134-NLR-NLR-V-45-MOLAGODA-Appellant-and-MOLAGODA-Respondent.pdf
WITEYE W ABDENE .J.—Molagoda and Molagoda.
481
1944Present: Howard C. J. and Wijeyewardene J.MOLAGODA, Appellant, and MOLAGODA, Respondent.
4—D. C. Kandy, 1,129.
Sale-—Action to recover purchase price—Recital in deed that money teas received—Defertdant's plea that sale was, in fact, a gift.
Where the plaintiff sued the defendant to recover the considerationdue on a deed of transfer of property, which contained an express recital“ that .the transferor had received the purchase price in full ”,—
Held, that it was open to the defendant to prove by oral evidence thatthe deed of transfer was, in fact, a deed of gift.
P
LAINTIFF, as administrator of the estate of one Kambuwatawanasued the defendant to recover a sum of Rs. 1,600. By deed P 1 of
August 9, 1940, Kambuwatawana conveyed certain lands to defendantfor Rs. 2,000. Plaintiff instituted this action to recover the considerationdue on the deed but claimed only a sum of Rs. 1.600 giving credit to thedefendant for a sum of Rs. 400 due to him as an heir of the estate. Thedefendant pleaded that deed P 1 was in reality a deed of gift. Thelearned District Judge held that the defendant was debarred from relyingon oral evidence to prove that the deed of transfer was in fact a deed ofgift and gave judgment for the plaintiff.
N. E. 1 Veerasooria, K.C. (with him S. R. Wijayatilake), for thedefendant, appellant.—This case comes within the principle ’ discussed inBelgaswatte v. XJkkubanda et al.1. The deed P 1 recites that the vendorreceived consideration. The plaintiff, however, as administrator of thedeceased vendor, now takes up the position that no consideration passed.It is open, therefore, to the defendant to establish by parol evidence thatP 1 was in reality a deed of gift executed in his favour for “ love andaffection ”. See Nadaraja et al. v. Ramalingam 2; Kiri Banda v. Marikar 3.
E. S. Pereira (with him S. P. Wijetvickreme), for the plaintiff,respondent.—Document P 1 is obviously a deed of sale of immovableproperty On a proper reading of section 92 of the Evidence Ordinanceand its provisos (1) and (2) oral evidence is not admissible to contradictP 1 and change its character into one of gift. The plaintiff is not seekingin this action to invalidate the document. Velan Alvan v. Ponny et al.*■is in point. See also South v. Koelman3 and Mohamadu v. Pathumahel aZ.e
Cur. adv. vult
September 28, 1944. Wijeyewardene J.—
' This is an action by the plaintiff-respondent as administrator of theintestate estate of one Kambuwatawana to recover a sum of Rs. 1,600from the defendant-appellant.
(1942) 43N. L. R. 281.*(1939)41N.L.R. 106.
(1918) 21N. L. R. 38.6(1930)11C.L.Rea.64.
(1917) 20N. L. R. 123.6(1930)11C.L.Rec.48.
■J. N. A 93349(11/49^.
1
482
WUEYEWAKDEiJE J.—Molagoda and Molagoda.
By deed P 1 of August 9,1940, Kabuwatawana conveyed certain
lands to the defendant for Bs. 2,000. He died shortly afterwards leavingas his heirs five children including the plaintiff and the defendant.
The plaintiff instituted this action alleging that the defendant failedto pay the sum of Bs. 2,000 due as consideration on transfer P 1. Theplaintiff claimed only a sum of Bs. 1,600, as he was prepared to givecredit to the defendant for Bs. 400 as the one-fifth share due to thedefendant as an heir of the estate of Kambuwatawana.
The defendant filed answer pleading that no sum was due to the plaintiff,as the deed P 1 was, in reality, a deed of gift executed by Kambuwatawanafor “ love and affection ”.
The District Judge held on the evidence that there was no moneyconsideration for the deed P 1 but gave judgment for the plaintiff on theground that the defendant was debarred by section 92 of the EvidenceOrdinance from relying on oral evidence to prove that the deed of transferP 1 was, in fact, a deed of gift.
The deed P 1 is in form a deed of sale by which the property ,ras soldto the defendant for Bs. 2,000. In fact, the deed contains a warrantyclause by which Kabuwatawana undertook to compensate thedefendant, if he failed to settle any dispute in respect of the propertysold under the deed. The deed, however, contains an express recitalthat Kambuwatawana has received “ the purchase price of Bs. 2,000lawful money of Ceylon in full ”. The plaintiff, therefore, seeks in thisaction to deny the correctness of that recital Could he then preventthe defendant from showing the real character of the consideration forthe deed PI?
In Kiri Banda v. Marikar 1 the plaintiff sold some lands to the defendantfor Bs. 4,000 the receipt of which the plaintiff acknowledged in the deed.The plaintiff sued to recover Bs. 2,500 alleging that he received onlyBs. 1,500 out of the consideration. The defendant pleaded that theconsideration for the conveyance was a sum to be determined by thenumber of acres sold at the rate of Bs. 150 per acre and that a surveyof the lands was made for that purpose. The defendant stated furtherthat according to the survey only a sum of Bs. 1,269.50 was the entireconsideration due to the plaintiff and that he has, therefore, overpaidBs. 230.50 which he claimed in reconvention. This Court held that thedefendant was entitled to prove these facts and cited in support thefollowing principle laid down by the Privy Council in Shah Mukhun La.ll v.Baboo Sree Kishen Singh 2.
“ The rules of evidence, and the law of estoppel, forbid any additionto, or variation from, deeds or written contracts. The law, however,furnishes exceptions to its own salutary protection; one of which is,when one party, for the advancement of justice is permitted to removethe blind which hides the real transaction; as, for instance, in cases offraud, illegality, and redemption, in such cases the maxim applies,that' a man cannot both affirm and disaffirm the same transaction,show its true nature for his own relief, and insist on its apparent
(1917) 20 N. L. B. 123.
(1868) 12 Moore's Indian Appeal Cases 157 at 185.
483
WIJEYEWAUDENB J.—Molagoda and Molagoda.
character to prejudice his adversary. This principle, so just andreasonable in itself, and often expressed in the terms, that you cannotboth approbate and reprobate the same transaction, has been appliedby Their Lordships in this Committee to the consideration of Indianappeals, as one applicable also in the Courts of that country, which areto administer justice according to equity and good conscience. Themaxim is founded, not so much on any positive law, as on the broadand universally applicable principles of justice ”.
%The case of Kiri Banda v. Marikar {supra) was followed in Nadaraja v.Ramalingam *. In that case the plaintiff had executed a deed of salein favour of the defendant. The deed stated that the consideration wasRs. 4,(J00 and that it had been received by the plaintiff. The plaintiffinstituted the action for the recovery of Rs. 1,5(T0 alleging that onlyRs. 2,500 of the consideration was paid to him. It was held that thepurchaser could prove by oral evidence that the consideration for thetransfer was Rs. 2,500 and not Rs. 4,000. After stating that the wholebasis of the plaintiff's claim to relief under section 92 of the EvidenceOrdinance is an equitable one, Bertram C.J., said: —
“ The principle of English equity was that he who sought equitymust do it. In this case the plaintiff comes into Court repudiatinga statement with regard to the payment of the consideration, and if heis allowed to put that forward, he ought also to suffer the personwhom he attacks to show the real nature of the transaction.
The District Judge thought that these decisions did not apply to thepresent case and said that “ when they stated that extrinsic evidencecould be led to prove that the consideration was different, it applied onlyto the quantum of consideration and not to the nature of the considera-tion ”, In other words, the District Judge thought that the equitableprinciple referred to in those cases would permit the defendant to showthat the consideration was not Rs. 2,000 as mentioned in the deed andonly Rs. 10 but not to show that the consideration had no pecuniary valueand was merely the “ love and affection ” of the transferor to thetransferee which would constitute a valid causa under the Roman-Dutchlaw. I am unable to appreciate the distinction sought to be drawnby the learned District Judge, and I would not restrict the applicationof an equitable principle in such an artificial manner in the absence of anystrong reason for it. The decision of the Privy Council in Hanif-tin-Nissa& another v. Faiz-un-Nissa & another2 is clearly an authority againstthe view taken by the learned District Judge. The plaintiff in that caseexecuted a deed transferring some property to the defendants, herdaughter and grandchildren, for Rs. 60,000. It was, on the face of it,an ordinary deed of sale. It stated (i) that the consideration had beenreceived by the vendor, (ii) that the vendees had been put in possessionof the property, and (iii) that, if the vendees were deprived of possession 'of any part of the property sold, they would be entitled to receive from thevendor a proportionate part of the consideration. She instituted theaction alleging that no consideration had ever passed between the parties
1 (1918) 21 N. L. R. 38.3 (1911) Indian Law Reports 33 Allahabad 341.
484
WIJEYEWAKDENE J.—Molagoda and Molagoda.
and praying, inter alia, for the recovery of Ss. 60,000. The defendantspleaded that the alleged sale was not a sale at all and was only a gift.The High Court of Allahabad held that oral evidence was not admissibleto prove that the deed which purported to be a deed of sale was a deed ofgift and entered judgment in favour of the plaintiff (vide (1905) IndianLaw Reports 27 Allahabad 612). The Privy Council set aside thejudgment of the High Court and remitted the case to be dealt with onthe evidence.
The Counsel for the respondent relied strongly on Velan Alvan v. Ponny1,bat, I am unable to see how that decision is relevant to the question to bedecided in this case. In that case the first defendant’s husband hadconveyed to the first defendant a land “ in consideration of the sum ofEs. 1,000 already received As the deed purported to be for valuableconsideration, half of the property reverted to her husband under section 20of Ordinance No. 1 of 1911 and on his death that half share devolved on theplaintiff, his brother, and some others. The plaintiff claiming thus to bea co-owner of the land instituted that action to assert the right of pre-emption under (the Thesawalamai in respect of a transfer by the firstdefendant to the second and third defendants. The defendants resistedthe claim stating that the plaintiff was not a co-owner, as the deed infavour of the first defendant was not for valuable consideration and noshare, therefore, of the land reverted to the first defendant’s husband ordevolved through him on the plaintiff. The Court had to consider inthat case the scope of section 92 of the Evidence Ordinance and heldthat the defendants were precluded by that section from leading oralevidence to change the character of the transaction. It was clearly not aease where the Court had to consider the application of the equitableprinciple referred to in the earlier decisions. The necessity for theapplication of that principle arises only where a Court allows a party tolead oral evidence under section 92 to vary the terms of a written contract.Iu those circumstances, the equitable principle referred to comes intooperation and enables the opposing party to lead oral evidence to meetthe claim put forward by the first party who has been allowed undersection 92 to vary a statement in the written contract.
For the reasons given by me I hold that oral evidence was admissibleto prove that the deed P 1 was a deed of gift.
I set aside the judgment and direct decree to be entered dismissing theplaintiff’s action with costs here and in the Court below.
Howard C.J.—-I agree.
Appeal allowed.
{1939) 41 N. L. R. 106.