IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Leave to Appeal under Article 128 of the Constitution read along with Section 5(1) (C) of the High Court of the Provinces (Special Provisions) Act No. 54 of 2006.

Liyana Athukoralalage Indrawathie, 1/418, Madugashandiya, Mandawala.

S.C. Appeal No. 190/2016 Plain SC/HCCA/LA No. 263/2015 WP/HCCA/AV/1206/2011(F) Vs.

D.C. Pugoda Case No. 831/L

1. Galolu Kankanamalage Dharmasena, Mee Ambawatte, Mandawala.

2. Gunarathna Arachchilage Don Linton Gunarathna, No. 208/A, Mahamera Road, Ihala Lunugama, Mandawala. Defendants AND Liyana Athukoralalage Indrawathie, 1/418, Madugashandiya, Mandawala.

Plaintiff-Appellant Vs.

1. Galolu Kankanamalage Dharmasena, Mee Ambawatte, Mandawala.

2. Gunarathna Arachchilage Don Linton Gunarathna, No. 208/A, Mahamera Road, Ihala Lunugama, Mandawala.

Defendant-Respondents AND NOW BETWEEN Liyana Athukoralalage Indrawathie, 1/418, Madugashandiya, Mandawala.

Plaintiff-Appellant-Appellant Vs.

1. Galolu Kankanamalage Dharmasena, Mee Ambawatte, Mandawala.

2. Gunarathna Arachchilage Don Linton Gunarathna, No. 208/A, Mahamera Road, Ihala Lunugama, Mandawala.

Defendant-Respondent-

Respondents Before: Buwaneka Aluwihare, P.C., J.

A. L. Shiran Gooneratne, J.

Janak De Silva, J.

Counsel:

Dr. Sunil Coorey for Plaintiff-Appellant-Appellant Seevali Amitrigala, PC with Pathum Wijepala for Defendant-Respondent-Respondents Written Submissions:

06.02.2017 by the Plaintiff-Appellant-Appellant

09.03.2017, 27.12.2017 and 26.05.2023 by the Defendant-Respondent-Respondent Argued on: 04.05.2023 Decided on: 02.10.2023 Janak De Silva, J.

The Plaintiff-Appellant-Appellant (Plaintiff) owns an undivided 1/3 share of land called Millagahawatta that is about R.2 P.3 in extent. The Appellant, by deed of transfer No. 5858 (P2) dated 14.12.2001 attested by M.A.N.A. Marasinghe, Notary Public, transferred an undivided 20 perches from the said land to the 1^st Defendant- Respondent-Respondent (1^st Defendant). On 27.05.2003, the 1^st Defendant, by deed of transfer No. 105 (P3) attested by G.K. Gunasekera, Notary Public transferred the said portion to the 2nd Defendant-Respondent-Respondent (2nd Defendant).

On 31.07.2006 the Appellant instituted this action against the 1st and 2nd Defendants and sought a declaration that the 1st Defendant held the title to the said land subject to a constructive trust in favour of the Plaintiff, that deed No. 105 (P3) is null and void, or in the alternative that deed No. 5858 (P2) is null and void on the principle of laesio enormis and for the ejectment of the 2^nd Defendant and those holding under him from the land described in the 2^nd schedule to the amended plaint.

The case of the Plaintiff is that she sought a loan from the 1st Defendant in a sum of Rs. 50,000/= as she was in need of money. The 1^st Defendant wanted her to bring a deed and agreed to reconvey the land once the loan was repaid with the interest. Accordingly, she obtained Rs. 40,000/= by executing deed No. 5858 (P2). The Plaintiff had repaid 7 instalments but failed to do so thereafter. The Plaintiff was not in a position to repay the loan when the 1st Defendant demanded repayment. Then the 2nd Defendant agreed to repay the outstanding loan to the 1^st Defendant on behalf of the Plaintiff and accordingly deed No. 105 (P3) was executed. The 2nd Defendant agreed to retransfer the land upon the Plaintiff paying him back the loan with interest.

The versions of the 1^st and 2^nd Defendants are diametrically opposed to the case of the Plaintiff. They claimed that both deeds, i.e. Nos. 5858(P2) and 105(P3) were executed as outright transfers and that there was no agreement to reconvey.

The action was dismissed by the learned District Judge after trial, subject to costs. He primarily proceeded on the basis that deed No. 5858 (P2) was an outright transfer and that there was no express provision to be found, either in deed No. 5858(P2) or in deed No. 105(P3), regarding retransfer