1930 Present: Dalton S.P.J. and Maartensz J.

UDALAGAMA v. TIKIRl BANDA.

453-D. C. Kegalla, 8,406.

Deed of gift-Action to set aside-Fraud and undue influence-Good faith of transaction-Burden of proof-Ordinance No. 14 of 1895, s. 111.

Plaintiff, an old man on his sick bed, signified to the defendant his desire to make over to the defendant and his sister (stepchildren of the plaintiff) certain properties which he had obtained from them. He entrusted the defendant with instructions to a notary to prepare deeds for the purpose. The defendant deliberately gave wrong instructions so that the deeds were drawn, conveying the properties to himself alone. Plaintiff, on discovering this, refused to sign the deed, whereupon he was induced by the defendant to do so on a verbal promise to carry out plaintiff's wishes.

Held (in an action brought by the plaintiff to set aside the deed), that the onus was on the defendant to prove the good faith of the transaction was an action brought by the plaintiff to set aside two deeds executed by him in favour of the defendant on the ground of intimidation, fraud, and undue influence. The plaintiff died before trial and the action was continued by substituted plaintiff, his executor.

The action was tried on the following among other issues :-

(1) Did the defendant fraudulently or contrary to the instructions of the plaintiff instruct the notary to draw the deeds in his favour only, excluding his sister ?

(2) Did the defendant wrongfully and unlawfully by intimidation, undue influence, or fraud induce the plaintiff to sign the deed by promising to give a half share of the lands to his sister ?

(3) Is the deed of gift revocable ?

The learned District Judge found that the defendant had falsified the instructions which the plaintiff gave him to be conveyed to the notary, but that the plaintiff had discovered the fraud before he signed the deeds. He then held that, as soon as the defendant promised to convey a half share to the sister, the plaintiff signed the deed voluntarily and dismissed the plaintiff's action.

Hayley, K.C. (with him Samarawickreme), for substituted plaintiff, appellant.

R. L. Pereira, K.C. (with him Weerasooriya), for defendant, respondent.

September 16, 1930. DALTON S.P.J.-

The appellant (substituted plaintiff) sought to have two deeds executed by the plaintiff, Tikiri Banda, in favour of the defendant set aside on the ground of fraud, undue influence, and intimidation. On plaintiff's death, a son of Tikiri Kumarihamy, executor of plaintiff, and sister of defendant, was substituted in his place, and is the present appellant.

When the case came originally in June last before this Court counsel on both sides expressed their willingness to see that the intentions of the plaintiff, now dead, in respect of the properties were fully carried out. Those intentions are set out in the order made by the Acting Chief Justice on that occasion, and the appeal stood down for the parties to come together and settle the case on that basis. No settlement has however been come to, and so the appeal must continue.

The facts are as follows :-The original owners of the lands, except one, dealt with in the two deeds were defendant and his sister Tikiri Kumarihamy. The other land they owned jointly with their mother Loku Kumarihamy. Loku Kumarihamy many years ago married plaintiff, and to give him some status in the village these lands were conveyed to him by Loku Kumarihamy and her two children, the defendant and Tikiri Kumarihamy. Loku Kumarihamy thereafter died without further issue, and plaintiff took a mistress named Selohamy, who lived with him for twenty or thirty years up to the time of his death, bearing five children by him

In October, 1927, plaintiff became ill and seems to have anticipated that his death was approaching. He thereupon conveyed various acquired properties to his mistress and illegitimate chi