079-NLR-NLR-V-23-KIRTHISINGHE-v.-PERERA-et-al.pdf
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Present: De Sampayo J.1922.
KffcTh isiiJflHte Vm PEREBA el al,307—(7. R. Negorribo, 29,308.
Prescription—Concealed fraud—When cause of action arises.
In 1915 plaintiff executed deed in favour of second defendantfor a certain land. In 1921 he brought this action for the cancella-tion of the deed, on the ground that the deed was executed inconsequence of a fraudulent misrepresentation. Plaintiff becameaware of the misrepresentation in 1920.
Held, that the action was not barred by prescription.
In the case of concealed fraud' of this description an action isavailable from the time of the discovery of the fraud, or from thetime the party defrauded might by due diligence have come toknow of it.
Zoysa, for defendants, appellants.
Croos-Dabrera, for plaintiff, respondent.
January 17,1922. De Sampayo 1—
This is an action for the cancellation of the deed No. 2,23f datedOctober 29, 1915, executed by the plaintiff in favour of the seconddefendant for a certain land, on the ground that the deed was executedin consequence of a fraudulent misrepresentation by the first defend-ant.- The only question for consideration in appeal is whether theaction is barred by limitation of time. The action was brought inFebruary, 1921, so that if the cause of action accrued at the date ofthe execution of the deed, the action would clearly be prescribed, butif it accrued when the plaintiff discovered the fraud, the action is
rjiHB facts appear from the judgment
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1922.
Da SampayoJ.
Kirthi-
sjnghev.
Perera
within time. It appears that the land belonged to certain membersof the Rodrigo,, family, and was mortgaged by them to theplaintiff. The mortgage bond was pat in suit, and tinder a decreeobtained thereon the land was sdld, and was purchased by theplaintiff’s brother, Dr. Kirthisinghe, on behalf of the plaintiff in1903. Thh Fiscal’s transfer was in Dr. Kirthisinghe’s name. Itwould seem that the mortgagors were, in a sense, dependents of theKirthisinghes, or, at all events, were persons whom they wishedto help as far as possible, and as the money due to the plaintiffwas fully paid by the sale of another mortgaged land, the plaintiffwanted them to have this land, though it was sold in executionagainst them. In pursuance of this intention, neither the plaintiffnor his brother, Dr. Kirthisinghe, took possession of the land, butallowed the mortgagors to possess it as their own property. In themeantime Dr. Kirthisinghe. died leaving a last will, under whichhis‘daughter Henrietta Kirthisinghe was sole heir and executrix.In 1915 the first defendant, who is also a member of the family ofthe mortgagors, approached the plaintiff and falsely representedto him that the mortgagors had conveyed to him their interest inthe land, and begged him to obtain a deed from the executrix ofDr. Kirthisinghe and to transfer the land to him, so that histitle might be perfected. The plaintiff was particular about themortgagors or their family having the land, and inquired if they hadsold it to any outsider. The first defendant assured him that theyhad not, and the plaintiff being willing to help the first defendantin those circumstances obtained a deed from the executrix of Dr.Kirthisinghe, and executed the deed No. 2,231 in question withoutany consideration in favour of the first defendant’s relative andnominee, the second defendant. The truth was that the mortgagors,to the knowledge of the first defendant, had sold the land to anoutsider, one Don Gordiano, under whom D. P. Fernando now claimsthe land. It is apparent, and the Commissioner has, in fact, held,that the plaintiff was induced to execute the deed No. 2,231'by thefalse representation of the first defendant, and that the firstdefendant’s, object was to defeat the mortgagors’ transfer to DonGordiano,^and to chum title to the land himself. The plaintiff wasnot aware of the deceit until D. P. Fernando disclosed the truefacts about tf year before action. The occasion for this disclosurewas bis attempt to take possession from the mortgagors, whoresisted him.
This then is an action in the nature of actio doli, of which UsufniLebbe v. Gabriel1 is an example. It is a well-known principle ofEnglish equity that in the case of concealed fraud of this description,an action is available from the time of the discovery of the fraud,or from the time the party defrauded might by due diligence havecome to know of it. In tins ease there is no want of diligence on the'{1914)17 N.L.B. 181.
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plaintiff’s part. As the parties whom he wanted to help were allthe time in possession, he had no occasion to make any inquiry asto any disposal of the property by them. The result of the firstdefendant’s conduct, to which the second defendant was necessarilya parly, was that the plaintiff was prejudiced in any claim hemight himself make to the land or allow the claimant under themortgagors to make. There are not many cases showing the appli-cability of the doctrine of English equity to Ceylon on the questionof prescription. But in DodtceM v. John, both the Supreme Court(18 N. jL. £. 133) and the Privy Council (20 N. L* B. 206) recognizedthe principle as applicable to Ceylon under the same conditions asin England. The plea of prescription therefore fails.
The appeal is dismissed, with costs.
1922.
Da SampayoJ.
Kirihi-singhe v.Perera