009-SLLR-SLLR-2009-V-1-PEIRIS-AND-ANOTHER-vs-SIRIPALA.pdf
CA
Peiris And Another vs. Siripala
75
PEIRIS AND ANOTHER
vsSIRIPALA
COURT OF APPEALRANJITH SILVA. JSALAM. JCA 49/2001(F)
DC HOMAGAMA 1798/CDFEBRUARY 2, 2009MAY 6, 21, 2009
Declaration – Deed void – fraudulent – Civil Procedure Code Section 35(1) -Joining of causes of action without leave of Court-Fraud alleged-Corroboration necessaryP-Burden of proving fraud-Beyond reasonabledoubt or balance of probability? Non est factum?
The plaintiff-respondent instituted action seeking a declaration that thedeed of transfer 4881 – be declared void on the basis that the defendant-appellants have unlawfully and fraudulently manipulated the transferof the entire land to the 1“ appellant. The trial Judge held in favour ofthe plaintiff-respondent.
It was contended by the defendant-appellant that the cause of action tohave the impugned deed declared null and void cannot be joined witha cause of action for a declaration of title to the immovable propertywithout leave of Court first had and obtained.
Held:
The plaintiff respondent in the issues raised had confined himself tohave the impugned deed set aside and had not proceeded to raise anissue with regard to declaration of title. Once issues are raised andaccepted by Court the case goes to those issues raised.
Even if the respondent had formulated issues on both causesof action, such procedure is perfectly in order. The law permitsone to adopt such a cause and is not repugnant to Section 35(1).There is no misjoinder as there is in reality only one cause of action.A prayer for invalidation of a deed is consequential to a prayer fordeclaration of title.
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Held further:
Corroboration is not the sine quo non in matters where fraud isalleged.
Per Ranjith Silva, J.
“In Roman Law fraud is defined as omnis calliditas, fallacia,machination, adtircumveniendum alterem adhibita meaningany craft deceit or machination used to circumvent deceive orensnare another person, an alienation alleged to be in fraud ofcreditors is voidable, it is valid till it is set aside”.
The standard of proof remains on a balance of probability althoughthe more serious the imputation the stricter is the proof which isrequired.
(5) The defendant-appellants and a witness gave uncontroverted •evidence on behalf of the appellants with regard to thecircumstances under which the impugned deed was executed.The evidence is insufficient to prove fraudulent misrepresentationor undue influence. The evidence is insufficient to show that theplaintiff-respondent was tricked or gypped by the appellants toexecute the impugned deed-it appears that the trial Judge hadbeen obnoxious to those important facts.
APPEAL from the judgment of the District Court of Homagama.
Cases referred to:-
Godamune Punnakithtthi Thero vs. Thelulle Narada Them – CA65/90- De 1418/L
Dharmasiri vs. Wickrematunge 2002 2 Sri LR 218
Fernando vs. Lakshman Perera 2002 2 Sri LR at 413
Haramanis vs. Haramanis 10 NLR 332
Madar Saibo vs. Sirajudeen 17 NLR 97
Yousf vs. Rajaratnam (1970) 74 NLR at 9
Associated Battery Manufacturers Ltd vs. United EngineeringWorkers Union 1975 – 77 NLR 541 at 544
Foster vs. Mackennon 1896 LR 4. CP 704
Luwis vs. Clay – (1898) 67 LJQ 224
CA
Peiris And Another vs. Siripala.
(Ranjith Silva, J.)
77
Ranjan Suwandaratne for appellant.Nihal Jayamarute PC for respondent.
cur.adv.vult
June 18, 2009RANJITH SILVA. J.
The Plaintiff Respondent (hereinafter referred to asthe Respondent) instituted action bearing number 1978/CD in the District Court of Homagama, against the 1st andthe 2nd Defendant Appellants (hereinafter referred to as theAppellants) seeking inter alia for a declaration that the deedof transfer bearing number 4881 marked as P2 be declaredvoid on the basis that the Appellants have unlawfully andfraudulently manipulated the transfer of the entire land to thefirst Appellant. After trial the Learned District Judge by hisjudgment dated 04.01.2001 held in favour of the Respondent.Being aggrieved by the said judgment the Appellants havepreferred this appeal to this Court.
One of the main legal arguments of the Appellants, putforward in their submissions was based on section 35 (1) ofthe Civil Procedure Code. The relevant issue is issue number6. The Appellants argued that a cause of action to have thedeed P2 declared null and void cannot be joined with a causeof action for a declaration of title to immovable propertywithout leave of court first had and obtained. Appellantsargued that the Respondent should have dropped one ofthe causes that is, the Respondent should have eithermaintained the cause of action for a declaration of title orshould have abandoned that cause of action and maintaineda cause of action for a declaration that the aforementioneddeed P2 was a fraudulent deed and therefore was void. Butthis argument appears to be unfounded and untenable forthe reason that the Respondent had in his issues raised
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at the time, confined himself to the cause of action to havedeed number 4881 (P2) declared void and had not proceededto raise an issue with regard to declaration of title. In thisregard I would like to refer to issue number 1-5. 12.13 and 14which are found at pages 78, 79 and 80 of the brief. In any ofthe said issues the Respondent has not prayed or claimed adeclaration of title to the premises, but has only prayed thatthe impugned deed P2 be declared void.
It was not necessary for the Respondent to seek adeclaration of title as the Appellants have admitted that theplaintiff became entitled to this land on deed number 6027of 3rd bf January 1997 (PI). In this regard I would like torefer to admission number 2. Once issues are accepted bycourt the case goes to trial on those issues and the case istried and determined on the admissions and issued raisedat the trial. The pleadings become crystallized in the issuesand the pleadings recede to the background. Therefore thecontention put forward by the Appellants goes overboard.(Vide Godamune Pannakiththi Thera Vs TheluUe NaradaTherow and Dharmasiri Vs Wickramathungal2))
On the other hand, assuming without conceding that theRespondent had formulated issues on both causes of actionnamely declaration of title and for a declaration that deed P2is void, I find such procedure to be perfectly in order. Thelaw permits one to adopt such a cause and is not repugnantto section 35 (1). There is no misjoinder as there is in realityonly one cause of action. A prayer for invalidation of a deed(in this case P2) is consequential to a prayer for declaration oftitle. It is to prevent the Respondents from alienating the landor in order to prove that he still retains title and that he hasnot alienated his rights. In this regard I would like to refer tothe case reported in Fernando Vs Lakshman Pererat3] at 413.
CA
Petris And Another vs. Siripala
(Ranjith Silva, J.)
79
The facts
The original owner of the land more fully described inthe schedule to the plaint was the father of the Respondent,Weerakkodige Don Pubilis who gifted the said land containingin extend 2 Roods, to the Respondent by deed of gift bearingnumber 6027 dated 3rd of January 1996 which is markedas PI. According to the Respondent he was eighty years ofage at the time, a bachelor and an epileptic from his earlychildhood, with a short memory and nervous debilitiesrelated to the functions of the brain and was under treatment forthe said debilities and ailments. According to the Respondenthis right Eye had been removed after an eye surgery andhis eye sight was weak. It is common ground that theRespondent resided in the house situated on this land allby himself and that the Respondent allowed and permittedthe Appellants who were husband-and-wife to stay in a partof the Respondents house without any payments as rentor lease. The Respondent had given such permission onsympathetic grounds and as the applicants had pleaded withhim to provide them with shelter. On or about 11th of July1991 the Respondent conveyed the said land and premises tothe Appellants on a deed of transfer executed before a NotaryPublic by the name of A. A. Karunaratne. After some timeaccording to the Appellants, the Respondent chased awaythe first and second Appellants from the said premises andthereafter filed this action against the Appellants. But theversion of the Respondent was that the appellants voluntarilymoved to a different premise.
The version of the Respondent was that the Appellantswho were feigning affection towards the Respondent from thevery beginning, pleaded with the Respondent to give them10 perches of land from and out of the said land to theAppellants and persuaded him on the 11th of July 1991 to go toa Notary Public by the name of A. A. Karunaratne on the pretext
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of alienating only 10 perches of land and that the Appellantshave fraudulently got a deed of transfer executed in respect ofthe entire property for a consideration of rupees 25,000., thatafter the purported transfer the Appellants moved out of theplaintiffs premises even without informing the plaintiff andtook residence elsewhere. The position of the Respondent wasthat, as an act of benevolence he decided to gift 10 perchesout of the land to the Appellants as the Appellants werelooking after him for some time.
It was further contended on behalf of the Respondentthat the notary who executed the deed P2 was involved inexecuting a forged Last Will on a previous occasion. In proof ofthis fact the Respondent produced the Judgment in T/1643of the District Court of Panadura marked as P4. at the trial inthe District Court.
As against this contention, it was contended on behalfof the Appellants that the Respondent had agreed to sellthe land to the Appellants for 70,000 rupees and that inorder to save a part of the Stamp fees they mentioned 25,000rupees as consideration in the deed P2. It was also contendedon behalf of the applicants that no fraud was practiced onthe Respondent and that the complainant, for nearly 1 yearnever complained to the police or to any other authoritythat the Appellants got the conveyance executed in fraud ofthe Respondent. It was further contended on behalf of theAppellants that the Respondent chased away the Appellantsfrom the said premises and as an afterthought filed actionagainst them at the instigation of the neighbours, some ofthem who were related to the Respondent.
The Respondent in his evidence alleged that at therequest of the first Appellant he agreed to give 10 perches
CA
Peiris And Another vs. Siripala
, (Ranjith Silva, J.)
81
out of eighty perches from his land, as an act of charity andthat consequently the Respondent went together with theAppellants before a notary. The Respondent has also admittedthat he signed the deed in question before the saidnotary. The Respondent alleged the after some time,he became aware that the notary had misled himand got a deed of transfer executed for 80 perchesinstead of a deed of gift for 10 perches. The Respondentadmitted that he had not taken any steps whatsoever againstthe said notary not even a complaint to the police, althoughthe Respondent in his plaint and in evidence has madeserious allegations against the Appellant and the notarypublic. The Respondent did not produce a single complaintmade to the police or any other authority against the notaryprior to the institution of the action. This conduct of theRespondent shows that there was nothing at the time tocomplain and that all these allegations are afterthoughts.This conduct of the Respondent is an indication that theRespondent, having conveyed the said property voluntarily,changed his mind subsequently due to reasons best knownto him probably at the instigation of the neighbours andthe relatives and instituted action in order to reclaim whathe conveyed to the Appellants. It appears that the LearnedDistrict Judge had been oblivious to these important facts.Especially so in the face of the evidence of the Respondentwherein he had stated that he has several relatives livingin the neighbourhood and that he instituted action inconsequence to a request made by one of his relatives. In hisevidence the Respondent has disclosed that even the gift of10 perches he had kept a secret from his relations.
Generally corroboration is not the sine qua non inmatters where fraud is alleged. However the fact that therespondent’s position was not corroborated by any other
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evidence cannot be disregarded in the light of theoverwhelming evidence placed by the appellants in regardto the transaction in question. On the contrary theAppellants gave evidence and a witness to the said deedin question has also testified in court in support of thecontention of the Appellants. The appellants, in their evi-dence have stated about the payments made in considerationof the conveyance executed in their favour. Although it wasnot necessary under the circumstances to lead evidence toshow or prove the execution of the deed the appellants haveled evidence to prove the execution of the deed P2 despitethe fact that it may not be up to the required standard. TheRespondent has admitted having gone to the notary andhaving signed the document. Therefore the execution ofdeed P2 was never in dispute. I hold that it is not necessaryto prove the execution of P2, because the Respondenthad admitted the execution of the contentious deed P2.From the arguments, what I deduce is that the Respondentis attempting to prove fraudulent misrepresentation on thepart of the Appellants. This fact is augmented by the defenceof non est factum the Respondent has relied on, of whichI shall be dealing with in a separate chapter. Although awise man in his normal senses would not have donated theentire property that he owns, under certain circumstances,in a frail moment or weak moment could get emotional andtransfer everything that he has and that is not impracticable orimprobable. Such an act cannot be branded as preposterousor impossible.
NON EST FACTUM
This defence has no application to the facts andcircumstances of this case. One could have recourse to thisdefence only if the application of the defence is warranted
CA
Peiris And Another vs. Siripala
(Ranjith Silva, J.)
83
by the facts. In this case the evidence is insufficient to proveeven on a balance of evidence that the Appellants practiceddeception or fraud on the Respondent. In this case the onlyevidence available in order to prove fraudulent misrepre-sentation or deceit is the evidence of the Respondent.The other witnesses merely referred to the facts that theAppellant was a recipient of janasaviya and that the notarywho executed P2 was suspended. On the other hand the 1stand the 2nd appellants and a witness gave uncontrovertedevidence on behalf of the Appellants with regard to thecircumstances under which the impugned deed wasexecuted. The evidence is insufficient to prove fraudulentmisrepresentation or undue influence. The evidence isinsufficient to show that the Respondent was tricked orgypped by the Appellants to execute deed P2.
In Roman Law fraud is defined as omnis calliditas, fal-lacia, machination, adcircumveniendum, alterem, adhibitameaning any craft, deceit or machination used to circumvent,deceive or ensnare another person. Wood Renton J.in Haramanis Vs Haramanis<4' held that an alienation allegedto be in fraud of creditors is voidable; that is to say that it isvalid till it is set aside. In Madar Saibo Vs Sarajudeen[5) it washeld that a fraudulent, unlike a deed executed by a person notcompetent in law to enter into a contract is, under the Ro-man Dutch Law, is valid until it is set aside or cancelled, andwhen it is cancelled, the cancellation refers back to the dateof the deed.
In Sri Lanka the earlier view was that the burden ofproving fraud in regard to a civil transaction must be satis-fied beyond reasonable doubt (Vide YoosoofVs Rajaratnami6)).But the law as it stands to day is that the standard of proofremains on a balance of probabilities although the moreserious the imputation, the stricter is the proof which is
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required. (Associated Battery Manufacturers Ltd Vs UnitedEngineering Workers Union™)
Therefore I hold that there is no basis for the applicationof the defence of NON EST FACTUM. The decisions is Foster VsMackinnon{8) and Lewis Vs Clai/9' cited by the counsel for theRespondent has no application to the facts andcircumstances of the instant case.
For the reasons adumbrated I hold that the LearnedDistrict Judge has come to an erroneous conclusion on thefacts and the law and therefore the impugned Judgmentshould not be allowed to stand. I allow the Appeal and setaside the Judgment dated 04.01.2001, but make no order forcosts.
SALAM, J -1 agree.
Appeal allowed.