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PEIRIS AND ANOTHER
vs
SIRIPALA

COURT OF APPEAL
RANJITH SILVA. J
SALAM. J
CA49/2001(F)
DC HOMAGAMA 1798/CD
FEBRUARY 2, 2009
MAY 6, 21, 2009

Declaration - Deed void -fraudulent - Civil Procedure Code Section 35(1) -Joining of causes of action without leave of Court-Fraud alleged-Corroboration necessary?-Burden of proving fraud-Beyond reasonable doubt or balance of probability? Non est factum?

The plaintiff-respondent instituted action seeking a declaration that the deed of transfer 4881 - be declared void on the basis that the defendant-appellants have unlawfully and fraudulently manipulated the transfer of the entire land to the Is1 appellant. The trial Judge held in favour of the plaintiff-respondent.

It was contended by the defendant-appellant that the cause of action to have the impugned deed declared null and void cannot be joined with a cause of action for a declaration of title to the immovable property without leave of Court first had and obtained.

Held:

(1) The plaintiff respondent in the issues raised had confined himself to have the impugned deed set aside and had not proceeded to raise an issue with regard to declaration of title. Once issues are raised and accepted by Court the case goes to those issues raised.

Even if the respondent had formulated issues on both causes of action, such procedure is perfectly in order. The law permits one to adopt such a cause and is not repugnant to Section 35(1}. There is no misjoinder as there is in reality only one cause of action. A prayer for invalidation of a deed is consequential to a prayer for declaration of title.

Held further:

(2) Corroboration is not the sine quo non in matters where fraud is alleged.

Per Ranjith Silva, J.

"In Roman Law fraud is defined as omnis calliditas, fallacia, machination, adtircumveniendum, alterem adhibita meaning any craft deceit or machination used to circumvent deceive or ensnare another person, an alienation alleged to be in fraud of creditors is voidable, it is valid till it is set aside".

(3) The standard of proof remains on a balance of probability although the more serious the imputation the stricter is the proof which is required.

(5i The defendant-appellants and a witness gave uncontroverted evidence on behalf of the appellants with regard to the circumstances under which the impugned deed was executed. The evidence is insufficient to prove fraudulent misrepresentation or undue influence. The evidence is insufficient to show that the plaintiff-respondent was tricked or gypped by the appellants to execute the impugned deed-it appears that the trial Judge had been obnoxious to those important facts.

APPEAL from the judgment of the District Court of Homagama.

Cases referred to:-

1. Godamune Punnakithtthi Them vs. Thelulle Narada Thero - CA 65/90- De 1418/L

2. Dharmasiri vs. Wickrematunge 2002 2 Sri LR 218

3. Fernando vs. Lakshman Perera 2002 2 Sri LR at 413

4. Haramanis vs. Haramanis 10 NLR 332

5. Madar Saibo vs. Sirajudeen 17 NLR 97

6. Yousfvs. Rajaratnam (1970) 74 NLR at 9

7. Associated Battery Manufacturers Ltd vs. United Engineering Workers Union 1975 - 77 NLR 541 at 544

8. Foster vs. Mackennon 1896 LR 4. CP 704

9. LuuAs vs. Clay - (1898) 67 LJQ 224

Ranjan Suwandaratne for appellant.

Nihal Jayamanne PC for respondent.

cur.adv.vult

June 18, 2009

RANJITH SILVA. J.

The Plaintiff Respondent (hereinafter referred to as the Respondent) instituted action bearing number 1978/ CD in the District Court of Homagama, against the 1st and the 2nd Defendant Appellants (hereinafter referred to as the Appellants) seeking inter alia for a declaration that the deed of transfer bearing number 4881 marked as P2 be declared void on the basis that the Appellants have unlawfully and fraudulently manipulated the transfer of the entire land to the first Appellant. After trial the Learned District Judge by his judgment dated 0

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