IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Thevarasa Thavamany, Kallady, Uppodai.

Plaintiff SC APPEAL NO: SC/APPEAL/102/2013 SC LA NO: SC/HCCA/LA/421/2011 HCCA NO: EP/HCCA/BC/43/2007 DC BATTICALOA CASE NO: 4609/L/98 Vs.

1. Velapody Maheswaran

2. Pasupathy Rasaletchumy Both of Kallady, Uppodai.

Defendants AND BETWEEN Thevarasa Thavamany, Kallady, Uppodai. Plaintiff-Appellant Vs.

1. Velapody Maheswaran

2. Pasupathy Rasaletchumy Both of Kallady, Uppodai.

Defendant-Respondents AND NOW

1. Velapody Maheswaran

2. Pasupathy Rasaletchumy Both of Kallady, Uppodai.

Defendant-Respondent-Appellants Vs.

Thevarasa Thavamany, Kallady, Uppodai.

Plaintiff-Appellant-Respondent Before: Hon. Justice P. Padman Surasena Hon. Justice A.L. Shiran Gooneratne Hon. Justice Mahinda Samayawardhena Counsel: S. Mandaleswaran with S. Abinaya for the Defendant-

Respondent-Appellants.

N.R. Sivendran with Fihama Hanifa for the Plaintiff-

Appellant-Respondent.

Written Submissions:

By the Defendant-Respondent-Appellants on 10.09.2013 By the Plaintiff-Appellant-Respondent on 21.01.2014 Argued on: 01.04.2024 Decided on: 10.05.2024 Samayawardhena, J.

The plaintiff filed this action in the District Court of Batticaloa on 02.09.1998 against the two defendants seeking declarations that (a) the Deed of Transfer No. 1485 dated 09.10.1994 attested by Abdul Jawath, Notary Public, is null and void as it was executed fraudulently and deceitfully, and (b) that the defendants are holding the property in trust for the plaintiff. The defendants filed answer seeking dismissal of the plaintiff’s action on the basis that the transaction was an outright transfer. While the trial was in progress, the plaintiff also raised an issue that the Deed is invalid by operation of the principle of laesio enormis. After trial, the District Court dismissed the plaintiff’s action. On appeal, the High Court of Civil Appeal set aside the judgment of the District Court and declared that the Deed is null and void. Hence this appeal by the defendants.

It must be observed at the outset that the plaintiff filed the action without clear direction, seeking cancellation of the Deed of Transfer on contradictory legal principles: fraud, constructive trust and laesio enormis.

The whole case depended on facts rather than legal concepts. At the trial, the plaintiff, her mother, and the 1st defendant gave evidence. The trial Judge, before whom evidence was led, did not believe the plaintiff’s version. He accepted the defendant’s version.

The High Court did not appreciate that it had only printed evidence before it and it is not a trial Court. Although the High Court ultimately declared that the Deed is a nullity, it is not clear exactly on what basis – fraud, constructive trust or leisio enormis – the Deed was declared a nullity. The High Court judgment discusses fraud, constructive trust, laesio enormis, undue influence etc. but does not make specific findings on any of those grounds. I must add that there was no issue on undue influence raised in the trial Court, nor has it been raised before the High Court by the plaintiff.

At the commencement of the trial, it was recorded as a formal unqualified admission that “The Deed No. 1485 dated 09.10.1994 and attested by Notary Public A.L. Jawath was executed by the plaintiff.” In view of this admission, the burden was on the plaintiff to prove that the Deed was invalid on any other ground.

By reading the judgment of the High Court it appears to me that the High Court declared that the Deed is a nullity on the basis of fraud.

The story of the plaintiff is that the 1st defendant promised to arrange a marriage between the plaintiff and the 1st defendant’s brother-in-law, with the land in suit being transferred as part of the dowry. However, the marriage arrangement did not materialise, and the plaintiff thinks she was deceived. Hence, the plaintiff seeks the return of the property and is willing to refund the Rs. 25,000 received at the time of executing the Deed.

The