1944 Present: Howard C.J. and Wijeyewardene J.

MOLAGODA, Appellant, and MOLAGODA, Respondent.

4-D. C. Kandy, 1,129.

Sale-Action to recover purchase price-Recital in deed that money was received- Defendant's plea that sale was, in fact, a gift.

When the plaintiff sued the defendant to recover the consideration due on a deed of transfer of property, which contained an express recital " that-the transferor had received the purchase price in full",-

Held, that it was open to the defendant to prove by oral evidence that the deed of transfer was, in fact; a deed of gift. .

PLAINTIFF, as administrator of the estate of one Kambuwatawana sued the defendant to recover a sum of Rs. 1,600. By deed P 1 of August 9, 1940, Kambuwatawana conveyed certain lands to defendant for Rs. 2,000. Plaintiff instituted this action to recover the consideration due on the deed but claimed only a sum of Rs. 1,600 giving credit to the defendant for a sum of Rs. 400 due to him as an heir of the estate. The defendant pleaded that deed P 1, was in reality a deed of gift. The learned District Judge held that the defendant was debarred from relying on oral evidence to prove that the deed of transfer .was in fact a deed of gift and gave judgment for the plaintiff.

N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for the , defendant, appellant.-This case comes within the principle discussed in Belgaswatte v. Ukkubanda et al.[1 (1942) 43 N.L.R.281]. The deed P 1 recites that the vendor received consideration. The plaintiff, however, as administrator of the deceased vendor, now takes up the position that no consideration passed. It is open, therefore, to the defendant to establish by parol evidence that P 1 was in reality a deed of gift executed in his favour for " love and affection". See Nadaraja et al. v. Ramalingam [2 (1918) 21 N.L.R.38.] ; Kiri Banda v. Marikar [3 (1917) 20 N.L.R. 123.]

C. E. S. Pereira (with him S. P. Wijewickreme), for the plaintiff, respondent.-Document P 1 is obviously a deed of sale of immovable property. On a proper reading of section 92 of the Evidence Ordinance and its provisos (1) and (2) oral evidence is not admissible to contradict P 1 and change its character into one of gift. The plaintiff is not seeking in this action to invalidate the document. Velan Alvan v. Ponny et al. [4 (1939) 41 N.L.R.106.] is in point. See also South v. Koelman [5 (1930) 11 C.L.Rec.64] and Mohamadu v. Pathumah. el al. [6 (1930) 11. C. L. Rec. 48.]

Cur. adv. vult

September 28, 1944. WIJEYEWARDENE J.-

This is an action by the plaintiff-respondent as administrator of the intestate estate of one Kambuwatawana to recover a sum of Rs. 1,600 from the defendant-appellant.

By deed P 1 of August 9, 1940, Kambuwatawana conveyed certain lands to the defendant for Rs. 2,000. He died shortly afterwards leaving as his heirs five children including the plaintiff and the defendant.

The plaintiff instituted this action alleging that the defendant failed to pay the sum of Rs. 2,000 due as consideration on transfer P 1.

The plaintiff claimed only a sum of Rs. 1,600, as he was prepared to give credit to the defendant for Rs. 400 as the one-fifth share due to the defendant as an heir of the estate of Kambuwatawana.

The defendant filed answer pleading that no sum was due to the plaintiff, as the deed P 1 was, in reality, a deed of gift executed by Kambuwatawana for " love and affection ".

The District Judge held on the evidence that there was no money consideration for the deed P 1 but gave judgment for the plaintiff on the ground that the defendant was debarred by section 92 of the Evidence Ordinance from relying on oral evidence to prove that the deed of transfer P 1 was, in fact, a deed of gift.

The deed P 1 is in form a deed of sale by which the property was sold to the defendant for Rs. 2,000. In fact, the deed contains a warranty clause by which Kabuwatawana undertook to compen