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is March 10.
Civil Procedure—Framing of issues—Deed of Conveyance—Consideration otherthan that recited—Evidence Ordinance, s. 92.
Even where both parties to a deed of transfer of land agree that theconsideration was other than that recited, bnt are at issue as to what itreally was, it is not open to the Court to frame an issue on the latterpoint unless both parties consent.
HE plaintiff, a Kandyan woman, had executed a transfer infavour of her daughter and one Dingirihami, which on its
face purported to be a sale of three lands to them in considerationof the sum of Rs. 300 paid to her by them.
She brought the present action for the purpose of having thesaid transfer cancelled and declared null and void, not on thepimple ground that there was a failure of the recited consideration,but that there was no money consideration, and that the realconsideration was an undertaking on the part of Dingirihami toregister his marriage with the plaintiff’s daughter, with whom hehad been living, and that, he had failed to register the marriage,and had deserted her daughter, whereby the consideration for the
transfer had wholly failed._
Dingirihami answered admitting that there was no money con-sideration, but not agreeing that the consideration was his promise
W. M. RAMMENIKA v. R. M. KIRIC. B., Kurunegala, 7,814.
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to register the marriage. He asserted that the consideration was.fa his love and affection for the plaintiff’s daughter, which he had• fulfilled by living with her until she drove him away and tookanother husband, with the connivance of the plaintiff.
The case underwent two trials in the Court below. At the firsttrial one of the issues agreed to by the proctors for the partieswas, “ Was the transfer executed in order to induce the firstdefendant to register his marriage with the second defendant andto continue to live with her as her husband, or was it executed forthe latter purpose only?”
At the first trial, on 29th November, 1900, the Commissionerdismissed the plaintiff’s claim on an issue framed by himself,viz., ” Has the Court, jurisdiction, the action being for breach ofpromise of marriage? ” which he decided adversely to the plaintiff.
On an appeal by the plaintiff the case was sent back for the trialto be proceeded with.
At the second trial, on 7th November, 1902, fresh issues werenot framed by the proctors, but the Court framed' the issue, “ Whatwas the consideration for the transfer? Was it the undertakingof the first defendant to register his marriage? Or was it hisagreement to live with the second defendant as husband and wife? ”
The first defendant’s proctor objected that it was not open tothe plaintiff to set up a consideration different from that recited.The Commissioner held that the first defendant might, undersection 92 of the Evidence Ordinance, have resisted the attemptto set up a different consideration, but had not done so, and hadconsented to an inquiry as to what really formed the consider-ation. He held that the consideration was the registration of themarriage, and that the first defendant had no excuse, but was-solely to blame for not • registering it, and he gave judgment forthe plaintiff.
The first defendant appealed.
F. J. de Saram, for apapellant.
Cut. adv. vult.
10th March, 1903. Pereira, A.J.—
This is an. action by the plaintiff to have what is called a
transfer deed,” executed by her in favour of the two defendants,cancelled. The deed, on the face of it, is a conveyance ofcertain lands by the plaintiff in favour of the defendants “ inconsideration of Rs. 300, lawful currency of Ceylon,” paid by thedefendants to the plaintiff. The plaintiff says that the trueconsideration of the deed was the first defendant’s promise to” register his marriage with the second defendant and to continue to
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five with the second defendant as her husband, ” that the first defen-dant committed breach of this promise, and hence the considerationfor the deed failed.
The main, if not the only question in appeal is whether it wascompetent to the Commissioner to frame an issue on theseallegations of the plaintiff. The contention of the first defendant’sproctor in the Court below appeal's to me to be sound. Whileby our law, both before aud after the Evidence Ordinance of1895, a party to a deed may be allowed merely to negative thestatement therein as to what I may call the transit of consideration,or to show that the particular consideration mentioned therein hasfailed, it is not open to him to show that the consideration wa3other than that stated in the deed, and that there was a failure ofthat other consideration. The Commissioner, however, framed theissue because the plaintiff, as he says, “ consented to inquiring asto what really formed the consideration.” The consent he refersto is apparently in the memorandum of issues appearing at page28 of the record dated the 15th October, 1900; but that memo-randum was filed at a stage of a case which had become matter ofhistory past and dead when necessity to frame fresh issues aroseon the 7th November, 1902. The parties had long since ceased tobe bound by that memorandum. The first defendant’s objection tothe issue must prevail.
I do not fail to notice that the first defendant in his answermakes an admission to the effect' that no money considerationpassed on the transfer, but that the true consideration was loveand affection. Inasmuch as a Kandyan deed of gift is ordinarilyrevocable at the will and pleasure of the donor, it may possiblybe, as the learned Commissioner observes, that it is still open tothe plaintiff to revoke this deed, but that, if it can be done, mustbe done in the usual way. Her present action fails. The judg-ment is set aside, and the plaintiff’s claim is dismissed.
February 27<6 March 10.
W. M. RAMMENIKA v. R. M. KIRI BANDA