Velan Alvan V. Ponny Et Al.,

1939     Present: Keuneman and de Kretser JJ.

VELAN ALVAN v. PONNY et al.

 343-D. C. Jaffna, 11.091. 

Tesawalamai-Sale of property by one spouse to another-Tediatetam- Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911, s. 19 (a)-Consideration in a deed-Oral evidence to contradict terms of document-When allowed-Evidence Ordinance, s. 92.

Property acquired by one spouse from the other for valuable considera­tion is tediatetam property within the meaning of section 19 (a) of the Jaffna Matrimonial Rights Ordinance, No. 1 of 1911.

Oral evidence that the consideration in a deed is different to that stated in it cannot be admitted in a case except where the validity of the document is in question or where relief was sought in respect of the document itself.

Oral evidence is not allowed where the effect of the deed comes up for consideration incidentally.

Lunaiha Umma v. Hameed (1 C. W. R. 30) referred to.

APPEAL from a judgment of the District Judge of Jaffna.

N. E. Weerasooria, K.C. (with him S. Subrahamanyam), for plaintiff, appellant.

N. Nadarajah (with him P. S W. Abeywardene), for defendants, respondents.

Cur. adv. vult. 

July 20, 1939. KEUNEMAN J.-

In this case the plaintiff brought action against the defendants (a) for a declaration that he was entitled to an undivided one-eighth share of certain premises. He further prayed (b) that deed P 4, No. 5,016, dated June 1, 1936, executed by the first defendant in favour of the second and third defendants, be declared to have been executed secretly and collusively without notice to the plaintiff and that the same be declared not valid under the law of Tesawalamai., and (c) for an adjudication that the consideration mentioned in the said deed was fictitious con­sideration for the share conveyed and that the market value was only Rs. 540, and (d) for an order on the second and third defendants to convey the share in question to the plaintiff. In substance, the plaintiff as a co-owner claimed the right of pre-emption under the Tesawalamai.

The following issues were framed : -

" (1) Is deed No. 841 of January 23, 1929, supported by valuable consideration?

(2) If not, is the property conveyed tediatetam within the meaning of Ordinance No. 1 of 1911 or is it separate property of the first defendant?

(3) As deed No. 5,016 of June 1, 1936, purports to convey a divided northern half of the entire land, is the present action for pre­emption of an undivided half share or quarter share of the entire land maintainable?

(4) In case plaintiffs succeed in this action, are the defendants entitled to compensation for improvements made? If so, in what amount?

(5) Is deed No. 841 dated January 23, 1929, a deed of sale or a deed of donation?

(6) What is the market value of the share sold by the first defendant to second and third defendants?

(7) What is the share of the land, dealt with by deed No. 5,016 of June, 1936?"

The learned District Judge dismissed the plaintiff's action with costs and the plaintiff appeals.

In his judgment the District

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