KEUNEMAN J.—de Silva and Peries.
1944Present; Keuneman and de Kretser JJ.DE SILVA, Appellant, and PERIES, Respondent.
94—D. C. Colombo, 11,988.
fraudulent seizure of property—Absence of reasonable and probable 'cause—-Burden of proof.
Tn an action to recover damages for fraudulent seizure of property theburden is on the plaintiff to prove that the defendant acted withoutreasonable and probable cause.
A PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him H. W. Thambiah and S. E. J. Fernando),for plaintiff, appellant.
N. E. TVeerasooria, K.C. (with him D. W. Fernando), for defendant,respondent.,
Cur. adv. vult.
August 24, 1944. Keuneman J.—
The facts of this case may shortly be stated as follows;—The defendantin 1930, married the eldest daughter of Emily de Silva. On that occasionEmily de Silva promised the defendant a dowry of Rs. 25,000, but outof this only Rs. 3,000 was given. Also, Emily de Silva conveyed her halfEh are in the life interest over Shadeview to the defendant. A substantial,amount of the dowry remained unpaid.
Later, the plaintiff who was a proctor became a suitor for the seconddaughter of Emily de Silva. He wrote the letter of solicitation D 1 of■September 5, 1933, and Emily de Silva replied by P 2 of the same date,promising as dowry Rs. 5,000 in cash and her life interests in certain.specified properties. This letter (P 2) was sent to the plaintiff by the.hand of the defendant.
The plaintiff's marriage took place on October 5, 1933, and almostimmediately after the marriage trouble began between the defendant andthe plaintiff, and Emily de Silva also became involved in it. It is notnecessary to mention in detail the course of the trouble, but it is clearthat Emily de Silva made complaints to the authorities against thedefendant.
The defendant sued Emily de Silva in'D. C. Colombo, 671, for theunpaid balance of the dowry. Matters came to a head about June 30,1934, when Emily de Silva was apparently forced to leave the defendant’shouse, and went to live with her younger daughter and the plaintiff.
At this point, as the District Judge holds, Emily de Silva came underthe influence of the plaintiff. While living with the plaintiff Emily deSilva on July 14, 1934, gave a lease of her life interest in Shadeview toone Nikulas, who the Judge surmises was a “rowdy ”, and sent him toshare the house with the defendant and his wife.
– KEUNEMAK J.—de Silva and Paries.
Two days later, on July 16, 1984, Emily de Silva executed the deedp 1 in favour of the plaintiff, the effeet of which was to divest her of almosteverything she had, except the small pension she was receiving. It isinteresting to note that not only the life interests in the properties-mentioned in the promise of dowry (P 2) were given to the plaintiff butalso the life interest over practically all the properties in which she hadthat right. It is also clear from the documentary evidence that in spiteof the deed P 1 Emily de Silva remained in possession of the propertyconveyed. The documents 33 4 to D 15 show this.
Apparently about this time Emily de Silva was advised by her relationsto make terms with the defendant and, as a result of this, displeasurearose between herself and the plaintiff. On April 23, 1936, she left thfe-plaintiff’s house and began to live by herself Shortly afterwards a sonof Emily de Silva was charged for murder and the defendant came to theaid of the accused man, but the plaintiff did not. Emily de Silva becamethe more estranged from the plaintiff, and came back under the influenceof the defendant. Consequently Emily de Silva cancelled the proxyshe had given to the plaintiff in D. C. 671 and made terms with thedefendant, and judgment was entered against her in favour of thedefendant for Es. 9,500.
In execution of the decree in D. C. 671 the defendant proceeded toseize the interests which Emily de Silva had conveyed to the plaintiff byP 1. The plaintiff made claim to these properties and his elaim wasupheld with costs on October 2, 1936. Thereafter the defendant broughtan action under section 247 of the Civil Procedure Code, D. C. Colombo,652. This action was dismissed with costs, and the appeal taken by thedefendant was also dismissed with costs on June 21. 1939. On -June 5,1940, the plaintiff brought the present action claiming damages inIts. 5,000 in respect of the seizure and the subsequent proceedings on thefooting that they were “ fraudulent and in collusion with Emily de SilvaThe action was dismissed and the plaintiff now appeals to this Court.
It cannot be denied that there was malice, in the sense of ill-will towardsthe plaintiff, on the part of the defendant. There had been a long-standingquanpl between them. The defendant, however, • maintained that theplaintiff had failed to prove the absence of reasonable and probable causefor the defendant’s action. On this point the District Judge held thak" under normal circumstances there would be force in the argumentbut that the circumstances were “ far from normal ”. The District Judge-then dealt with the argument that the defendant had placed matters-before his legal advisers before he took the action I have mentioned. TheDistrict Judge commented upon the fact that the lawyers were not called,and rightly held that he was not in a position to decide what facts wereplaced before the lawvers. He held that on a review of all the facts thedefendant himself must have known that P 1 was a good deed whichcould not be attacked.
This finding of the District Judge has been assailed by the defendantin this appeal, and as it is a fundamental matter I shall deal with it atonce. The defendant lays great stress on the following facts: —
(1) Emily de Silva had by the deed P 1 for all practical purposes divestedherself of every interest which she possessed and had rendered herself
KEr’NEMAX J.—da Silva and Perics.
insolvent and unable to meet the claim which the defendant' had broughtagainst her. This has been held by the District Judge.
By the deed P 1 Emily de Silva had granted to the plaintiff notonly the life interests promised to him in P 2 but the life interests overpractically all her remaining properties.
There seems to be little doubt that the claim for balance dowry bythe defendant in action No. D. C. 671 was a genuine claim.
At the time of the deed P 1, Emily de Silva was under the influence■of the plaintiff. This too the District Judge has held.
Even after the conveyance (P 1) to the plaintiff, Emily de Silvahad remained in possession of the assets conveyed, and the plaintiff him-self had acted on the footing that she continued to be the owner. Thiswas shown by the documents D 4 to D 15, and the District Judge has-held that this was the case.
The evidence given on oath in this case by the defendant shows thatabout April, 1936, Emily de Silva came to his house at Colombo cryingand bringing these very documents (D 4 to D 15) with her. On thatoccasion she told him that the plaintiff, after getting all she had, haddriven her away, and that up to that date she had been enjoying theincome- She added that the deed was a bogus deed—in the sense of atrust deed—and that she was prepared to give evidence to that effect.Emily de Silva also gave evidence on the same lines in this case. Strangelyenough, the District Judge has not held whether in fact Emily de Silvadid or did not make this statement to the defendant. No doubt it hasnew been proved in the course of the various proceedings including the-present case that Emily de Silva is not a witness whose word can berelied on. But the question is not whether Emily de Silva’s statementwas true but whether she made the statement, and whether the defendantbelieved it and had some reasonable ground for believing it. I see noreason for rejecting the evidence of the defendant on this point.
No doubt these points were before the District Judge, but the onlycomment he makes on it is that “ Had the lawyers known all the factswhich are now known to this Court, and upon which another DistrictJudge and the Supreme Court in the Paulian action held against the-defendant, they would have given different advice to the defendant.Those facts, had they been fully disclosed to the lawyers or had they beenimpartially reviewed by the defendant himself, would have shown himthat P 1 was a good deed which could not be attacked, and that there wasno reasonable or probable cause for taking steps by seizure and a 247action to have it set aside ”.
I think the District Judge here puts the matter m a way that is undulyunfavourable to the defendant. For instance, the defendant could hardlybe expected to know all the matters of defence which were available to theplaintiff and which may by now have been revealed. The Judge-immediately before the passage I have cited had been dealing with thefact that the circumstances were “ far from normal I have carefully
KEUNEMAN J.—de Silva and Peries-
•examined, the-ekrlier part of his judgment, and the only matters relevantto this that he has mentioned are as follows: —
There had been previous ill-feeling between Emily de Silva and thedefendant, and also between the plaintiff and the defendant. Also, the•defendant was aware of the contents of the letter P 2. Eurther, it is nowclear that Emily de Silva is a very weak-willed person and one whoseveracity is open to grave question.
I have considered, these matters but I do net think they lead me tohold that the defendant did not believe the story of Emily de Silva. Forone thing there is nothing to show that at that date the defendant nqusthave regarded Emily de Silva as an untruthful person, and the documentsproduced to him by her may have gone far to impress him with the truth•of her story, although no doubt her story may now he regarded as untrueor at the least unreliable and insufficient to show that P 1 was a fraudulentalienation. Further, as I have shown, the transfer P 1 dealt with interestsfar in excess of the landed interests promised in the letter P 2, and hadthe effect of rendering Emily de Silva insolvent and unable to meet the-claim of the defendant against her. Again, while the ill-will between thedefendant and the plaintiff is a point against the former, it may havemade the defendant more readily disposed to believe the suggestion thatthe plaintiff acted fraudulently in obtaining P 1, and had the intention of•defeating the defendant’s claim against Emily de Silva.
In all the circumstances 1 cannot support the finding of the District-Judge that the plaintiff has proved that the defendant seized the pro-perties and instituted the action D.C. 652 without reasonable and probable•cause. On this ground alone the plaintiff’s claim fails, and the judgmentappealed from dismissing his action must be sustained.
In the circumstances it is unnecessary to consider at length the other-grounds mentioned by the District Judge for dismissing the plaintiff’sraction. I may say that I am in agreement with the finding of the DistrictJudge that the claim for damages arising from the seizure is barred byprescription. Though there is some substance in bis argument that theonly claim contained in the plaint relates to the seizure and that there isno claim for damages in respect of the action under section' 247 (Civil'Procedure Code). I do not think I can uphold this in view of the fact thattwo issues were framed, <1) in relation to the seizure, and (2) in relationto the action under section 247, and clearly if damages were proved ir–respect of (2) they are not prescribed. As regards damages, the District*Judge’s comment is sound- In relation to the action under section 2471 am of opinion that the plaintiff has not proved any damages which can.legally be claimed.
The appeal is dismissed with costs.
-ce Kretseb J.—I agree.
DE SILVA, Appellant, and PERIES, Respondent