NACHIAR v. FERNANDO.

NACHIAR v. FERNANDO.

D.C., Colombo. 10,518.

Duty of judge to frame such issues as will enable him to express his findings on the question's raised-Ordinance No. 7 of 1840-Inadmissibility of oral evidence to establish a resulting trust--Relevancy of evidence as to price of property having been paid by the defendant and not by the person who holds the title deed, to show when adverse possession began-Other exceptions to the Ordinance of Frauds.

Where, in an action rei vindicatio, plaintiff set up a chain of title, and defendant, admitting the execution of the title deeds pleaded by plaintiff, raised inter alia the issues that one of the plaintiff's predecessors in title had bought the property for her out of funds supplied by her, but took the conveyance in his own name, and that she never was the tenant of such predecessor or other subsequent paper title holders,-

Held, that the only issue framed by the Court below as follows- " Has the defendant acquired title to the property in dispute by adverse " and uninterrupted possession for more than ten years previous to the " date of action? "-was too vague to permit the Court to express its findings on the. many questions of fact on which the parties were at variance, or its finding on law as to the effect of those facts.

Held also, that defendant was entitled to prove that she had supplied to plaintiff's predecessors in title the funds necessary for the purchase of the house in question, not for the purpose of setting up title, but only to show the date from which she began her adverse possession.

Per Browne. A. J.-The general purport of the decisions as to what exceptions can be allowed or not to the strict observance of our Statute of Frauds may be summarized as follows: -

(1) When an agreement, being verbal, cannot be enforced, moneys paid thereon for the ulterior objects of the agreement may be recovered as moneys had and received for plaintiff's use or as condictio indebitati.

(2) If a title deed has been obtained by fraud, re-conveyance by the fraudulent holder will be ordered,

(3) If the deed was made in another's name, and the latter has possessed for years and died, and fraud is not proved, plaintiff will not be allowed to say that the property was bought with his money and to vindicate it from the deceased's heirs.

(4) If, on a verbal agreement to purchase jointly, the conveyance was made in defendant's name, and he fraudulently refused to allow plaintiff his share, plaintiff may vindicate his share, and defendant cannot set up the Ordinance.

IN this case the plaintiffs, who are wife and husband, sued the defendant to have the first plaintiff declared the owner of a certain house and ground in Hospital street in the Fort of Colombo and to have the defendant ejected.

In the chain of title pleaded by plaintiffs it appeared that Harmanis Fernando, the husband of the defendant, was the owner of the property in 1860; that he was adjudicated an insolvent in 1870; that his assignee sold it to one Allis Fernando in the same year; that Allis Fernando's right, title, and interest was sold by the Fiscal under a D. C. writ to Mr. J. N. Keith; and that

Mr. Keith sold the property to Mr. Pakir Tamby, who gifted it to his daughter, the first plaintiff.

The defendant admitted the title deeds pleaded by the plaintiffs, but averred that Allis Fernando bought the property in 1870 out of funds supplied by her and for and on her behalf, and that she held possession of the property from and before 1870 by a title adverse to and independent of plaintiffs and their predecessors in title.

The paper title of the plaintiff's being admitted, the District Judge ruled the onus to be on the defendant as regards her title by prescription.

He framed the following issue: Has the defendant acquired a title to the premises in question by adverse and uninterrupted possession for more than ten years previous to the date of action?

He called u

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