Perera V. Fernando

Present: Ennis J. and De Sampayo A.J.

PERERA v. FERNANDO.

348-349-D. C. Chilaw, 4,942.

Trust-Evidence-Oral evidence to prove that a deed of sale was in reality a mortgage-Evidence Ordinance, 8. 92,

Where a person transferred a land to another by a notarial deed, purporting on the face of it to sell the land, it is not open to the transferor to prove by oral evidence that the transaction was in reality a mortgage, and that the transferee agreed to re-convey the property on payment of the money advanced.

The admission of oral evidence to vary the deed of sale is in contravention of section 92 of the Evidence Ordinance.

The agreement to re-sell is not a trust, but is a pure contract for the purchase and sale of immovable property.

THE facts are fully set out in the judgment of De Sampayo A.J,

348.-Bawa, K.C. (with him F. R, Dias), for first defendant, appellant.

Samarawickreme, for respondent.

349.-A. St. V. Jayawardene, for appellant.

A. Drieberg (with him G. Koch), for respondent.

Cur. adv. vult.

November 6, 1914. Ennis J.-

In this case the plaintiff by deed No. 89 of December 17, 1906, conveyed to one Diego Perera certain lands. Diego Perera died some three years ago, and his widow and executrix, the first defendant, sold the land to the second defendant. The plaintiff sought a re-conveyance of the land from the second defendant on the ground that the first defendant held it in trust. The learned District Judge ordered the second defendant to execute a conveyance to the plaintiff on payment by the plaintiff of the sum of Rs. 1,540.38 into Court, From this decree both defendants appeal.

In order to prove the trust oral evidence was admitted, and the admissibility of this evidence is the first question on the appeal. So far as I have been able to follow the argument of the plaintiff-respondent, this evidence is to show that the parties to the deed No. 89 were in the relationship of borrower and lender, and that the lands were really conveyed by way of mortgage. Such evidence, in my opinion, comes within the direct prohibition of section 92 of the Evidence Ordinance; it is oral evidence to show that the transaction was other than that disclosed by the deed and to contradict-the deed. It was then urged that it would be admissible under the second proviso to section 92, but evidence of a separate oral agreement under that proviso is only admissible when it is not inconsistent with the terms of the deed. Neither of these contentions give any ground, in my opinion, for the admission of the oral evidence. The deed purports to be a conveyance on sale, not a mortgage, and it is not alleged that Diego Perera did not use his own money, or that he acted as agent for another, or that he acted fraudulently, or any of the grounds upon which in Ceylon (Somasunderam Chetty v. Todd; 1 Pronchihamy v. Don Davith; 2 D. C. Jaffna, 7,409) oral evidence is admissible to prove a trust not inconsistent with the deed.

I would set aside the decree and dismiss the plaintiff's action with costs.

De SAMPAYO A.J.-

The plaintiff, who was the owner of four lands, was indebted in the sum of Rs. 2,500 on a mortgage decree entered against him in respect of three of the lands, and in the sum of Rs. 1,000 on a usufructuary mortgage of the fourth land called Nittullagahawatta. By deed, dated December 27, 1906, he transferred the four lands to one Diego Perera for the sum of Rs. 3,500, of which Rs. 2,500 was paid by Diego Perera in satisfaction of the mortgage decree, and the balance Rs. 1,000 was retained by him to be paid to the usufructuary mortgagee, Diego Perera having died, the first defendant who is his widow and the executrix of his will, sold the land called Nittulla gahawatta to the second defendant by deed dated June 27, 1913. The plaintiff's case Is that, although the transfer to Diego Perera was in form an absolute sale, it was executed on an agreement between them that Diego Perera should adva

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