[FULL BENCH.]

1915. Present  : Wood Renton C.J., Shaw J., and De Sampayo A.J.

LOUIS v. DINGIRI.

447-D. C. Matara, 6,373.

Alienation in fraud of creditors-Action to set aside deed-Facta probanda-Donation by one spouse to another-Subject to donor's debts existing at date of donation only.

In an action to have a deed set aside on the ground that it was an alienation in fraud of creditors, the plaintiff mast prove affirmatively that the alienor intended to defeat the claims of his creditors, that the alienation left him with practically no property nut of which such claims could be met, and that particular creditors, including the creditors impeaching the alienation, had in fact been prevented by it from recovering what was their due.

The provision of section 13 of Ordinance No. 15 of 1876, that gifts by one spouse in favour of the other shall be subject to the debts and engagements of the donating spouse, must be limited (in the absence of faud) to debts and engagements existing at the time of the alienation, and not to" future debts.

THE facts appear from the judgment.

Bawa, K.C., and Dias, for defendants, appeallants.

A. St. V. Jayewardene (with him Canekeratne), for plaintiff, respondent.

The following authorities were cited at the argument:-Laws of England, vol. XV., pp. 87-88, s. 180; McQueen's Husband and Wife, pp. 269, 271, 264, 265; Pereira's Laws of Ceylon, vol. II., p. 661; 1 N. L. R. 131; 4 A. G. B. 160; 4 N. L. R. 81; 2 Leader, pt. II., P. 11; 2 S. C. D. 55; 3 N. L. R. 287; 5 Bal. 32.

Cur. adv. vult.

February 12, 1915. WOOD RENTON C.J.-

The plaintiff is the purchaser, on a Fiscal's transfer dated May 12, 1914, at a sale in execution against the 2nd defendant in case D.C. Matara, No. 5,676. That action was instituted on September 21, 1912. The 2nd defendant had previously, viz., on June 2, 1912, gifted his residing house and land to his wife, the 3rd defendant, and their children. The action D. C. Matara, No. 5,676, was dismissed with costs on the ground that the issue had already been decided against the 2nd defendant in another case, C. R. Matara, No. 5,581, between the same parties. Writ issued for the recovery of costs in D. C. Matara, No. 5,676. The property in

question in the present case was seized in execution of the writ. When the plaintiff, the execution purchaser, went to take possession. the 2nd defendant resisted him, alleging that the property belonged to his wife under the deed of gift of Tune 2, 1912. The plaintiff, therefore, brought this action to have the deed set aside as fraudulent. The learned District Judge has given judgment in his favour, on the grounds, in the first place, that the alienation was fraudulent: and, in the second place, that even if it were not, the property seized was liable for the 2nd defendant's debts under section 13 of the Matrimonial Rights and Inheritance Ordinance, 1876. No. 15 of 1876. The case was referred by my brothers Shaw and De Sampayo to a Bench of three Judges for the consideration of this latter point. At the argument before us, however, counsel for the plaintiff stated that he desired to support, and we gave him the opportunity of supporting, the judgment of the learned District Judge, also on the ground that the donation by the 2nd defendant in favour of hi" wife was fraudulent. The appeal is, in my opinion, entitled to succeed on both grounds. The burden of establishing fraud rested on the plaintiff, and the facta probanda in such a case as this are well settled. It must be shown affirmatively that the alienor intended to defeat the claims of his creditors, that the ailenation left him with practically no property out of which such claims could be met, and that particular creditors, including the creditor impeaching the ailenation, had in fact been prevented by it from recovering what was their due. (Silva v. Mack,1[(1875) 1 N. L. R. 131.] Podi Singho v. Appuhamy.2[(1900) 4 N. L