Rammenika, W.M. V. Kiri Banda, R.M.

W. M. RAMMENIKA v. R. M. KIRI BANDA.

C. R., Kurunegala, 7,814.

Civil Procedure-Framing of issues-Deed of Conveyance-Consideration other than that recited-Evidence Ordinance, s. 92.

Even where both parties to a deed of transfer of land agree that the consideration was other than that recited, but are at issue as to what it really was, it is not open to the Court to frame an issue on the latter point unless both parties consent.

THE plaintiff, a Kandyan woman, had executed a transfer in favour of her daughter and one Dingirihami, which on its face purported to be a sale of three lands to them in consideration of the sum of Rs. 300 paid to her by them.

She brought the present action for the purpose of having the said transfer cancelled and declared null and void, not on the simple ground that there was a failure of the recited consideration, but that there was no money consideration, and that the real consideration was an undertaking on the part of Dingirihami to register his marriage with the plaintiff's daughter, with whom he had been living, and that, he had failed to register the marriage, and had deserted her daughter, whereby the consideration for the transfer had wholly failed.

Dingirihami answered admitting that there was no money consideration, but not agreeing that the consideration was his promise

to register the marriage. He asserted that the consideration was his love and affection for the plaintiff's daughter, which he had fulfilled by living with her until she drove him away and took another husband, with the connivance of the plaintiff.

The case underwent two trials in the Court below. At the first trial one of the issues agreed to by the proctors for the parties was, " Was the transfer executed in order to induce the first defendant to register his marriage with the second defendant and to continue to live with her as her husband, or was it executed for the latter purpose only?"

At the first trial, on 29th November, 1900, the Commissioner dismissed the plaintiff's claim on an issue framed by himself, viz., " Has the Court jurisdiction, the action being for breach of promise of marriage? " which he decided adversely to the plaintiff. On an appeal by the plaintiff the case was sent back for the trial to be proceeded with.

At the second trial, on 7th November, 1902, fresh issues were not framed by the proctors, but the Court framed the issue, " What was the consideration for the transfer? Was it the undertaking of the first defendant to register his marriage? Or was it his agreement to live with the second defendant as husband and wife? " The first defendant's proctor objected that it was not open to the plaintiff to set up a consideration different from that recited. The Commissioner held that the first defendant might, under section 92 of the Evidence Ordinance, have resisted the attempt to set up a different consideration, but had not done so, and had consented to an inquiry as to what really formed the consideration. He held that the consideration was the registration of the marriage, and that the first defendant had no excuse, but was solely to blame for not registering it, and he gave judgment for the plaintiff.

The first defendant appealed.

F. J. de Saram, for appellant.

Cur. adv. vult.

10th March, 1903. Pereira, A. J.-

This is an action by the plaintiff to have what is called a " transfer deed," executed by her in favour of the two defendants, cancelled. The deed, on the face of it, is a conveyance of certain lands by the plaintiff in favour of the defendants " in consideration of Rs. 300: lawful currency of Ceylon," paid by the defendants to the plaintiff. The plaintiff says that the true consideration of the deed was the first defendant's promise to " register his marriage with the second defendant and to continue to

live with the second defendant as her husband," that the first defendant committed breach of this promise, and henc

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