MENDIS and others, Appellants, and PARAMASWAMI , Respondent

064-NLR-NLR-V-62-MENDIS-and-others-Appellants-and-PARAMASWAMI-Respondent.pdf


302
BASNAYAK.E, C.J.—Mendis v. Paramoswami
Present ; Basnayake, C.J., and de Silva, J.MENDIS and. others, Appellants, and PARAMASWAMI, Respondent
S. G. 139—D. C. Colombo, 35730
Evidence—Statements made by a deceased -person—-Admissibility—Evidence Ordinance,88, 5, 6, 7, 8 (2), 9, 14, 32 (2)—Trusts .Ordinance—Section 84—Transfer ofproperty to one person for consideration paid by another—Evidence of intentionof purchaser.
A statement of relevant facts made by a person who is dead cannot be-admitted under section 32 of the Evidence Ordinance unless the statement con-sists of the very words of the deceased person and comes within any of thecases (1) to (8) of that section.
Where a firm of Proctors sent a letter to P containing a narration of whatthey had gathered from a communication or communications made to themby S—
.Held, that, alter the death of S, the letter sent by the Proctors to P was notadmissible under section 32 of the Evidence Ordinance as containing a statementmade by S. Further, the statement in the letter did not fall within any of theeight cases in section 32.
Where property is transferred to one person for a consideration paid byanother person, statements made by the purchaser long after the transaction(about four and a half years in the present case), and not contemporaneously,are not relevant under section 84 of the Trusts Ordinance to show that theconsideration was not paid for the benefit of the transferee. *
A
XTXPPEAJLi from a judgment of the District Court, Colombo.
C. Thiagalingam, Q.G., with N. K.umarasingharn and V. Arularribalam,for Executors-Defendants-Appellants. ■
H. V. Perera, Q.C., with S. Sharvananda and Miss Maureen Seneviratne,for Plaintiff-Respondent.-
Cur. adv. vult.
March 13, 1958. Basnayake, C.J.—
The only question for decision on this appeal is whether a letter (inthese proceedings the original is referred to as Dla and the office copyas Dl) sent by Messrs. Julius & Creasy, a firm of Proctors, to the plaintiff’swife on 28th November 1951 can be admitted in evidence for the purposeof proving the fact that when the deceased Arumugam Sangarapillai(hereinafter referred to as the deceased) paid the consideration of onehundred thousand rupees for Times of Ceylon shares numbered 118,581
BAJSNA"5TA33LE, C. J.—J&endis v. JParamastoami
303
to 127,960 transferred to the plaintiff’s wife, he did not intend to pay suchconsideration for her benefit. The document produced is an office copyof the letter and reads as follows :—
Mrs. P. Paramasamy,
c/o Dr. P. Paramasamy,
M. O., Rambodde.
28th November 1951M/L/NT. 1019
Dear Madam,
Times of Ceylon Ltd
We understand from Mr. A. Sangarapillai that you hold sharesnumbered 118,581 to 127,960 of the Times of Ceylon Ltd in Trust forhim and that two Dividends paid to you in respect of these shareshave not been paid to him. We shall be glad if you will please forwardthese warrants either to us on Mr. Sangarapillai’s behalf or to him direct.If the warrants have already been cashed kindly send us a chequefor the equivalent thereof without delay as Mr. Sangarapillai requiresmoneys urgently.
The matter arises for decision in this way. In the course of the cross-examination of the plaintiff, counsel for the defendants put to him thefollowing questions :—
Q. You know that in the Times of Ceylon Ltd there are shares wortha lakh of rupees registered in your wife’s name ?
A. Yes.
Q. Who paid for these shares ?
A. Mr. Sangarapillai.
Q. When ?
A. I do not know’ the exact date, it was somewhere in 1946 or 1947.He did not tell me about it.
Q. When did you come to know about it.1?
A. When ray wife was given a certificate, she brought it and whenshe was putting it in her wardrobe she told me that it wasgiven to her as a present.
Q. Were you asked any question as to what your wife told you ?
A. I was asked when it was given.
Q. Did I ask you as to what she told you ?
► *—>•
A. That was a connected answer.
Q. Did I ask you wbat your wife told you ?
A. No-
Cross- examini ng counsel at this stage made an application that theportion of the witness’s answer in which he states that his wife mentionedit was a gift should be deleted. The learned District Judge refused to
304
BASNAYAKE, C.J.—M.endis v. JParamaswanti
allow this application. The trial was then adjourned for the next day.Before commencing his cross-examination on that day counsel showed,the witness document X)1 and asked him whether he had seen the originalof it. The witness said he had. The plaintiff’s counsel then objectedto its production on the ground that its contents were inadmissible. Hemaintained that it was not admissible under section 32 of the EvidenceOrdinance and the defendants’ counsel maintained that it was admissibleTinder section 32(2) of that Ordinance. The plaintiff’s counsel alsosubmitted that subsequent conduct or statements made by the deceased(in November 1951) are not admissible to prove the nat ure of a transactionthat took place in June 1947. The defendants’ counsel maintainedthat the Evidence Ordinance did not exclude evidence of subsequentconduct.
The learned District Judge held that the document was not admissibleunder section 32(2) of the Evidence Ordinance. He also held that—
“ the conduct and statement of Sangarapillai evidenced by thedocument Dl and Dla are so far separated as to be inadmissible in hisfavour to rebut the presumption of a gift. They are also for the samereason inadmissible in favour of the defendants his Executors for thesaid purpose. I therefore reject the documents Dl and Dla.”
The present appeal is from that decision. Before examining thequestion for decision I shall set out the facts briefly. The defendantsare the Executors of the deceased who died on the 18th of September
The plaintiff is his son-in-law. He has instituted this action torecover a sum of Rs. 57,400 which he alleges that the deceased owedhim at the time of his death. It is common ground that shares to thevalue of Us. 100,000 in the Times of Ceylon Company Ltd were inJune 1947 registered in the name of the plaintiff’s wife and that thedeceased paid the consideration for them. The defendants claim thatthe deceased did not intend to benefit the plaintiff’s wife when he paidfor the shares and that she held the shares in trust for him till his death.The plaintiff claims that the shares were gifted to his wife by the deceased.By his last will which has been admitted to probate the deceased leftthese shares to the plaintiff’s wife.
It would be sufficient for the purpose of this judgment to refer to issues23 and 24 which are as follows :—
“23. Did the late Mr Sangaralingam Pillai pay the Times of CeylonLtd a sum of Rs. 100,000 for shares in the Times of CeylonLtd registered in the name of the plaintiff’s wife ?
24. (a) Did the plaintiff’s wife hold such shares in trust for Sangaralin-gam Pillai until an adjustment of accounts between plaintiffand plaintiff’s -wife on the one hand and Mr. Sangaralingam• Pillai on the other, or'
Was the allotment of such shares to_ plaintiff’s wife in the natureof gift to plaintiff and his wife ?”
BASXAYAKE, C.J.—itfendis t>. Paramastaami
305
To succeed in their claim that the plaintiff’s wife held the shares intrust for the deceased during his lifetime the defendants must provethat the transaction falls within the ambit of section 84 of the TrustsOrdinance. In the instant case they must prove—
(а)that Times of Ceylon shares to the value of Us. 100,000 were
transferred to the plaintiff’s wife in or about June 1947,
(б)that the consideration was paid by the deceased, and
(c) that he did not intend to pay such consideration for the benefit of
the plaintiff’s wife.
(«) and (5) are admitted, but (c) is denied. The burden of establish-ing (c) is on the defendants. In order to discharge this burden theypropose to produce Dl as evidence of a statement made by thedeceased that he did not intend to benefit the transferee whenhe paid the consideration for the shares.
It would appear from Dl—
(а)that the deceased communicated with the firm of Julius & Creasy
orally or in writing before Dl was written.
(б)that in the communication or communications made by the de-
ceased he created in the mind of the person or persons who
received them the impression—
that the plaintiff’s wife held Times of Ceylon shares num-bered 118,581 to 127,960,
that she held those shares in trust for the deceased,
that two dividends had been paid to the plaintiff’s wife,
that she had not paid them to the deceased,
that the deceased a van ted the dividend warrants or if theyhad been realised the amount of such dividends paid tohim.
.As learned counsel for the defendants contended both in the Courtbelow and here that Dl is admissible under section 32 of the EvidenceOrdinance it is necessary in the first place to examine tba,t contention.In the instant case the defendants are seeking to establish the truth of thefacts stated in Dl by producing it in evidence. The document does notcontain the ipsissima verba of the deceased but as stated above a narra-tion by its writer of what he had gathered from a communication orcommunications made to his firm by the deceased.
Now section 32 is the only section of the Evidence Ordinance whichpermits the^proof of relevant facts contained in statements made bydeceased-persons. The type of evidence permitted" b}' the section isknown as hearsay evidence. A statement of relevant facts cannot beadmitted under the—section unless the statement consists of. the verywords of"tile deceased person"ahd comes within any one of the cases (1)to (S) of that section. -aSfoW Dl cannot be admitted in evidence for the
306
3ASNAYAICE, C.J.—Mendie v. Paramaswami
reason that it does not contain a statement made by the deceased. Apart,from that, the statements in the letter do not fall within any one of the-eight cases in section 32.
Learned counsel for the defendants also contended that LI was relevant-under sections 6, 7, 8(2), 9 and 14 of the Evidence Ordinance. The faets-declared to be relevant by those sections must be proved by direct evi-dence. They do not permit the admission of hearsay evidence whichcan be admitted only under section 32. Now clearly the writer does-not claim that he personally knows the matters referred to in LI. Theyare matters communicated to his firm by the deceased. Their truth-cannot therefore be proved by the writer’s evidence.
The further question whether declarations made by the deceased inNovember 1951 were relevant for the purpose of establishing the fact-that the deceased did not, in June 1947, intend to benefit the plaintiff’s-wife when he paid the consideration for the shares in question was arguedin the Court below and decided by the learned Listrict Judge against the-defendants. I agree with the conclusion of the learned Listrict Judge,but not for the reasons given by him. It would appear from the language-of section 84 of the Trusts Ordinance that the state of mind that is re-levant for the purposes of that section is the state of mind the personpaying the consideration had at the time he paid it. That state of'mind must be established by contemporaneous statements or declarations.Statements made long after the transaction are not relevant. Under -our Evidence Ordinance evidence may be given in any suit of the existence-or non-existence of every fact in issue, and of such other facts as are-declared to be relevant by that Ordinance and of no others. (Section 5).Unless a fact is declared to be relevant by a section of the Evidence Or-dinance, no evidence of it can be given and there is no section which.declares LI to be relevant.
Before I part with this judgment there is one other matter to which.I wish to refer, and that is the fact that Ll had not been filed of recordbut was tendered to us for reference at the hearing by learned counselfor the appellants. The procedure regarding the tendering of documents-in evidence is prescribed in section 154 of the Civil Procedure Code, the-Explanation of which is relevant to the matter under consideration..The relevant portion of it reads—
“ If, however, on the document being tendered the opposing partyobjects to its being admitted in evidence, then commonly two-questions arise for the court—
“ Firstly, whether the document is authentic—in other words,,is what the party tendering -it represente it to be ; and
“ Secondly, whether, supposing it to be authentic, it constitutes,legally admissible evidence as against the party who is sought to beaffected by it.
IT. N. Q. FERNANDO, <T.—JPiyadasa ». Pun chi Banda
30T
“ The latter question, in general is matter of argument only, but thefirst must be supported by such testimony as the party can adduce.If the Court is of opinion that the testimony adduced for this purpose,developed and tested by cross-examination, makes out a prima faciecase of authenticity, and is further of opinion that the authenticdocument is evidence admissible against the opposing party, thenit should admit the document as before.
“ If, however, the court is satisfied that either of those questions-must, be answered in the negative, then it should refuse to admit thedocument. Whether the document is admitted or not, it should hemarked as soon as any witness makes a statement with regard to it ;and if not earlier marked on this account, it must, at latest, be markedwhen the court decides upon admitting it.”
I would commend section 154 and more especially its Explanationto all Judges of first instance in civil proceedings.
The appeal is dismissed with costs.de Silva, J.—I agree.
Appeal dismissed„