Nadarajah Et Al., V. Kanapathy Et Al.,

1948 Present: Howard C.J. and Nagalingam J.
 
NADARAJAH et al., Appellants, and KANAPATHY et al. Respondents,
 
S. C. 298-D. C. Jaffna, 66.

    Trust-Notarial conveyance of land-Transferee to pay off mortgage debt on land- Oral agreement to hold land in trust till debt was repaid-Is agreement enforceable f-Statute of Frauds-Trusts Ordinance, section 5 (3).
 
By deed P 1, notarially attested, plaintiff's mother since dead and the co-plaintiffs transferred certain lands to the first defendant. These lands were subject to mortgage decrees in favour of the second and third defendants. The consideration for the transfer was the amount due on the decrees. There was an oral agreement between the parties that the first defendant was to re-transfer the lands on payment to him within a reasonable time of the amount due on the mortgage decrees which he had undertaken to settle and that he should hold the land in trust till then
 
Held, that the agreement was enforceable ,at law although it was not notarially attested. To hold otherwise would allow the Statute of Frauds to be used us a protection or vehicle for frauds.
 
Valliyammai Atchi v. Abdul Majeed (1947) 4S N. L. R. 289, followed
 
APPEAL from a judgment of the District Judge, Jaffna.
 
G. Thiagalingam with V. Arulambakun and C. Chettappah, for plaintiffs, appellants.
 
F. A. Hayky, K.C., with T. B. Dissanayake, for first, second and third defendants, respondents.
 
S. J. V. Chelvanayakam, K.C., with P. Navaratnarajaft, for fourth defendant, respondent.

Cur. adv. vult.

January 29, 1948. HOWARD C. J.-.
 
This is an appeal by the plaintiff and co-plaintiffs from a decision of the District Court of Jaffna dismissing their action with costs. The action was instituted by the plaintiff against the defendants praying that the defendants should on the plaintiff depositing Rs. 650 in Court reconvey a certain plot of land called Veeramanpalaiyamuttan on the ground that his mother Nagamma, since dead, had transferred this land and two other lands to the first defendant on trust with an undertaking by him to retransfer the lands to her or her heirs on the payment of Rs. 850 and interest. The plaint further alleged that the first defendant had thereafter transferred the said lands to his daughter the third defendant and

the first and third defendants had in turn fraudulently and collusively and for no consideration transferred them to the fourth defendant in order to deprive the plaintiff of his right to obtain a retransfer. In the alternative the plaintiff asked for judgment against the defendants in the sum of Rs. 1,750 being the difference between the value of the land and the amount due to the first defendant, that being the amount by which the first defendant is alleged to have enriched himself by his fraudulent conduct with the connivance of the second, third and fourth defendants. The second defendant is the husband of the third defendant. The first, second and third defendants by their answer denied that the land was conveyed to the first defendant in trust. They further stated that a half share of the land belonged to one S. Arulampalam and his wife Maheswari and that Arulampalam, Maheswari and Nagamma (who owned the other half) had transferred the land in suit and another land to the first defendant in consideration of the latter undertaking to settle two mortgage decrees which had been entered against Arulampalam and Maheswari. Nagamma joined in, the transfer as the first defendant refused to purchase the lands unless Nagamma's half share was also conveyed to him. The fourth defendant filed a separate answer denying all knowledge of any trust or agreement to retransfer. The fourth defendant further maintained that he was a bona fide purchaser for value having purchased the land on July 18, 1942, from the first, second and third defendants for Rs. 1,300 paid in the presence of the Notary,

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