NACHIAR v. FERNANDO

020-NLR-NLR-V-05-NACHIAR-v.-FERNANDO.pdf


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1900.
October 31,November 1,and
December 14.
NACHIAR v. FERNANDO.
D.C., Colombo. 10,518-
Duty of judge to frame such issues as will enable him to express his findingson the questions raised—Ordinance No. 7 of 1840—Inadmissibility oforal evidence to establish a resulting trust—Relevancy of evidence as toprice of property having been paid by the defendant and not by the personwho holds the title deed, to show when adverse possession began—Ollierexceptions to the Ordinance of Frauds.
Where, in an action rei vindicatio, plaintiff get up a chain of title,and defendant, admitting the execution of the title deeds pleaded 'byplaintiff, raised inter alia the issues that one of the plaintiff's prede-cessors in title had bought the property for her out of funds suppliedby her. but took the conveyance in his own name, and that she never wasthe tenant of such predecessor or other subsequent paper title holders.—Held, that the only issue framed by the Court below as follows—
“ Hasthe defendant acquired titleto the propertyin dispute byadverse
" anduninterrupted possession formore than tenyears previousto the
“ date of action? ”—was too vague to permit the Court to express its find-ings on the many questions of fact on which the parties were at variance,or its finding on law as to the effect of those facts.
Held also, that defendant was entitled to prove that she had suppliedto plaintiff’spredecessors intitle the fundsnecessaryfor thepurchase
of the housein question, notfor the purposeof settingup title,but only
to show' the date from which she began her adverse possession.
PerBrowne, A.J.—The generalpurport of thedecisions as to what
exceptions can be allowed or not to the strict observance of our Statuteof Frauds may be summarized as follows: —
(1) When an agreement, beingc verbal, cannotbe enforced,moneys
paid thereonfor the ulteriorobjects of theagreementmay berecovered
:as moneys had and received for plaintiff’s use or as cohdictio indebitati.
'(2) If a title deed has been obtained by fraud, re-conveyance’ by thefraudulent holder will be ordered.
If thedeed was madein another's name, and the latterhas pos-
sessed for years and died, and fraud is not proved, plaintiff will not beallowed to say that the property was bought with his money and tovindicate it from the deceased's heirs.^
If, on a verbal argeement to purchase jointly, the conveyance was’made in defendant’s name, and he fraudulently refused to allowplaintiff his share,plaintiffmayvindicate his share,anddefendant
cannot set up the Ordinance.
I
N this case ihe plaintiffs, who are wife and husband, sued thedefendant to have the first plaintiff declared the owner of a
certain house andgroundinHospital street intheFort of
Colombo and to have the defendant ejected.
In the chain of title pleaded by plaintiffs it appeared that Har-manis Fernando, the husband of the defendant, was the owner ofthe property in I860; that he was adjudicated an insolvent in1870; that his assignee sold it to one Allis Fernando in the sameyear; that Allis Fernando’sright, title,- and interestwassold by
the Fiscal under aD. C.writto Mr.J. N. Keith; and that
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Mr. Keith sold the property to Mr. Fakir Tam bv, who gifted it tohis daughter, the first plaintiff.
The defendant admitted the title deeds pleaded by the plaintiffs,but averred that Allis Fernando bought the property in 1870 out offunds supplied by her and for and on her behalf, and that she heldpossession of the property from and before 1870 by a title adverseto and independent of plaintiffs and their predecessors in title.
The paper title of the plaintiff's being admitted, the DistrictJudge ruled the onus to be on the defendant as regards hertitle by prescription.
He framed the following issue:Has the defendant acquired a
title to the premises in question by adverse and uninterruptedpossession for more than ten years previous to the date of action?
He called upon the defendant to begin.
The defendant’s counsel suggested the following issues: —
Was the defendant the tenant of the plaintiff’s donor, andis she in unlawful and forcible possession?
■ (2) Did Allis Fernando, from whom the first plaintiff deducestitle, buy this property in 1870 for himself or in trust for thedefendant?
(3) Were the plaintiff’s in possession or ever in possession?
The District Judge disallowed these issues, and as the defendantwould not begin entered judgment for the plaintiff.
On appeal by defendant the Supreme Court set aside the judg-ment and sent the case back for adoption of the procedure laiddown in section 146 of the Civil Procedure Code as to theascertainment of the proper issues, it being of opinion that* theissue framed by the District Judge was too vague, “ for it was" little more than this—Is the plaintiff or the defendant entitled” to succeed?
On the case going back' the District Judge examined thedefendant, and upon her admissions framed the following issues^a.s being the only issues necessary for a proper determination ofthe‘dispute between the parties: —
Is the paper title to the house in dispute at present in thefirst plaintiff?
If so, has defendant acquired a superior title by prescriptive-possession?
Is the decree in the Court of Requests case a bar to theplaintiff’s present action?
Defendant’s counsel suggested as further issues the identicalissues disallowed at the previous hearing.
The District Judge held that they were practically involved in-the second issue made by him.
1900.
October 31,November 1,and
December 14.
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1900.
October 31,November 1,
and
December 14.
He heard the second plaintiff’s evidence, and, as defendant'scounsel refused to lead any evidence on the question of defend-ant’s possession, entered up judgment for plaintiff.
The defendant appealed.
H. J. C. Pereira, for appellant.—The questions of trust andtenancy raised in thedefendant’spleadingsandsubmitted in
the issues suggested by him in the Court below were improperlyrejected. If Allis Fernando bought the property in trust forthe defendant, plaintiff’s title would fail. The District Judgeshould have allowed the three issues suggested on behalf of thedefendant and heard the case fully on both sides.
Ramanathan, S.-G.,for respondent.—Theissueasto trust
cannot be accepted because (1) the deed being out and out infavour of Allis Fernando, without a trusteeship appearing on theface of it, the Ordinance No. 7 of 1840 would not permit any such .trusteeship from beingestablished;and (2)theoralagrement
as to trusteeship would be a fraud on the Insolvency Laws,it being admitted that defendant’s husband was adjudicatedinsolvent, and any money which his wife, the defendant, hadwould belongto the insolvent andvest in the assigneeofthe
insolveut (D.C.. Butticaloa, 18,598, Ham. 1877, 158; Ibrahim Saibov. 0. B. C., 3 N. L. R. MS). The District Judge’s answer todefendant’s counsel is that, howsoever the defendant acquiredpossession, her titlecanonly beprescriptive possession;
and that she is estopped fromsettinguptitleindepen-
dent of Allis Fernando', because she had acknowledged it inher own deed of release of 1881. In view of the marriageof defendant’s daughter, Allis Fernando gifted one-eighth of theproperty in -question to her, but as she died before the contem-plated marriage, defendant and her other children, who were theheirs of thedeceased, re-conveyedthe one-eighty sharetothe
grantor Allis Fernando and renounced all their right’to-it. Defend-ant is therefore estopped from claiming under Allis Fernando.The meaning of the issue as to prescriptive posseqsiojj is deter-mined by the Ordinance No. 22 of 1871, which necessitate# proofthat defendant was in possession by a title adverse to andindependent of the plaintiff. Hence, the question ’of tenancysuggested by the defendant's counsel as an issue in the case isInvolved inthe District Judge’sissue. As defendantwould
not begin when it was her duty todo so, the District Judgewas
right in entering judgment in favour of the plaintiff.
H. J. 0. Pereira in reply.
Cur. adv. vult.
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14th December, 1900. Bbowne, A.J.-—
The assignee of the insolvent estate of the husband of the t^enZberi,defendant sold and conveyed the house in question in Mospatal andstreet to the insolvent’s brother, Allis Fernando, on the 8th duly, Deee w1870.
On the 21st January, 1875, Allis mortgaged the house to theCeylon Savings Bank for Rs. 4,500, and subject to such mortgage'he donated one-eighth of it on 18th July, 1875, to his niece,defendant’s daughter Kate, as marriage provision. She dyingbefore marriage, defendant and her sons did on 4th March, 1881,
’* remise, release, assure, and convey ” the one-eighth back to Allis-absolutely.
On writ against Allis (possibly in execution of a decree uponthat mortgage) the house was by the Fiscal auctioned on 4thMarch, 1885, and conveyed on 9th July, 1885, to Mr. Keith, whoon 11th June, 1885, sold and conveyed it to P. T. Meera Lebbe-Marikar, who on 19th February, 1887, donated it to first plaintiff,,reserving a life. interest, which also be conveyed on 2nd June,.
1896, to her.
At the hearing of this appeal it was admitted (for no proofthereof save in defendant’s examination had been given inthe lower Court) that the plaintiffs had, after their acquisitionof immediate right o.f ejectment, sued the defendant in the'
Court of Requests for rent for the month of December, 1896, andJanuary, 1897, but their action had been dismissed, the Commis-sioner discrediting the proof offered to show that defendant, hadbeen plaintiffs’ tenant, and ordering them to litigate theirdisputes as to title in the District Court.
On the 23rd September, 1897, plaintiffs accordingly institutedthis action, averring in their plaint in detail the paper title to theland; that Allis Fernando, Keith, and P. T. Meera Lebbe hadseverally “ entered into" possession ” of the house; the conveyanceto first plaintiff; that “ the defendant, who was the first, plaintiff’s’■ donor’s tenant at the date of the gift to first defendant, and who–“ has no right or title to the said house and ground, is presently’■ in the unlawful- and forcible possession of the same, and denies-'
“ and disputes plaintiffs’ title and asserts title in herself ’’ andthe plaintiffs’ own title by prescriptive possession of themselvesand their predecessors. Apparently, as the result of the Court ofRequests action, they abstained from averring that the defendanthad been tenant of themselves; and it will be noted that, afteraverring that defendant was a tenant at some time before June,
1896, they do not aver from what date her possession was unlawfuland forcible.
1900.October 31,November 1,and
December 14,Bbowne, A.J.
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To this plaint defendant answered, admitting the execution ofall the deeds averred in the plaint, but denying that plaintiffs ortheir predecessors in title had ever entered into possession of thepremises, or that she had been the tenant of the plaintiffs’ donor,or was at date of suit in unlawful or forcible possession, or thatplaintiffs had the title by prescriptive possession which theyclaimed. She asserted that since her husband’s second purchaseof the house on 24th December, 1860, she had always lived in it;that Allis’s ostensible purchase was one in trust for her, thedefendant (in her evidence she stated that she supplied thefunds wherewith he purchased it),andthatshe.notwithstanding
divers acts of ownership exercisedbyAllisoverthetitle deeds
(referring no doubt to the mortgageandgiftbyhim above
mentioned), had, jointly with herhusbandtillhisdeath and
thereafter by herself, been in the absolute possession of the housefrom the date of the conveyance to Allis, 8th July, 1870, and stillwas; and she further claimed title by prescriptive possession;and she prayed to be declared owner and quieted in possession.
At the first trial the learned Additional District Judge framedthe issue,—Has the defendant acquired title to the premises inclaim by advers and uninterrupted possession for more than tenyears previous to date of action?
Defendant’s counsel objected thereto and suggested; —
(.1) Was the defendant the tenant of the plaintiffs’ donor, and isshe in unlawful possession as alleged in paragraph 10 of the plaint?
Did Allis Fernando buy this property on the 8th July, 1870.in trust for the defendant, or did he buy it for himself?
Were the plaintiffs ever in possession or entitled to possess?
These issues, it was held, did not arise; and as they were notframed, defendant’s counsel declined to call evidence and decreewas entered in plaintiffs' favour, In appeal the action wasremitted for due • procedure under section 146 of the Civil Proce-dure Code, with the remark, “ The issue framed in this case is fartoo vague, for it is little more than this,—Is the plaintiff ordefendant entitled to succeed?
At the re-hearing the same District J udge examined thedefendant. There is no record whether or not counsel were ableto agree upon issues, but the learned District Judge framed thefollowing issues, “as being the only issues necessary for a properdetermination of the disputes between the parties —
“ Is the paper title to the house in dispute at present in thefirst plaintiff?
Defendant had not in her answer or evidence denied this, which
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the plaint alleged, so I consider this issue did not arise.
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“If so. has defendant acquired a superior title by prescrip-tive possession? ’’
This is but a prdcis of the issue formulated at the first trial,which this Court condemned. The learned District Judge failsto recognize that to answer the question requires previous find-ings of facts and a finding of law as to the legal effect of these facts.
“ Is the decree in the Court of Requests case (as to whichdefendant had been examined) a bar to the plaintiffs’ presentaction?
I do not see how this issue arose. Plaintiffs had' not averred atenancy under themselves, nor had defendant pleaded the Courtof Requests decree in bar thereof. If plaintiffs' donor possessedfrom June, 1885, to June, 1896, and defendant had been his tenant,the title he conveyed to plaintiffs would not be lost or prejudicedby the decree in 1897 of no tenancy thereafter under plaintiffsfor two months from 1st December, 1896.
I therefore do not see that issues tvere properly formulated asto the question of fact or of law to be decided, ’ ’ or that it wasascertained “ upon what material propositions of facts or of lawthe parties are at variance ” (section 146).
Defendant's counsel suggested three issues, which were rejected.The only witness called for the plaintiffs are the second plaintiff,who produced the title deeds and those relating to the. gift toKate and release thereof. Defendant’s counsel declined to callevidence, decree went in plaintiffs’ favour, and the second appealhas come before us in this action which has been pending nowfor over three years, and in my judgment has not yet passed tothe stage preliminary to trial of having issues properly agreed toor settled.
These two abortive trials and appeals are an object-lesson tous, as I remarked at the argument-, and I trust that at the firstrevision of the Civil Procedure Code this precedent will lead tosection 80 being worded so as to also require the appointment ofa date shortly thereafter for the filing or ascertainment. of issues,and to section 146 being inserted as part of or next to it.
Now, judging from the pleadings and defendant’s evidence, thematerial propositions of fact and law upon which the parties wereat variance were—
Whether plaintiffs' predecessors in title and they them-selves had ever entered into possession, – and if so, for what periods?
Whether defendant had ever been, and possessed as, thetenant of plaintiffs’ donor, and if so, for what period?
Whether defendant after any such tenancy had ever beenin forcible and unlawful possession, *and from what date?
1900.
October 31.November 1,and
December 14.Browne,A.J
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1900.
October 31,November 1,and
December 14.Browne. A. J
Whether, if never a tenant of plaintiffs' predecessor;defendant had ever held undisturbed and uninterrupted possessionby adverse and independent title, and for what period or periods-previous to the bringing of this action?
Whether by any such possession for ten years defendantever acquired title to the premises?
Whether defendant supplied thefunds whereby AllisFernando purchased the house conveyed to him on the 8th July,1870?
Was such purchase by .him in trust for the defendant?
Has defendant held possession as in her own right thereafterand had plaintiffs and their predecessors in title knowledgethereof?
Is defendant, by such purchase out of her moneys in trustfor her, and such possession by her presently, entitled to thepremises?
Affirmative answers to the first and second issues made afterhearing the evidence on all the. issues might result in judgmentfor the plaintiff, unless the answer to the third issue showedadverse possession of defendant for ten years between the-tenancy and the action. On the other hand, such a finding onthe third issue, or a negative finding on the first and secondfollowed by affirmative answers on the fourth and fifth issues..might result in judgment of title in defendant as she prays.
And in respect of the third, fourth, and fifth issues the matterof the sixth issue is not irrelevant, for the fact that defendant gavemoney to buy the house in .1870 would be strong evidence as tothe character of her possession thereof subsequent thereto, andwould mark the date from which such possession could properlybe reckoned.
The question remains whether the sixth issue should be framedand decided for the purposes of the seventh and ninth issues also,,and whether they too should be framed.
I venture to consider that in some cases the claim of title bytrust, purchase, and possession is not wholly impossible. It appearsto me that the general purport of the decisions as to what excep-tions can be allowed or not to the strict observance of our Statuteof Frauds, in the absence of any such provision as section 8 ofthe English Statute, may be summarized as follows: —
Verbal agreements respecting any interest in land are not ofthemselves illegal. Ordinance No. 7 of 1840 is only to preventfraud being affected thereby (Ram. 1864, p. 83). Hence on the onehand when the agreement of the transaction, being verbal, cannotbe enforced, moneys paid thereon for the ulterior purpose thereof
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are recoverable as moneys had and received for plaintiffs' use or 1900.condictio indebiti (Morg. 82; Murray, 87: Bam. 1875, p. 267; October 31,
Chen. C. B. 34; 2 0. L. B. 191; 34,472, D. 0., Colombo, 10th Nov^r1’November, 1863 ; 4,353, C. R., Gampola, 3rd July, 1899), as also December u.are moneys otherwise recoverable, e.g., for use and occupation bbowne A.J.(Bam. 1863, p. 83; 4,812, C. R., Matara, “ Lux ” p. 16, 13th March,
1899).
If a title deed has been obtained by fraud, reconveyance by thefraudulent holder will be ordered (Bam. 1860, p. 6; Beven andSieb. 77), but if the deed was put in another’s name and the latterhas possessed for years and died, and it be not shown there wasfraud therein, plaintiff will not be allowed to say that it wasbought by his money and to vindicate it from the deceased’sheirs, 53,611, D. C., Galle, S. C. it/., 6th February, 1889 (CollectiveCourt, Dowan Arachchi’s Case); 91,432, D. C., Kandy, S. C. M.
1st April, 1884.
If, however, a conveyance was on any verbal agreement of jointpurchase made in defendant’s name, and defendant thereafterfraudulently refused to allow plaintiff benefit therefrom, plaintiffmay vindicate his share and defendant cannot set up the Ordinance(Ham. 1869, p. 6; 2 Gren. D. C. 39; 3 S. C. C. 103), and it has beenheld in England that plaintiff may prove by parol evidence that aland in Ceylon was conveyed to another in trust for her, and thatthe grantee knowingly is denying the facts or the trust, and isrelying on the form of conveyance and the statute to keep theland for himself (De La Roche fauld v. Boustead. 45 W. B. 272]1897 , Ch. 196).
In addition to these considerations there has yet to be con-sidered by this Court, when occasion shall arise, whether itwill affirm the principles expressed in the judgment of Mr.
Berwick, District Judge, reported in 3 N. L. R. 150—153, that thedoctrine of implied trusts is in substance part of the Roman-Dutch Law, and that parol evidence to establish them would notviolate our Ordinance of Frauds. Apparently the reasons containedin that decision were not refereed to and not remembered by thelearned judge who had been counsel for plaintiff in that case,when he in 91,432, D. C., Kandy, ui supra, said “ part performance“ of the contract did not take it out of the operation of the“ Ordinance, and the same rule will in principle apply with“ regard to resulting trusts.”
At present, however, it appears to me we are concluded by thedecision in Dowan Arachchi’s Case from allowing any claim oftitle by a purchase by Allis out of defendant’s moneys and bydefendant’s own possession thereafter to be set up by defendant,
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1900.not only in answer to the claim of plaintiffs in succession of title
October 31, from Allis, but even to have her title in this wise upheld and^and declared. The question is not being litigated by her with herNovemberalleged fraudulent trustee, and if in Dnican Araehclii'x ('axe thisBrowne,A .J Court did not allow it to be litigated with his heirs, it seems weshould not suffer it to be raised between those whom the Fiscal’ssale began to make Allis’s successor in title. They may be priviesin title with him; but there is nothing alleged to show they everknew he had bought out of her moneys and that they now areprivies in fraud as well. I consider it will be sufficient, to applyhere the same principles as (in 8,571, D. C-, Colombo, Browne'sRep. '75) was recently done in another matter affected by ourStatute of Frauds, and allow this defendant to give evidenceunder the sixth issue to show by way of defence only, and not ofclaim, what were the real state of facts or agreement betweenAllis and her, so as to sustain her defence under the fourth and{fifth issues. We shall in this way probably sufficiently preventthe Ordinance of Frauds being utilized so as to work a fraudupon her, without enabling her to set aside the Ordinance andprove a title without notarial conveyance against those whopresumably are innocent purchasers for value.
I would therefore set aside the decree and remit for trial of the.first six issues.
Bonser, C.J.—
1 agree in the order proposed by my brother Browne.
As regards the question of resulting trusts, I think that we arebound by the decisions of this Court referred to in his judgment,and that those decisions can only be reviewed by a Full Court.For my own parti I do not feel disposed to do anything to breakdown the barrier which has been raised by the Legislature againstthe admission of oral evidence in cases relating .to land.