JUDGMENTBY: PRETHEROE, AG CJ

In this case the plaintiff sought a declaration that the defendant held 14/64 interest in the estate of M. Shaik Adam (deceased) in trust for the plaintiff. After hearing the arguments the Court dismissed the appeal and stated that its reasons would be given later. Three witnesses gave evidence to the effect that defendants late husband bought a plot of land for $ 400 and that "it was his intention to hand it back to the widow at some future date". The learned trial Judge found as follows:--

"In the first place I consider it most likely that defendants husband

did intend when he purchased the share in the estate to do something

for the plaintiff and her children, even perhaps as understood by Mr.

Peace, to the extent of ultimately handing it back to the plaintiff."

Mr. Mahendran, for the appellant, argued that on this finding of fact the learned Judge should have found that the existence of the trust was proved. We were unable to accept this submission. The learned Judge merely found as a fact that the defendants husband had expressed a certain intention; he also found as a fact that no trust had been created. We agree with the learned Judge as it is necessary that clear and unequivocal language must be used to establish a trust. This fact is set out clearly at page 161 of Hanburys Modern Equity as follows:--

"The cases we have discussed all demonstrate the important rule, that,

if it be proposed to make oneself a trustee, ones intention must be

shown in unequivocal language -- practically the words "I am trustee",

or a synonym for such declaration, must be used."

In Po Kin & Anor v Po Shein AIR (1926) PC 77 the learned Lord Chancellor said as follows:--

"But on the other side there are also some most important facts. To

begin with, and this no doubt is the most important of all, all this

property stood in the name of the deceased; and on some of the

documents it is stated that the deceased (apparently the deceased in

person) paid the money. Of course the burden is on the appellant to

displace the natural inference to be drawn from that fact. The burden

is no doubt a difficult one to discharge, because in all these

benamidar transactions the very object of the parties is secrecy; but

still the person who alleges that property conveyed to another belongs

to him must prove his allegation and prove it beyond reasonable doubt."

In this case there was insufficient evidence to displace the natural inference to be drawn from the fact that the late Mr. Seenivasagam bought the land and had it transferred to himself. The appellant, therefore, had not discharged the burden placed upon him and consequently the appeal was dismissed. The order of the lower Court is affirmed and respondent will have the costs of this appeal. The deposit of $ 500 will be paid out to respondent against her costs.

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