AMARAKOON DEVIKA DIAS VS. SITA HAPUARACHCHI

AMARAKOON DEVIKA DIAS VS. SITA HAPUARACHCHI

COURT OF APPEAL
CHITRASIRI, J
[C.A. 396/98]
[C.A. 396B/98]
MARCH 20, 2014
APRIL 28,30, 2014

Trust Ordinance - Section 83, Section 84, and Section 96 -Constructive Trust - Ingredients necessary - Who could make an application under Section 84 - Could a heir of person who paid the consideration rely on Section 84? Doctrine of advancement? Loco Parentis.

The Plaintiff- Respondent filed action seeking a declaration that the 1st Defendant - Appellant is holding the corpus in trust for her, and the deed whereby the 1st Defendant conveyed the land to the 2nd defendant is of no force or effect in law and the eviction of both.

The claim of the Plaintiff was that the consideration mentioned in the impugned deed was paid by her father.

The 1st defendant denied that the payment was made by the father -the 2nd defendant claimed that he is a bona fide purchaser. The District Court held with the Plaintiff.

On Appeal -

Held:

[1] In order to establish a constructive trust - Section 84 - law requires to prove that the consideration mentioned in the impugned deed had been paid by or provided by a person other than the vendee to a deed of transfer and also that the other person who paid the consideration did not intend to give the beneficial interest to the transferee of the property.

[2] The Plaintiff alleges that the payment was made by the Plaintiff's father and not by the Plaintiff - Section 84 allows only the person who paid the consideration to claim a constructive trust under that section and not by another on his/her behalf.

[3] It is seen that the provisions by winch creation of a constructive trust is permitted do not allow another person than the person who paid or provided the money for the purchase even though there is evidence to show that he has not intended to give up the beneficial interest of same, to apply for a constructive trust in respect of that property.

Held further:

[4] Under the English Law, the doctrine of advancement will not be presumed in favour of more remote relation and a fortiori not of a stranger, though the real purchaser may have placed himself in 'Loco parentis.

[5] Proof of advancement of marriage or any other purpose similar to that of a marriage depends not solely on the basis of the relationship the transferee had with the person who provided the consideration but it is basically on the attendant circumstances of each case, also it is not on the manner in which the parties are related to each other that is to be considered in deciding the purpose for which the consideration was paid.

Per Chitrasiri, J

"It is clear that the Plaintiff has failed to establish that the father paid the consideration for the advancement of her marriage with the 1st Defendant Her oral testimony is not sufficient to establish such a fact."

Held further

[6] In the circumstances of this case - the plaintiff could not claim a constructive trust under Section 96, the residuary section.

APPEAL from the judgment of the District Court of Mt. Lavinia.

Cases referred to:-

(1) Fradd vs. Brown & Co. - 28 NLR 282.
(2) Mahavithana vs. Commissioner of Inland Revenue -64 NLR 217
(3) De Silva vs Seneviratne - 1981 - 2 Sri LR 8.
(4) Alwis vs. Piyasena Fernando- 1993 - 1 Sri LR 119
(5) Daniel vs Arnolis - 30 NLR 247
(6) Mendis and others vs. Parameswari - 62 NLR 302
(7) Jonga vs Nanduwa - 45 NLR 128

Samantha Vitarana with Ravi Jayawardane for 1st Defendant -Appellant in 396A/98.

Ranjan Suwandaratne for Subtitled 2A Defendant - Appellant in 3968/98

Harsha Soza PC for Plaintiff - Respondent

June 06th 2014

CHITRASIRI, J.

Plaintiff- Respondent (hereinafter referred to as the Plaintiff) filed this action in the District Court of Mt. Lavinia seeking among other things, to have a judgment declaring that:

● the plaintiff is the beneficial owner of Lots 7B,15,19 and 9 which are moreful

Click Here to Read the rest of this document