006-NLR-NLR-V-21-NADARAJA-et-al.-v.-RAMALINGAM.pdf
I 88 )
1918.
Present: Bertram C.J. and Ennis J.
NADABAJA et al. v. BAMALINGAM.
156-^D. C. (Inty.) Jaffna, 12,056.
Evidence Ordinance, s. 92—Statement in deed that sum of Rs. 4,000 teasconsideration, and that it teas paid—Action by vendor for recoveringbalanceconsideration, alleging that only Rs. 2,500 was paid—
Oral evidence led to prove that actual consideration agreed upon.was Rs. 2,500.
In a deed of transfer it was stated that the consideration was asum of Bs. 4,000, and that it was paid. The vendor, allegingthat only Bs. 2,500 was paid, sned the purchaser for the balance.
Held, that it was open to the purchaser to prove that the con*sideration for the transfer was Bs. 2,500 and not Bs. 4,000.
“ The plaintiff comes into Conrt repudiating a statement withregard to the payment of the consideration, and if he is allowed topnt that forward, he ought also to suffer the person whom heattacks to show the real nature of the transaction.”
T
HE plaintiffs-appellants sued the defendant-respondent for thepayment of a sum of Bs. 1,890, being the amount of balance
sum and interest due from the defendant-respondent to the plaintiffs-appellants on account of the transfer of a piece of land by them tothe defendant-respondent.
1 (1912) 16 N. L. E. 43.* (1913)16 N. L. R. 306.
The defendant-respondent filed answer denying that any suxn ofmoney was due from him to the plaintiffs-appellants, and statedthat the actual consideration agreed upon was Bs. 2,500, and notBs. 4,000 as recited in the transfer deed P 1.
The following issues were framed:—
la-it open to the defendant to urge that the real consikeration
was not the sum mentioned in the transfer, but anotheramount?
If it is, what was the consideration agreed upon by the
parties?
The District Judge (Dr. P. E. Pieris) answered the first issue in theaffirmative, and held that the consideration which the defendantagreed to pay was Bs. 2,500.
The plaintiffs appealed.
The deed in question was as follows: —
P 1.
Transfer No. 436.
To all to whom these presents shall come:
Nagamuttar Nadarasar and wife Nagaratnam, both ofVaddnkkoddai West:
Send Greeting.
Whereas underandbyvirtue ofa dowrydeeddated December
10, 1907, and attestedby,&£., underNo. 6,829,thesaid Nagamuttar
Nadarasar and wife Nagaratnam are seized and possessed of a pieceof land called Mullaikkaddaiady,inextent 10lachamsvarakuculture,
with house, well, and other appurtenances, situated at VannarponnaiWest, and more fully described in thejschedule:
And whereas ‘thesaidNagamuttarNadarasarandwife Nagaratnam
have. agreed for the absolute .sale and assignment to MangapperumalSmnathamby Bamalingam of VannarponnaiWest' of.thesaidpremises
intended to be hereby granted and oonveyed free from encumbrancesat the price or sum of Bs. 4,000:
Now know ye, and these presents witness, that the said NagamuttarNadarasar and wife Nagaratnam, both of Vaddnkkoddai West, inpursuance of thesaidagreement, andin considerationof the sum of
Bs. 4,000 paid by the said Mangapperumal Sinnatamby Bamalingamof Vannarponnai West (the receipt whereof, &c.), do hereby grant,convey, assign, transfer, set over, and assure unto the said Mangap-perumal Sinnatamby Bamalingam,hisheirs,Ac.,thesaidpieceof land
called Mullaikkaddaiady, in extent 10 lachams varaku culture, withhouse, well, and other appurtenances, situated at Vannarponnai West,more particularly described andsetforth inthescheduleto these
presents, together with all buildings, privileges, easements, and otherappurtenances whatsoever to the said premises belonging, or in anywiseappertaining or usually' held or enjoyed therewith or reputed to belongor be appurtenant thereto, and all the estate, right, title, &c.
Signed, witnessed, and attested June 3, 1914.
Hayley and J. • Joseph, for the appellants.
A. St. V. Jayawardene and Arulanandan, for respondent.
21/8( 40 )
IMS. August 29, 1918. Bebtbah C.J.—
Nadarajav. This case has been very fully and forcibly argued, but it practi-cally comes to a question of fact and to the consideration of onequestion of law. Now, with regard to the question of fact, thelearned District Judge has given a very explicit finding, and I donot see how we can be asked not to accept that finding. Apartfrom that, I agree with the finding.
{His Lordship dealt with the facts, and continued]:—
Now as to the law. The terms of section 92 of the EvidenceOrdinance are clear enough, and, unless the defendant can showsome good ground'for escaping from the terms of the main part ofthat section, those terms are fatal to him. The principle of law asembodied in this section is that, where the terms of any grant orany other disposition of property have been reduced to the formof a document no evidence of any oral agreement or statement shallbe admitted for the purpose of contradicting those, terms; andin this case, undoubtedly, as it seems to me, the defendant comesforward and contradicts a term of the grant, the consideration.He says that the consideration was not Bs. 4,000 but Bs. 2,500, andthe question is, on what principle in the face of that section, canhe be allowed to do so ?
Now, Mr. Jayawardene, in his very full and carefully presentedargument, tried to justify his claim on a very general principle, whichhe deduced from certain Indian reports. He put before us aseries of Indian reports and the principle which they appear toenunciate is that there is nothing in section 92 of- the EvidenceOrdinance to prevent a party from showing that the considerationof a document was different from the consideration therein described.Several of those cases simply refer to the previous cases in whichthat remark appears. They give no explanation of its principle.They appear to start from the ease of Hukumchand v. Eiralal,where no authority is cited for the principle laid down. Some ofthe cases cited by Mr. Jayawardene, in particular the case ofIndirjit v. Lai Chand,2 which was carried to the Privy Council, laiddown, on the other hand, a perfectly intelligible principle, namely,that it is competent to a party to adduce evidence to show thatarrangements were made by which the consideration stipulated forin the deed was to be discharged in a particular manner. Suchevidence does not contradict the amount of the consideration. Itproceeds on the basis that the amount of the consideration is trulystated. But it provides that the payment shall be made in parti-cular instalments, or by means of a set-off, or in some other manner.
In regard to the first group of cases, starting from the caseof Jiukumchand v. Hiralal, 1 they • appear to proceed upon theassumption that a statement in a deed that the consideration for1 (1876) 1. L. B. 3 Bom. 169.* (1895) I. L. B. All. 168.
( 41 )
the deed was a certain amount is not a tarn of the deed, but only arecital of a fact, of which consequently contradictory evidence maybe given under the third explanation to section 91. I find myselfentirely at variance with the assumption which seems to iindnrjj«those oases. It seems to me perfectly clear that a considerationfor a grant is in the nature of things a term of the grant. In casesunder the Statute of Frauds in England, where that statute requiresa contract to appear in writing, it has always been held that theconsideration is an essential part of the contract. (See Taylor onEvidence*, vol. 2, paragraph 1024s, and the oases cited under thatparagraph.) It must equally be the case that, where a grant is madein pursuance of a contract, the consideration for the grant is one ofits essential terms. I do not feel, therefore, that it is possible togive relief to the defendant from the effect of section 92 on the firstground suggested by Mr. Jayawardene.
IMS.
Smui
CU.
BamaKngam
But there is another and a stronger ground. A series of cases hasbeen cited to us which enunciate an equitable doctrine, which, inmy opinion, applies in this case. They originate from the principlelaid down in the case of Shah Mukhun hall v. Baboo Sree KishenSingh.1 That principle is stated as follows:“The rules of evi-
dence, and the law of estoppel, forbid any addition to, or variationfrom, deeds or written contracts. The law, however, furnishesexceptions to its own salutary protection, one of which is, when oneparty for the advancement of justice is permitted to remove theblind which hides the real transaction; as, for instance, in cases offraud, illegality, and redemption; in such cases the maxim applies,that a man cannot both affirm and disaffirm the same transaction,show its true nature for his own relief, and insist on its apparentcharacter to prejudice his adversary. ” That case has been followedin India in Himmat Sahai Sing v. Llewhellen,2 although it may benoted that that case might have been decided on another ground,as explained on page 491 of the report. It has also been followed inanother case in India, viz., the case of Baboo Meah v. Zumeerood-deen,3 referred to in Bose’s Digest, vol. 2, page 3921. It has, more-over, been followed in our own Colony in the recent case of KiriBanda v. Marikar.* That case proceeded expressly upon theprinciple which I have above referred to, and even if we disagreedwith that case, we should be bound by it. I see, however, no reasonto disagree with it. On the contrary, I regard with great satisfactionthe fact that equitable means have been discovered which enablethis Court to do justice in cases which might otherwise be coveredby the rigorous terms of section 92, and where in equity theserigorous terms ought not to apply. What are the facts in this case ?The plaintiff comes into Court and says, with reference to a parti-cular sentence in the deed—a sentence which states the amount of
1 (1868) 12 Indian Appeals 157.» (1885) I. L. B. 11 Cal. 486
» (1865) I. L. B. 5 Cal. 158.* (1917) 20 N. L. B. 123.
( 42 )
1918.
Bbbxbah
CJ.
Nadaraja v.Ramalingam
the consideration, and also recites that the consideration has alreadybeen paid—“ I wish to repudiate that statement that the considera-tion was paid, but I insist on holding the defendant to his statementof the amount, although he asserts that this amount, like thestatement of the payment, was fictitious. ” Clearly, on the face ofit, that would be inequitable. Clearly also this is a position whichthe rule I have above referred to definitely covers. The question is,on what basis do we apply that rule in this Colony ? In my opinionthe application of that rule in this Colony is justified by the firstproviso to section 92.' Under that proviso any fact may be provedwhich would entitle any person to any order relating thereto, suchas fraud or certain other things therein enumerated. That proviso,therefore, indicates that if any party to the suit can plead any suchground as those enumerated he will be entitled to relief. What is theproviso intended to comprise ? Two answers may, in my opinion,be given to that question: one of a general nature, and the otherof a particular nature.
In the first place, considering them generally, the circumstancesthere referred to (though some of them are what would be known inEngland as “ common law defences ”) are defences of an equitablenature. Fraud, intimidation, mistake of fact or law, are alldefences of this nature. The words “ such as ” are an indicationthat the enumeration is not exhaustive. I . am disposed to thinkthat read in connection with section 100 they indicate an intentionto comprise any recognized ground on which in a Court adminis-tering equitable principles a person in such a case would be entitled'to relief. On this interpretation this proviso justifies the applica-tion in this Colony of the equitable principle to which I havereferred above.
Moreover, the whole basis of the claim put forward by Mr. Hayleyis an equitable one. It is one which the Courts of common law inEngland would not allow. The case he has cited to us, Wilson v.Keating,1 clearly indicates that, under the English law,/it was onlyequity which allowed any person to come into Court and contradictthe terms of a deed by which he was bound, and to assert that theconsideration which the deed alleged to have been paid, was in factnot paid. The principle of English equity was that he who soughtequity must do it. In this case the plaintiff comes into Courtrepudiating a statement with regard to the payment of the con-sideration, and if he is allowed to put that forward, he ought alsoto suffer the person whom he attacks to show the real nature ofthe transaction.
N
In'the second place, apart from this general view of the effectof the priviso, accepting, as I do personally; the statement of thedefendant that the document was wrongly drawn up without hisknowledge, and that, when he drew attention to the fact he was put
» (1859) 27 Beav. 121.
( 43 )
off from taking an; action by the assurance of the plaintiff thatnothing would happen to him, because the receipt of the con-sideration was admitted in full, I am of opinion that this, thoughnot perhaps actual fraud, was in the nature of fraud, and would becovered by the words “ such as fraud ” in the proviso. I think thatthose facts would have constituted a particular ground of equitablerelief entitling the defendant to an order within the meaning of theproviso.
For these reasons, I am of opinion that, both on the facts and onthe law, tiie defendant is entitled to a verdict, and that the appealshould be dismissed, with costs.
1918.
Bbbxbax
C.J.
Nadaraja v.Ramalingam
Ennis J-—
I see no sufficient reason to interfere with the finding of fact ofthe learned District Judge, and on the question of law raised onthe appeal, I agree with my Lord' the Chief Justice.
Appeal dismissed.