Thomas Et Al., V. Fernando

1956 Present : Weerasooriya, J., and Sansoni, J.

D. THOMAS et al., Appellants, and D. R. FERNANDO,
Respondent

S. C. 190-D. C. Colombo, 6,646/L

Evidence Ordinance, s. 92-Deed of sale-Parol evidence to contradict its terms relating to the consideration-Admissibility.

The consideration is an essential term in a contract of sale. Section 92 of the Evidence Ordinance debars a party to the deed of sale from adducing parol evidence to prove that the consideration for the deed was not money and therefore the deed was not a sale but represented an entirely different transaction.

APPEAL from a judgment of the District Court, Colombo.

H. A. Koattegoda, with P. Ranasinghe, for the defendants appellants.

C. V. Ranawake, with C. Wickremenayake, for the plaintiff respondent.

Cur. adv. vult.

February 3, 1956. SANSONI, J.-

The plaintiff sued three defendants in this action for a declaration of title to four lands, damages for alleged wrongful possession of those lands by the defendants, and for ejectment. He based his claim on a deed dated 23rd February 1952 by which their owner Venjo Fernando conveyed them to him. That deed purports to be a deed of sale by Venjo Fernando to the plaintiff for a consideration of Rs. 3,000. The defendants by their first answer pleaded that the plaintiff had procured the execution of this deed by fraud and undue influence, without paying Venjo Fernando any part of the consideration, and they claimed that no title passed to the plaintiff. They further pleaded that when Venjo Fernando died on 26th February, 1952, her title passed to her grandson and sole heir, the 1st defendant. By an amended answer they claimed alternatively that as the consideration of Rs. 3,000 had not been paid by the plaintiff to Venjo Fernando, the plaintiff was liable to pay that sum to the 1st defendant in the event of the Court holding that the plaintiff was entitled to the lands in dispute.

When the trial began the defendants' Counsel stated that as he had insufficient evidence to establish the pleas of fraud and undue influence, he rested his case only on the claim for the payment of the consideration as set out in the amended answer. The plaintiff's Counsel then suggested the following issues :-

1. Was there consideration for the deed in question ?

2. Damages (damages agreed upon at Rs. 25 a month).

The defendants' Counsel then suggested :

3. Was the consideration of Rs. 3,000 mentioned in the deed 1458 of 23rd February 1952 paid to Venjo Fernando ?

4. If not, is the plaintiff liable to pay the said sum to the 1st defendant ? The plaintiff's Counsel finally suggested :

5. Even if issue (4) is answered in the affirmative, can the minor claim this money in this case ?

The notary who attested the deed was called as a witness for the plaintiff. It then became clear that Venjo Fernando executed this deed without any prior agreement between her and the plaintiff that he should buy, or that she should sell, the lands. The consideration of Rs. 3,000 seems to have been fixed by the notary because a figure had to be mentioned for the purpose of stamping the deed. The plaintiff was not present when the deed was executed, nor had he given any earlier instructions to the notary to prepare the deed. The plaintiff also gave evidence, in the course of which he said : " I knew Venjo was going to transfer the properties to me. I did not know whether she was going to sell or gift the lands to me. She only told me that the lands would be written in my name ".

In view of this evidence the learned District Judge took the view that although the deed purported to be a deed of sale the transfer was not in fact a sale. He held that it was a donation and accordingly gave judgment for the plaintiff and dismissed the defendants' claim in reconvention. The defendants have appealed.

It was in the light of the evidence of the notary that the learned Judge analysed the transa

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