ABEYGUNASEKARA VS. MALKANTHI AND OTHERS

ABEYGUNASEKARA VS. MALKANTHI AND OTHERS

COURT OF APPEAL
CHITRASIRI, J.
CA 137/98
DC GAMPAHA 31388/L
MAY 6, 2014

Rei Vindication action - Alleged title deed not a Deed of Transfer but a mortgage? Laesio enormis - No proper consideration - Could the deed be declared null and void? Vendor not receiving the real  value - Civil procedure Code Section 545

The Plaintiff Appellant sought to have Judgment declaring that she is entitled to the land in question by virtue of deed pleaded and Deed 1449 (P3). The Defendants contended that P3 is not a Deed of Transfer but a Deed of Mortgage and that P3 should be declared null and void. The Learned District Judge having accepted the position taken up by the defendants dismissed the plaint and revoked the deed but subject to the conditions in the judgment.

Held

(1) The property has been valued at Rs. 114,200/- it was the value of the property in the year during which period the deed P3 had been executed. There is no reason to reject the evidence of the valuer.

(2) It is abundantly clear that no proper consideration had been received by the 2nd Defendant, for the property she alleged to have sold, the value of the property is around six times more than the money received by the 2nd Defendant as the same price when she executed P3. Vendor had not received the real value.

(3) When the title referred to in P3 is bad, the transferee of the deed or his successors will have no title to part with.

Held Further:

(4) Though the Learned District judge has imposed a condition - to pay damages - in the Judgment, no reliefs had been prayed for to have such damages. No evidence is found, to pay such an amount of damages (Rs. 50,000/-). It is erroneous to have awarded damages to pay the Plaintiff by the 2nd Defendant - direction to pay damages by the 2nd Defendnat to the Plaintiff cannot be allowed to stand.

APPEAL from a Judgment of the District Court of Gampaha.

Sumith Senanayake with Damitha Weerakoon for Plaintiff - Appellant.

S.A.D.S. Suraweera for Substituted Defendant Respondents.

10th June 2014

CHITRASIRI, J.

This is an appeal seeking to set aside the judgment dated 27th February 1998 of the learned District Judge of Gampaha. In the petition of appeal, the plaintiff-appellant (hereinafter referred to as the plaintiff) has also sought to have a judgment as prayed for in the plaint dated 17th August 1988.

In that plaint the plaintiff sought to have a judgment declaring that she is entitled to the land morefully described in the schedule to the plaint by virtue of the deeds that she has pleaded including that of the deed bearing No.1449 marked P3 in evidence. The defendants in their answer has averred that the aforesaid deed 1449 marked P3 should not be treated as a deed of transfer but it should be treated as a deed executed in order to secure a loan obtained from one Kingsley Dias. Accordingly, the defendants have prayed that  the said deed 1449, it being one of the deeds which the plaintiff relies on to claim title, be declared null and void.

By the aforesaid judgment, learned District Judge having accepted the position taken up by the defendants. dismissed the plaint and made order revoking the deed 1449 marked P3. However, it is to be made effective subject to the conditions referred to in the said judgment dated 27.02.1998. Conditions so imposed are to pay Rupees Fifty Thousand (Rs. 50,000/-) with interest accrued thereto, to the plaintiff by the 2nd defendant-respondent. (hereinafter referred to as the 2nd defendant) Both Counsel submitted that though the learned District Judge has imposed such a condition in the impugned judgment, no reliefs had been prayed for, to have such damages. Moreover, no reasons are given by the trial judge, for the awarding of damages in that manner. No evidence too, is found to pay such an amount as damages. Therefore, it is erroneous to have awarded damages to pay the plaintiff by the 2nd defendant in

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