Pronchihamy V. Don Davit

Present: Middleton J. and Grenier J.

PRONCHIHAMY v. DON DAVIT.

280-D. C. Tangalla. 1,074.

Action by wife to have deed of conveyance executed by her in favour of husband set aside on the ground of fraud-No fraud proved-Resulting trust-A trust to re-convey-Ordinance No. 7 of 1840, s. 2.

Plaintiff sued her husband, the defendant, for the cancellation of a deed of conveyance of land executed by her in favour of the defendant, alleging that the defendant had fraudulently induced her to execute the deed.

Held (on the facts), that there was no evidence of fraud.

Middleton J.-An English Court might find, even without fraud being proved, that a resulting trust had arisen, to which effect might be given in spite of the Statute of Frauds; but I doubt if under our Statute a Ceylon Court would be able to give effect to a trust to re-convey in the face of section 2, unless it was proved that the Statute has been used for the purpose of perpetrating a fraud.

Gould v. Innasitamby 1 and Ohlmus v. Ohlmus 2 distinguished.

THE facts appear from the judgment.

Bawa, for defendant, appellant.

Bartholomeusz, for the plaintiff, respondent.

Cur. adv. vult.

1(1904) 9 N. L. R. 177.  

2 (1906) 9 N. L. R. 183.

October 5, 1911. Middleton J.-

This was an action by a wife against her husband to obtain the cancellation of a conveyance by her to her husband in 1906 of 5/48ths of a land and building, which formerly belonged to the defendant's father, and which he had at one time partly purchased and partly inherited from his parents, and having so obtained possession conveyed to one Babun Appu for alleged safe keeping, who conveyed it to the plaintiff. I think the evidence and the inferences to be drawn from it clearly establish that the property was transferred without consideration by the defendant to Babun Appu, by Babun Appu to plaintiff, and by plaintiff again to the defendant.

The ground on which the cancellation is sought now, in conformity with a direction of the Supreme Court for a new trial, is that the plaintiff was fraudulently induced by her husband to execute the deed in question. The learned District Judge has held that there is sufficient evidence to show that defendant fraudulently induced the plaintiff to sign the deed, and gave judgment for the plaintiff.

The defendant has appealed, and for him it is contended that the evidence is not sufficient, and Nedby v. Nedby1 was referred to. For the plaintiff it was argued that the case was exactly on all fours with the facts In re Duke of Marlborough, Davis v. Whitehead,2 and it was sought to apply the doctrine of a resulting trust to re-convey to the plaintiff, on the principle that the Statute of Frauds was not to be used to cover what would amount to a fraud, and the cases of Gould v. Innasitamby3 and Ohlmus v. Ohlmus4 were cited.

Under section 2 of Ordinance No. 7 of 1840 no promise for effecting any transfer. ..of immovable property other than a lease at will or for any period not exceeding one month shall be of force or avail, unless the same shall be in writing and signed by the party making the same, or his agent, and notarially witnessed. The promise here to re-convey, if there was one, was therefore clearly void in law, and the plaintiff can only succeed by showing that there was such fraud in the transaction that she is entitled to give parol evidence to prove the promise, and establish that an implied trust had arisen in her favour to have the property re-conveyed to her. But the evidence to my mind shows clearly that the plaintiff was induced to sign the deed, not because of any promise to re-convey, but because she thought at the time it would enable her husband to borrow money for the purposes of future business on the security of the conveyance in his name, and that at the most, as her son says, the defendant-his father-said he did not mean to mortgage or sell, but only to show he was worth something, and would tra

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