089-NLR-NLR-V-22-THEEVANAPILLAI-et-al.-v.-SINNAPILLAI.pdf
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1021,
Present: Ennis A.C.J. and De Sainpayo J.THEEVANAPILLAI et al. v. SINNAPILLAI.
219—D. G. Jaffna, 13,799.
Trust—Transfer of land to one person on the verbal understanding thathe was to convey it to another when Ms debts were settle/!—Oralevidence to prove trust.
The land in question was conveyed to the first defendant on anexpress verbal understanding that she was to convey to her sonS when his debts were settled.*
Heldf that oral evidence could be led to prove the trust.
^Jp5E facts appear from the judgment.
E. W. Jayawardene (with him Arulanandan), for the appellant.
H. J. C. Pereira, K.C. (with him Croos~Dabrera), for therespondents.
March 23, 1921. Ennis A.C.J.—
In this case the plaintiffs claimed a conveyance from the defendantof a piece of land to the second plaintiff subject to a life interest infavour of the first plaintiff. The learned Judge directed a con-veyance to be made, and the defendant appeals. It would seem thatthe land belonged to one Arunachalam, who is married to Muttup-pillai, and had a daughter Thankapillai, who is married to Velup-pillai. Arunachalam also had an illegitimate, son, Somasunderam,by the first defendant. Somasunderam was about to be marriedto the first plaintiff, and Arunachalam promised to convey to himthe piece of land in question. For some reason the marriage washurried on, and Arunachalam gave a promissory note for Rs. 600as security for the future conveyance of the land, as he was unable toexecute a deed at the moment. Somasunderam then married thefirstplaintiff, and thesecond plaintiff is the daughter of that marriage.
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Arunachalam died shortly afterwards without executing a convey* 1921.anoe to Somasunderam. Veluppillai administered his estate.j
Somasunderam threatened to sue on the promissory note he held,
whereupon Veluppillai agreed to convey the land and give effect to
his father-in-law’s promise. But by an agreement between Soma- Sinnap^i
sunderam and his mother, the first defendant, as Somasunderam
was in debt, Veluppillai conveyed the land to the first defendant on
January 19,1918, and the first defendant undertook to convey the
land to her son Somasunderam as soon as he should be free from debt.
It appears that Veluppillai m administering the estate of Aruna-ohalam had been put to some expense, and Somasunderam acknow-ledged that he ought to bear a share of that expense, and the sumof Rs. 300 appears to' have been agreed upon as the share whichSomasunderam should bear. On the-date of the qonveyanoe to thefirst defendant of the land, the first defendant executed a mort-gage bond for Rs. 300. No money was passed on the bond, buta debt of Veluppillai was satisfied. Somasunderam then died, andhis widow and daughter now bring the-action against the firstdefendant.
The learned Judge has found as a fact that the land was conveyedto the first defendant “ on an express verbal understanding that shewas to convey it to Somasunderam when his debts were settled, andit could be safely done.” He also came to the conclusion that noconsideration was paid. He, therefore, held that the defendantheld the land in trust for Somasunderam and decreed a conveyance.
On appeal a long argument on tlfe question of fact was addressedto us, but I see no reason to interfere with the finding of fact arrivedat by the learned Judge. There is evidence in support of his finding.
It was contended on appeal that the plaintiff-respondents shouldnot have been allowed to lead evidence in proof of the trust in. theCourt below. This .was the substance of the contention. It wasalso urged that prior to the Trusts Ordinance, No. 9 of 1917, there- was no case of a trust on all fours with the present case. It is,however, unnecessary to consider whether there were any previouscases, because this matter has now to be dealt with on the basis ofthe Trusts Ordinance, 1917, and on the basis of the EvidenceOrdinance. The respondents urge, and I think rightly, that thiscase is not a case of a constructive trust within the meaning ofchapter IX. of the Trusts Ordinance, and if that be so, it can onlybe an express trust. jBut it was urged for the appellant that suchwould not be valid unless in writing as required by section 5 of theTrusts Ordinance. This contention was met by Mr. Pereira, for therespondents, by pointing out that section 118 of the Trusts. Ordinanceallowed of the application of English law where there was nospecific provision in the Ordinance, and he pointed out that by theEnglish law of secret trust that is an express trust which has not been *clothed in the legal formalities required by law a failure to perform
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1921.
Enmib A.C.J.
Theeoana-pUlaiv. ■Sinnapilgai
the trust ,is itself an act of fraud, and Mr. Pereira urged that theproviso at the end of section 5 covered the present case in conse-quence. In my opinion this contention is right, and quite apartfrom the fact that evidence of fraud may always be led, the plaintiffs,who are the representatives of a person who is not a party to theconveyance to the defendant, are entitled under section 99 of theEvidence Ordinance to adduce evidence of a contemporaneousagreement varying the terms of the agreement. The dooumenttakes the form of a conveyance on sale. The evidence led showsthat it was executed in pursuance of a contemporaneous agreementthat theland should beheld on trust to be conveyed by the defendantto her son Somasunderam. In the circumstances, I am of opinionthat the decree appealed from is right, and would dismiss the appeal,with costs.
Mr. Pereira, for the plaintiff-respondents, voluntarilyexpressed hiswillingness that we should add that the plaintiff-respondents willpay the. mortgage debt of Rs. 300 and interest incurred by the firstdefendant.
De Sampayo J.—I agree.
Appeal dismissed.