129-NLR-NLR-V-57-D.-THOMAS-et-al-Appellants-and-D.-R.-FERNANDO-Respondent.pdf
1956Present : WeerasoorJya, J., and Sanson!, J.D. TH03IAS el ah, Appellants, andD. R. FERNANDO, Respondent
S. G. 190—D. G. Colombo, 6,646jL
Evidence Ordinance, s. 92—Deed of sale—Parol evidence to contradict its Units relatingto the consideration—Admissibility.
Tho consideration is an essential term in a contract of sole. Section 92 ofthe Evidenco Ordinance debars a party to the deed of sale from adducing parolevidence to prove that the consideration for the deed was not moneyand therefore the deed was not a sale but represented an entirely differenttransaction.•
jA^PPEAL from a judgment of the District Court, Colombo.
H. A. Koatfegoda, with P. Ranasinghe, for the defendants appellants.G. V. Ranaicake, with G. IVickremenayake, for the plaintiff respondent.
Cur. adv. wit.
February 3, 1956. Saxsoxj, J.—
The plaintiff sued three defendants in this action for a declaration oftitle to four lands, damages for alleged wrongful possession of thoselands by the defendants, and for ejectment. He based his claim on adeed dated 23rd February 1952 by which their owner Venjo Fernandoconveyed them to him. That deed purports to be a deed of sale byVenjo Fernando to the plaintiff for a consideration of Rs. 3,000. Thedefendants by their first answer pleaded that the plaintiff had procuredthe execution of this deed by fraud and undue influence, without payingVenjo Fernando any part of tho consideration, and they claimed that notitle passed to the plaintiff. They further pleaded that when VenjoFernando died on 26th February, 1952, her title passed to her grandsonand sole heir, the 1st defendant. By an amended answer they claimedalternatively that as the consideration of Rs. 3,000 had not been paidby the plaintiff to Venjo Fernando, the plaintiff was liable to pay thatsum to the 1st defendant in the event of the Court holding that theplaintiff was entitled to the lands in dispute.
"When the trial began the defendants’ Counsel stated that as he hadinsufficient evidence to establish the pleas of fraud and undue influence,he rested his case only on the claim for the payment of the considerationas set out in the amended answer. The plaintiff’s Counsel then suggestedthe following issues.:—
1. Was there consideration for the deed in question ?
' 2. Damages (damages agreed upon at Rs. 25 a month).
The defendants’ Counsel then suggested :.
Was the consideration of Rs. 3,000 mentioned in the deed
1458 of 23rd February 1952 paid to Venjo Fernando ?
If not, is the plaintiff liable to pay the said sum to the
1st defendant ?
The plaintiff’s Counsel finally suggested :
Even if issue (4) is answered in the affirmative, .can the minor
claim this money in this case ?
The notary who attested the deed was called as a witness for thoplaintiff. It then became clear that Venjo Fernando executed this deedwithout any prior agreement between her and the plaintiff that he shouldbuy, or that she should sell, the lands. The consideration ofRs. 3,000 seems to have been fixed by the notary because a figure hadto be mentioned for the purpose of stamping the deed. The plaintiffwas not present when the deed was executed, nor had he given anyearlier instructions to the notary to prepare tho deed. The plaintiffalso gave evidence, in the course of which he said : “I knew' Venjo wasgoing to transfer the properties to me. I did not know whether she wasgoing to sell or gift the lands to me. She only told me that the landswould be written in my name ”.
In view of this evidence the learned District Judge took the view thatalthough the deed purported to bo a deed of sale the transfer v'a3 not infact a sale. He held that it was a donation and accordingly gave judg-ment for the plaintiff and dismissed the defendants’ claim in reconven-tion. The defendants have appealed.
It was in the light of the evidence of the notary that the learned Judgeanalysed the transaction and reached tho conclusion to which I havereferred. Apparently that evidence was regarded by him as relevantand admissible on issue (1) which seems to have been suggested by theplaintiff's counsel in anticipation of the evidence which the notary and theplaintiff were to give. The plaintiff stated that as he had assisted andlooked after Venjo (who was his sister) in her last illness, and as she wasexpecting further assistance from him, she had executed the deed inhis favour. The plaintiff’s counsel seems to have argued that on thesegrounds the consideration for the deed was not Rs. 3,000 as recited in itbut something else, namely, the assistance already rendered and to borendered by the plaintiff to Venjo. Although no objection was raisedby the defendants ’ Counsel to issue (1) or to the evidence of the notary,he seems to have become alive to the situation when the plaintiff gaveevidence, and he objected to it. I understand the objection to be thatsuch evidence was not admissible to contradict or vary the considerationrecited in the deed or any other term of it. It seems to me that sincethe plaintiff came into Court on the basis that title to the lands in disputehad vested in him on this doed which on the face of it (though not sostated in the plaint) was a sale for a consideration of Rs. 3,000, and theonly defence on which the defendants went to trial was the alternativeclaim in the amended answer for the payment of the consideration ofRs. 3,000, the plaintiff was precluded from raising the issue whetherthere was consideration for the deed. It follows that the evidence of
the notary and of the plaintiff should fSsonothavo been admitted, sincewhat- the plaintiff tried in effect to prove by means of that evidence wasthat the consideration for the deed was not money and that therefore thedeed was not a sale but represented an entirely different transaction,and the admission of such evidence contravened the provisions of S. 92of the Evidence Ordinance.
I would refer to Nadarajah v. JRanialingam *. Bertram C. J. in thatcaso held that the consideration for a grant is a term of the grant, andhaving regard to the essentials of a sale the consideration is an essentialterm in a transaction of sale. He also held that a party to a deed ofsale was not entitled to contradict its terms relating to the consideration.
This is not one of those cases where one party to a deed attempts togo behind a statement in the deed regarding the actual payment ofconsideration, in which event the other party will be permitted to showwhat the real consideration was. Hero the plaintiff has without justi-fication contradicted the term of the deed relating to the consideration,although no at tempt was made by the defendant to attack any term of thedeed. Further authority for this view will be found in Velan Alvan v.Ponny Keuneman J. held that oral evidence was not admissible toprove that the consideration was different from that stated in the deed,except in cases to which proviso (1) to S. 92 applies, namely, where thevalidity of the deed was in issue, or where a decree or order was beingsought relating to the deed itself. He accordingly decided in thatcase that oral evidence w as not admissible to prove that a deed whichpuiported to be a transfer for valuable consideration was a deed ofdonation.
It follows that the deed in question must be treated as a valid deedof sale by Venjo to the plaintiff for a consideration of Rs. 3,000, and asthis 4um has admittedly not been paid by the plaintiff, it is now' due toVenjo’s sole heir, the first defendant.
I would therefore set aside the judgment and decree under appeal anddirect that a decree be entered declaring the plaintiff entitled to the landsdescribed in the Schedule to the plaint, and to possession, and ejectmentof the defendants therefrom, and ordering the plaintiff to pay into Courta sum of Rs. 3,000 for the benefit of the minor 1st defendant. Thedecree will further provide that the plaintiff is not entitled to enforcehis right to possession of the lands, or to eject the defendants therefrom,until payment into Court of the said sum of Rs. 3,000, and that as fromthe date of such payment he will also be entitled to damages at the rateof Rs. 25 per mensem till he is restored to possession. Since the plaintiffwas neither ready nor willing to honour his obligation to pay the purchaseprice mentioned in the deed, he was not entitled to claim damages forbeing kept out of possession of the lands in dispute prior to such payment. .
As the plaintiff has failed on the only matter in controversy at tlio trialand on this appeal, he must pay the defendants their costs in both Courts.
YVeerasooriya, J.—I agree.1 (IMS) 21 N. L. F. 38.
Appeal allowed.* (1939) 41 N. L. F. 106.