1932 Present: Garvin S.P.J. and Drieberg J.

FERNANDO v. FERNANDO
 
186-D. C. Kalutara, 14,184.

Trust-Transfer of property to acquire qualification for U. D. C. election- Beneficial interest-Sale in execution against transferee-Claim by transferor.

Where property was transferred to X, who was seeking election as member of an Urban District Council, in order to satisfy a statutory requirement of ownership and the object was fully carried out,-

Held, that the property was liable to be sold in execution of a decree against the legal representative of X.

APPEAL from a judgment of the District Judge of Kalutara.

Rajapakse (with him R. C. Fonseka and Alles), for first defendant, appellant.

Soertsz, for plaintiff, respondent.

August 1,1932. DRIEBERG J.-

The appellant held an assignment of a money decree entered against the second respondent as the legal representative of the late Mr. P. C. F. Goonewardene. The appellant took out execution and seized 18/64 shares

of delgahawatta and 6/16 of the house on it; this was claimed unsuccessfully by the first respondent who brought this action under the provisions of section 247 of the Civil Procedure Code for a declaration that the property was not liable for seizure and sale under the writ against the second respondent and judgment was entered in his favour. The appeal is from this judgment.

Mr. Goonewardene, who was a proctor, became entitled to this property on a conveyance (P 1) of June 7, 1922, from the first respondent who was his trusted clerk for many years. The first respondent says that he conveyed the property under these circumstances. Mr. Goonewardene wished to represent the Walana ward in the Panadura Urban District Council. The Local Government Ordinance, No. 11 of 1920, requires in certain circumstances a property qualification for membership; Mr. Goonewardene lacked this qualification and for this purpose the first respondent transferred this property to him. Mr. Goonewardene in November was returned as member for the Walana ward after a contest. He says there was no consideration for the transfer, but the deed recites the consideration for the sale as Rs. 2,000 and the notary certified that the consideration was acknowledged to have been received previously. Mr. Goonewardene died in February, 1923, having a few days before his death made a will leaving all his property to his wife, the second respondent. The appellant was an attesting witness to the will: the will gave no directions regarding this property. The tax receipts show Mr. Goonewardene as owner, his name apparently having been so entered after the conveyance to him. These receipts however are produced by the first respondent and there is evidence that he paid the taxes and possessed the land. In this plaint the first respondent alleged that he transferred the land to Mr. Goonewardene in trust to enable him to qualify as a member for this ward and that the second respondent fraudulently refused to retransfer the land to him. In addition to the usual prayer of an action under section 247 he prayed that the deed of transfer be " declared to have been executed in trust and therefore null and void ".

The issues tried were (1) Was the deed of transfer No. 105 of June 7, 1922, executed without consideration and in circumstances which made Mr. Goonewardene a trustee for the plaintiff ? (2) Did Mr. Goonewardene hold the property in trust for the plaintiff ? The first respondent appears to rely on a constructive trust arising from the circumstances under which the transfer was made-the absence of consideration, his remaining in possession and paying the taxes, and his acquiring after P 1 other shares in this land (these shares were bought in his wife's name in 1926). It is not his case that there was a declared trust. He does not say that Mr. Goonewardene undertook to reconvey the land to him. He seeks apparently to bring the transaction