DEPARTMENT OF LAW – UNIVERSITY OF JAFFNA

L.LB DEGREE PROGRAMME 2019/2020

LAW OF EQUITY AND TRUST – ALLEC 21044

ASSIGNMNET 01

REGISTRATION NUMBER – 2020/L/097

COMMENT OF THE EXAMINER

……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………...
 IN THE CIVIL APPELLATE COURT OF THE NOTHERN PROVICE
[HOLDEN IN JAFFNA] OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA

An application under section 83 of the

trust ordinance

KALA

PLAINTIFF
DISTRICT COURT CASE NO:
JAFFNA/L/ 009 Vs.
APPEAL NO: 00/00
NAGARAJA

DEFENDANT

AND NOW BETWEEN

KALA

PLAINTIFF – APPELLANT

Vs.

NAGARAJA

DEFENDANT – RESPONDENT

MAY IT PLEASE YOUR HONOUR’S COURT

WRITTEN SUBMISSIONS OF THE PLAINTIFF– APPELANT

(A) Introduction

(1) Since the kala has not been served justice by the district court; she is appealing to the
court of civil appellant to get justice for what happened for her. These written
submission of the appellant (hereinafter referred to as the appellant) are respectfully
tendered to your honours court seeking that this application to your honours court
by the appellant (hereinafter referred to as the appellant) challenging the order of
the learned district court in Jaffna.

(B) IMPORTANT FACTS OF THE CASE AS CONTAINED IN THE PLAINT

(2) it is respectfully submitted that the appellant filed her petition for leave to appeal in
the civil appellant court and the crystallized facts are as follows;

[a] appellants farther gifted a land by virtue deed gift No. 6507 dated 02.03.2020 for
her marriage. the date of her marriage fixed on date 05.02.2021 on her engagement.
groom said, that he expects money as dowry.

[b] As the appellant did nit have enough money, they tried to mortgage their property.
the bank did not want to mortgage the appellant’s farther and her property because
of some security reasons of bank.

[c] The appellant’s farther met the respondent through a broker. The respondent did
not want to mortgage her father’s property. Then respondent agreed to give debt for
appellant’s property by executing a deed of transfer as high security.

[d] The market value of this land was 7 million when going to transfer this property to
respondent. But the appellant wanted only 4 million. with intention of re-execute the
property by settling the debt appellant agreed to respondent’s agreement.

[e] Therefore, the notary said that the appellant was advised to make a conditional
transfer. but the respondent wanted to do a deed transfer. but respondent promised
to guarantee in a letter that to the appellant after settling the debt. then the deed
transfer no.7000 on 01.12.2020 was done in front of the notary and witnesses.

[f] Appellant’s wedding postponed to January 2022. Therefore, she went to settle the
respondent’s debt. however respondent denied to do so as it was the transfer deed.

[g] due to this, appellant filed a case in the district court. but the learned district court
decided in favour of respondent based upon the section 91 and 92 of the evidence
ordinance.
 [h] The Learn civil appellant court delivered Order dated …, dismissing the Appellant’s
district court application.

(C) RESPECTFUL SUBMISSIONS

(3) Appellant has transferred this property through a valid way

section 2 (a) and (b) of the prevention of fraud ordinance also provide that,
“(a) the relevant deed or instrument shall be in writing, signed by every executant and
attested by a notary public before two witnesses present at the same time; and
(b) the left or right thumb impression of every such executant or where both thumbs
of such executant are missing, the impression of any other finger or the toe impression
as the case may be, is affixed above or besides the signature to the original, duplicate
and the protocol of the relevant deed or instrument:”

your honour, according to the section mentioned above, it is very clear that a valid
trust has taken place here. Respondant executed deed of transfer name of
respondent in the presence of witness of Rathnasingham and Jeyam and it was
attested by the M. Periyar notary public.

(4) When this property transfer takes place, a constructive trust has been created here.

Section 83 of the Trust Ordinance states,

“Where the owner of property transfers or bequeaths it, and it cannot reasonably be
inferred consistently with the attendant circumstances that he intended to dispose of
the beneficial interest therein, the transferee or legatee must hold such property for
the benefit of the owner or his legal representative.”
according to the above section, when we examine the attendance circumstances of
this case, it seems that a constructive trust has been established here.

(a) Firstly, appellant requested to Respondent for the debt against this property by
way of executing a mortgage deed. Respondent did not agreed for that. He said
that he wanted this property transfer by way of deed transfer. Then they agreed
to because they needed money quickly. it is clear that they had no intention to sell
this property to Respondent.

(b) Here, appellant assigns her property to respondent through a deed with an
intention of retaking property. The notary M. Periyar advised to kala to execute a
conditional transfer but respondent did not want to go into a conditional transfer,
so he agreed to in a letter that the property would be given back after the debt
was settled.
 Thus, appellant did not have any intention to absolutely transfer this property to
respondent while making this deed transfer because he did not want to go for a
conditional transfer and he agreed to transfer the property again after settled the
debt in a letter.

Perera vs Fernando and Another [2011] 2 SLR 192, Suresh Chandra J enunciated
that, “When an owner of a property transfers it without intention to dispose of
the beneficial interest therein, then a constructive trust is created and transferee
must hold such property in trust for the benefit of the transferor according to the
principles laid down in section 83 of the Trust Ordinance.”
PATRICK PERERA VS LINETTE FERNANDO SC APPEAL 101/16 in this case it was
stated that relief under section 83 of the trust ordinance is available only to a
transferor who has transferred the property to another person.

(c) When appellant did the deed transfer of this property, the market value of this
land was 7 million. but this deed transfer done for 4 million. This was done because
appellant needed that 4 million quickly. if appellant wanted to sell this, she would
not transfer the deed of such valuable land to respondent for as low price as 4
million.

In PREMAWATHI VS GUNAWATHI 1994(2) Sri L.R. 171 case, on the basis of earlier
verbal agreement, the property was intended to be repossessed by paying 6000
LKR within a month, but due to her hospitalisation, it could not be paid on time. it
was held the actual value of the land was 15000 LKR and no intention to exclude
the ownership on the basis of attendance circumstances of this case.

In the case of KARANELIS VS PERERA, the accused owed 5000 LKR and a land was
assigned as security. at the time of transfer, the relevant promise was that the
plaintiff after payment of the debt amount. the court declared that a constructive
had been created.

As L.J.M Cooray points out in his book “Trust”, when a certain property has been
taken over by paying lower than the market value, that person can established a
right to acquire the property under section 83 by pointing out that he did not
intend to dispose of the beneficial ownership of the property by leading special
evidence.

(d) Appellant wedding postponed. Then appellant went to settle the debt and took
back her property in short time period. But it was rejected by respondent. This also
proves that appellant has no intention to sell her property to respondent.
 Your honour, considering all the above attendance circumstances, it is clear that a
constructive trust has been created here according to section 83 of the Trust
Ordinance.

(5) Admissibility Of Parol Evidence

(a) The judgement of the district court was based on section 91 and 92 of the Evidence
Ordinance. according to these sections written evidence is required to vary a deed
or sale in writing and oral promises are not applicable.
but your honour according to the section 92 (1) of the evidence ordinance, if
something like fraud, intimidation has occurred during the preparation of a written
agreement, such as not being properly written and singed, oral evidence can be
submitted by changing some point in the document.
BERNEDETTE VALANGENBERGE VS. HAPPUARACHCHIGE ANTHONY 1990(1) SRI L.R
190, in this case, it was decided that if the transferor can confirm through oral
evidence that the transferee has committed any fraud, section 2 of the prevention of
fraud ordinance or the effect thereof is removed and a constructive trust arises.

(b) section 5(1) and 5(2) of the trust ordinance state that a written document is
required when transferring immovable and movable property. section 5(3) states
that this requirement is not necessary to prevent a fraud.

In VALLIYAMMAI ATCHI v ABDUL MAJEED, 48 NLR 289[PRIVY COUNCIL], It was held

that in an unconditional notarial transfer, that the formalities required to constitute
a valid trust relating to land are to be found in section 5 of the Trusts Ordinance and
not in section 2 of the Prevention of Frauds Ordinance. Thus, under section 5 (3) of
the Trusts Ordinance even a writing was unnecessary and sections 91 and 92 of the
Evidence Ordinance had no application.
In the case of PIYASENA VS DON VANSUE 1997 2 SLR 311, also it was held that even
though transfer is in the form an outright sale, it is possible to lead parole evidence
to show that facts exist from which it could be in inferred that the real transaction
was either, money lending where the land is transferred as security as in this case or
transaction in trust, in such cases sec.83 of the trust ordinance would apply.
Looking at the attendance circumstances of this case, it is clear that when the notary
said to do a conditional transfer in order to prevent fraud, respondant did not agree
to it and agreed to confirm in a letter that the property will be transferred back to
kala after the debt was settled.

(6) Your Honour’s attention is respectfully drawn to section 5(3) of the Trust Ordinance
and the section 92(1) of the evidence ordinance.
 section of trust ordinance
5 (3) These rules do not apply where they would operate so as to effectuate a fraud.

section of evidence ordinance

92. when the terms of any such contract grant, or other disposition of property or any matter
required by law to be reduced to the form of a document, have been proved according to the
last section, no evidence of any oral agreement or statement shall be admitted as between
the parties to any such instrument, or their representatives in interest for the purpose of
contradicting, varying, adding to or subtracting from its terms.

Your honours yes, it seems that section 5(3) of the trust ordinance and the first
interim junction of section 92 of evidence ordinance can be applied to this case,
because here Appellant had going to do a conditional transfer to prevent a fraud but
the respondent did not like it, so he said at that time that he promised to transfer
the property back in a letter.
(7) It is clear that respondent has took advantage of sections 91 and 92 of the evidence
ordinances. respondent agreed to say in a letter that he would reassign the deed at
the time, and because the money was urgent, the appellant assigned the deed to
respondent. although he settled then debt quickly, respondent did not want to
transfer the deed again because respondent had an intention of fraud.

(D) RESPECTFULL CONCLUSION

(8) It is submitted in conclusion that the petition of district court should be dismissed
with the order of the civil appellant court, in as much as;

(a) it is not reasonable to give the legal right of the property to the respondent
based on section 91 and section 92 of the evidence ordinance. Because
appellant had no intention to give legal right of the property to the respondent.

(b) here, should consider section 5(3) of the trust ordinance.

(c) here, should consider admissibility of parol evidence.

(9) According to the case laws mentioned above, it seems that justice has been
done by the constructive trust. therefore, I emphasize that justice should be
done to the appellant taking in to the situation of attendance circumstances
here as well.
 (10) The appellant was told to go for a conditional transfer to prevent a fraud. but
respondent wanted to do a deed transfer without conditions. it is clear that he had
a fraud intention from the beginning.

(11) Your honour, looking at the attendance circumstances of this case, it is clear that
a constructive trust has been created here. therefore, the justice should be done
to the appellant based on section 5(3) of the ordinance. because the appellant
never had the right to giving up the legal ownership of the property.

ATTORNRY AT LAW FOR THE PLAINTIFF – APPELANT

Settled by :-