituted untilNovember 5, 1937, and hence her cause of action must fail. The learnedJudge in finding in favoyr of the plaintiff accepted the argument of herCounsel that there was no need to get P 3 set aside as the 1st defendantby his own act in executing P 4 remedied the evil and made the deed P 3•of no effect. In his Judgment the District Judge states that he agrees,that after P 4 was executed, there was really no cause of action, excepttechnically, perhaps, as the relief to be sought had been given by P 4.The plaintiff had possession and there was in effect restitution and untilthe deed of revocation, P 5, in July, 1937, there was no cause of action.
.1 am of opinion that the learned District Judge on this point came to a.correct conclusion. It is true that P 4 was a deed of gift made underKandyan law and hence had not the same effect in law as the conveyanceP 1 made by the 1st defendant in favour of the plaintiff for valuableconsideration. On. the other hand P 4 vested the property in the land inthe.plaintiff and until her title was challenged no cause of action wouldarise.
There remains for consideration the further question as to whether the1st defendant was entitled to revoke P 4. Kandyan law entitles a donorto revoke a deed of gift (vide Gunadasa v. Appuhamy3). In that case thephraseology employed– in the vesting clause was very similar to that•employed in P 4. The purpose of the gift would seem from the deeditself to be to secure to the donor that he would be well cared for duringwhat remained of his life. Such deeds are always revocable under theKandyan law unless they are expressly declared to be irrevocable orwhere the power of revocation is expressly renounced. P 4 is not declaredto be irrevocable and there is no expression of the renunciation of thepower to revoke. Mr. Perera has, however, contended that the evidenceof the plaintiff, which is uncontradicted, indicates that P 4 was made notout of love and consideration for the plaintiff, but as reparation for thefact that the 1st defendant had by the exercise of undue influenceinduced her to transfer the property to him by P 3. The 1st defendant’sintention was, therefore, to place the plaintiff in the position she occupiedwith regard to the property prior to the execution of P 3. P 4 must inthese circumstances be regarded as irrevocable. Mr. Perera maintainsthat this evidence of the plaintiff, varying as it does the terms of P 4, isadmissible under proviso (1) of section 92 of the Evidence Ordinance.He argues that it establishes that the consideration is something differentto what is stated in P 4 and the proof of such consideration entitles theplaintiff to a decree or order relating to P 4. In this connection we werereferred to Kiri Banda v. Saly Marikar*. In that case the plaintiffsought to show that part of the sum of Rs. 4,000, the consideration forthe transfer of certain land, had not been paid although in the deed hehad .acknowledged that it had been paid. It was held that such evidence
119 N. L. R. 426.3 36 N. L. B. 122.
3 r C. L. R. 162.* 4 C.W. R. 206.
HOWARD C.J.—Belgasrvatte v. Ukkubanda.
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was admissible. The following extract from the judgment of the PrivyCouncil in Shah Mukhun hall and othersy. Baboo Sree Kishen Singh andothers (XII Moore Ind. App. 157) was cited with approval: —
“ When one party …. is permitted to remove the blindwhich hides the real transaction the maxim applies that a man cannotboth affirm and disaffirm the same transaction, show its true naturefor his own relief and insist upon its apparent character to prejudcehis adversary.
The maxim is founded not so much on any positive law as on thebroad and universally applicable principles of justice,”
Mr. Nadarajah has invited our attention to the cases of Velan Alvan v.Ponny ’ and Lunacha Umma v. Hameed In the latter case a Moorishlady sued her husband to recover Rs. 7,000, being proceeds of the saleof a property belonging to her, and the defendant pleaded that the sumin question was by an agreement between his wife and himself to betaken by him in consideration of a transfer to her and her child of otherproperty belonging to him and this transfer purported to be an absoluteand irrevocable gift in consideration of the love and affection he boretowards them and for divers other good causes and considerations. • Itwas held that the expression “for divers other good causes and consider-ations ” was an ordinary notarial flourish and that it was not open to aparty to show by viva voce evidence that what purports to be on theface of it an out and out deed of gift was in fact a transfer for other andvaluable consideration. No reasons were given for this decision, butperusal of the report of this case indicates that the repection of thisoral evidence turned on the answer made by the defendant to theplaintiff’s claim. The decision must, therefore, be regarded as beingbased on the pleadings, the issues and the evidence tendered by thedefendant at the trial. In these circumstances it cannot be regarded _as an authority in regard to the question that has to be answered in thepresent case. In Velan Abram v. Ponny (supra) Keuneman J. in his judg-ment held that oral evidence is not allowed where the effect of the deedcomes up for consideration incidentally. He states that the action in thatcase made no attempt to “-invalidate ” the document nor would the fact tobe proved entitle any person to any decree or order “ relating thereto ”,There was no claim relating to the document, I think the present casecan be distinguished from Velan Alvan v. Ponny on the ground that adecree or order is sought in relation to P 4. There is a claim relating toP 4, the effect of which does not come up merely incidentally in connectionwith the proof of the plaintiff’s title. I am, therefore, of opinion that theevidence of the plaintiff with regard to what was the real considerationfor P 4 is admissible and establishes the irrevocability of this document.
In these circumstances the plaintiff is entitled to maintain this actionand the appeal is dismissed with costs.
Hearne J.'t—I agree.
Appeal dismissed.
' 41 N.L. R. 106.
– 1 C. IV. R. 30.