Penderlan Et Al. V. Penderlan

1948     Present: Dias and Basnayake JJ.

PENDERLAN, et al, Appellants, and PENDERLAN,
Respondent

S. C. 251-252-D. C. Chilaw, 11,937

Evidence-Sale of immovable-Fictitious transaction-No consideration- Oral Evidence-Admissibility-Evidence Ordinance-Section 92.

The prohibition in section 92 of the Evidence Ordinance does not expend to a case where it is sought to prove that the transaction in question was a sham and that an instrument was never intended' to. he acted upon.

APPEAL from a judgment of the District Judge, Chilaw.

S. J. V. Chelvanayakam, K.C., with S. W. Jayasuriya, for the 3rd defendant appellant.

Cyril E. S. Perera, with Christie Seneviratne, for the 1st defendant appellant.

N. E. Weerasooria, K.C., with H. W. Tambiah and K. C. de Silva, for the plaintiff respondent.

Cur. adv. vult.

April 20, 1948. Basnayake J.-

The plaintiff is the sister of the first and second defendants and the sister-in-law of the third defendant. The fourth defendant is a stranger. The plaintiff asks that she be declared entitled to a fibre mill known as " St. Antony's Mills " and that deed No. 925 dated May 15, 1941, attested by H. H. A. Jayawardene, Notary Public, be set aside. The learned District Judge has given judgment for the plaintiff, and the first and third defendants have appealed therefrom to this Court. The learned District Judge has accepted the evidence of the plaintiff and her witnesses and we see no reason to interfere with his finding. According to the facts as proved by the plaintiff, she received by way of gift from her father during his lifetime a land called Makullagahawatte. In 1935 she constructed thereon a fibre mill at a cost of four thousand rupees. The second defendant was placed in charge of the mills. In .1936 the first defendant, having conceived the idea of applying for the post of Vidane Aratchi, asked the plaintiff to transfer to him her land, so that he may have the necessary property qualification, promising to re-transfer it within a month. Deed No. 10,423 of November 19, 1936, attested by M. D. A. S. Gunasekera, Notary Public (exhibit P1), was accordingly executed. The plaintiff's mother, younger brother, and a child adopted by the plaintiff's father, were also parties to it, as they themselves transferred certain lands to the first defendant for the same purpose. The transfer was made in the form of a conveyance for a consideration of Rs. 5,000. Actually no consideration was paid, nor was there any change in possession. The land transferred by the plaintiff was thus described in the schedule:

"The lands called Makulkarandagahawatta and the adjoining Kajugahawatta, situate at Kolinjadiya in Kammal Pattu, Pitigal Korale, Chilaw District of the . North-Western Province, which are together bounded on the north by the garden formerly of Nikulan Fernando and presently of Benedict Fernando and others, east by field, south by village limit belonging to the heirs of Jappu Singho or presently Dombagahawatta belonging to Medarlis Panderlan, west by the garden of Philippu Annavirala and others, containing in extent about eighty-five coconut

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