Setuwa Et Al., V. Ukku Et Al.,

1955 Present: Gratiaen J. and Sansoni J.

B.M.G. SETUWA et al ., Appellants, and B.T. UKKU et al,
 Respondents

S. C. 164-D. C. Kandy, 3,219

Sale of immovable property-Contract of re-purchase-Parol evidence of a mortgage- Admissibility-" Moratuwa mortgage "-Evidence Ordinance, s. 92- Trusts Ordinance, s. 5 (3).

It is never open to a party who executes a conveyance which is unambiguously a deed of sale to lead parol evidence to show that in reality it is a deed of mortgage and not of sale. This rule equally applies where there is an agreement in the deed itself whereby the vendee undertakes to retransfer the property for consideration within a specified period and also where there is a separate agreement to the same effect, whether notarial or not.

Per GRATIAEN J.- " The respondent did not rely on any proviso to section 92 of the Evidence Ordinance. Nor did he allege a trust of the kind which section 5 (3) of the Trusts Ordinance permits to be established by oral evidence. In the result, the learned trial Judge should not have admitted evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of

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