OHLMUS v. OHLMUS.

Present : Mr. Justice Wendt and Mr, Justice Grenier.

OHLMUS v. OHLMUS.

D. C., Colombo, 21,828.

Purchase of land in another's name-Parol evidence-Implied or constructive trust-Fraud-Statute of Frauds (Ordinance No. 7 of 1840).

The plaintiff's testator bought a land from the Crown and obtained the grant in the name of the defendant (his mother), who was to hold in trust for the plaintiff's testator, and was to reconvey it to him at his request. The defendant having refused to reconvey the property, the plaintiff instituted this action to vindicate it. It was objected on behalf of the defendant that a trust relating to immovable property could not be proved by parol evidence.

Held (over-ruling the objection), that the plaintiff was entitled to prove the trust by parol evidence.

Gould v. Innasitamby (9 N. L. R. 177) followed.

GRENIER A.J.-Parol evidence is at all times admissible to establish a resulting or constructive trust where a transaction is intended to effect a fraud. It is not necessary that there should be fraud at the very inception of the transaction; it is sufficient if it arises subsequently.

APPEAL from a judgment of the Acting District Judge of Colombo (J. R. Weinman, Esq.)

The facts and arguments sufficiently appear in the judgment of Grenier A.J.

Walter Pereira, K.C., and Bawa, for the defendant, appellant.

Dornhorst, K.C., and H. J. C. Pereira, for the plaintiff, respondent.

Cur. adv. vult.

10th March, 1906. GRENIER A.J.-

This is an action by the plaintiff as the executor of the will of Oscar Oswald Ohlmus to vindicate a house called " St. Cuthbert's " as property belonging to his testator. The defendant is the mother of the testator, and asserted title to the house on a grant dated the 19th November, 1892, which she held from the Crown. The case for the plaintiff was that the land ON. which the house was subsequently erected was purchased by the testator for his own benefit and with moneys belonging to himself, and that the grant was obtained by him in the name of the defendant, who was to hold the said land in trust for the testator and reconvey the same to him at.

his request. It was also alleged by the plaintiff that his testator entered into possession of the land and improved the same by erecting thereon at his own cost and expense a substantial dwelling-house now standing on it and known as "St. Cuthbert's." The plaintiff further averred that his testator had obtained a title by prescription to the said house and land.

The substantial issues which were tried in the Court below were: - (1) Was the land in question bought by the plaintiff's testator in the name of the defendant to be held by her in trust for him ?

(2) Did plaintiff's testator acquire a prescriptive title to the land ?

(3) Did the defendant acquire a prescriptive title to the land ?

 These were the issues that arose on the pleading, and which were agreed to by counsel on Both sides. After plaintiff's counsel had opened his case and was about to call his first witness the defendant's counsel proposed the following issue: -

Can the plaintiff, not having a notarial instrument, prove a trust by parol evidence ?

Counsel for the plaintiff rightly objected to this issue as it did not arise on the pleadings, but the learned District Judge accepted it and has adjudicated upon it, although all that the defendant averred in her answer was that her son, being desirous of making a gift to her and provision for her, purchased the land and caused the grant to be made in her favour, and having erected the house thereon placed her in possession of it to be held by her as her own property and not in trust for him. There was no indication in the answer of any desire on the part of the defendant to raise any question of law, such as was suggested by her counsel at the trial, but as the issue has been accepted and dealt with by the District Judge, I think it right that we should deal

Click Here to Read the rest of this document