DE ZILVA v. CASSIM.

DE ZILVA v. CASSIM.

D. C, Colombo, 11,74,7.

Fraud-Resulting trust-Colourable assignment-Right of assignor to cancel deed for failure of consideration-Letters of administration to estates of persons dead before the passing of the Civil Procedure Code.

    No man can set up his own fraud to avoid his own deed.

    But where the purpose for which an assignment is made is not carried into execution and nothing done under it, the mere intention to - effect an illegal object, when the assignment is executed, does sot deprive the assignor of his right to recover the property from the assignee who has given no consideration for it.

    It is not sufficient to prove that there was some sort of a tenant* (confidential) transaction between the assignor and the assignee, as the result of which the assignee did not pay the whole consideration for his purchase. There must be proof that no consideration was paid for it.

    Persons who engage in transactions involving a resulting trust must not expect the assistance of courts to extricate them from the difficulties in which their own improbity has placed them.

    The rigors of section 247 of the Civil Procedure Code do not apply to the case of persons who had died before the passing of the Civil Procedure Code (1889).

    THE plaintiffs prayed for a declaration of title for themselves and their co-owners in regard to a house, and they prayed also that it be sold under the provisions of the Partition Ordinance.

    The house belonged originally to the estate of the late Dr. Misso and his wife, whose will directed that their joint estate be divided into nine equal parts among their children and grandchildren specially named in the will. The devisees so named were to enjoy their shares during their natural lives, and after their deaths their shares were to be divided equally amongst their children. One of the nine original devisees was a daughter named Sophia Dorothea Kelaart, and the house in question fell to her share. The executors did not convey to the heirs their several portions, but in a partition case No. 53,924 this property and some others were directed by the court to be sold in 1869. Sophia Dorothea Kelaart purchased it, subject to the conditions of the will, and possessed it till her death in 1883. She had eight children, all now dead, and the parties before the Court were the descendants of those children and purchasers from some of them.

    One of the eight children of Sophia Dorothea was Francis, who survived his mother. In 1884 he sold his interest in the house to one K. David Perera by deed marked P 7. Francis died in 1887, leaving a widow (the second added defendant) and two

children (the third and fifth added defendants). K. David Perera, died in 1895, having by his last will appointed certain executors, who, as the third, fourth, and fifth plaintiffs in the case, claimed Francis's one-eighth share.

    Francis's widow, Priscilla, impeached the validity of deed P 7 on the ground that it was not intended by her husband to be a valid conveyance, but that it was executed in collusion with David Perera, without any consideration, for the purpose of avoiding a seizure in execution by a creditor. She deposed that after the signing of the deed her husband joined with the other co-owners in collecting the rents, and that after his death in 1887 she lived in a part of the premises for several years, and exercised rights of ownership over her share by leasing it, &c.

    The Additional District Judge (Mr. Felix Dias) upheld the deed, as it showed good consideration on the face of it and as the notary swore that the vendor had acknowledged to him to have received the full consideration of Rs. 1,000 before signing the deed.

    The claim of Priscilla (the second added defendant) and her children (the third and fifth added defendants) and the husband of the third added defendant to an undivided one-ei

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