Mahinda Samayawardhena, J.

Introduction The plaintiff filed this action in the District Court of Kegalle seeking a declaration that he is the owner of the immovable property described in the schedule to the plaint by deed No. 6165 marked P2, ejectment of the defendant therefrom and damages. The defendant, who was the transferor of the property by deed P2 to the plaintiff, filed answer seeking dismissal of the plaintiff’s action and a declaration that the plaintiff is holding the property by deed P2 in trust for the defendant. In the alternative, the defendant prayed that deed P2 be set aside on the ground of laesio enormis. After trial, the District Court entered judgment for the plaintiff. On appeal, the High Court affirmed the said judgment.

Hence this appeal by the defendant to this Court.

This Court granted leave to appeal on the question of law whether the District Court and the High Court erred in deciding that there was no evidence to prove that the defendant did not intend to part with the beneficial interest in the property when deed P2 was executed. On behalf of the plaintiff, a purported consequential question of law was raised to say that the defendant cannot raise trust and laesio enormis in the same action. In my view, the latter cannot be a consequential question since this Court did not grant leave to appeal to the defendant on the question of laesio enormis.

Constructive trust The only question for decision in this appeal is whether deed P2 is an outright transfer or a transfer effected subject to a constructive trust.

A constructive trust is largely an equitable remedy for the benefit of the rightful owner of the property against the person holding the legal right to the property in an inequitable and unconscionable manner. Unlike in an express trust, in the case of a constructive trust, the intention of the parties is not apparent. Section 3(p) of the Trusts Ordinance, No. 9 of 1917 defining express trust states “express trust means a trust that is created by the author of the trust generally in the form of an instrument in writing with certainty indicating the intention of the trust, but does not include a constructive trust or a de facto trust, whether charitable or not”.

Chapter IX of the Trusts Ordinance (sections 82-98) deals with categories of constructive trusts. What is relevant in the instant case is the category described under section 83 of the Trusts Ordinance, which runs as follows:

Where the owner of property transfers or bequeaths it, and it cannot reasonably be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative.

If it can be inferred by Court, as stated in section 83, from “the attendant circumstances” (the circumstances which precede or follow the transfer) that the owner did not intend to dispose of the beneficial interest in the property when he transferred the legal interest to the transferee, an obligation in the nature of a constructive trust is considered to have been created. However, there is no general principle to determine “the attendant circumstances” on which a constructive trust can be held to have been established. Whether or not a constructive trust has been created is a question of fact. As the term “constructive trust” denotes, the Court construes that the defendant should be treated as the trustee of the property. In Carl Zeiss Stiftung v. Herbert Smith (No 2) [1969] 2 Ch 276 (CA), Edmund-Davies L.J. stated “English Law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague so as not to restrict the court by technicalities in deciding what the justice of a particular case might demand.” The onus of proof of a constructive trust is on the person who claims such a trust. The test is objective as opposed to subjective (De Silva v. Silva (1