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Prc&ent : Schneider J. and Jayewardene A.J.
HOEATALA r. SAXCHI et al.
182—D. G. Ne<jombo, 16,679.
Donation—.1 ft ion to revoke deed of gift—Ingratitude of douce—Right oftransferee to intervene–Civil Procedure Code, *. 1$,-
Where iu an action for the revocation of a deed of gift, it appearedthat; the property had been transferred bv the donee, the transfereeis a proper party to the action and may be added under section 18of the Civil Procedure Code.
Per .'Jayewardene A..J.—Under the BomanlJutch law propertydonated cannot he reclaimed for ingratitude, if the donee has ingood faith and without any intention to defraud the donor alienatedthe same by sale, donation, or any other lawful mode before thequestion of ingratitude has been raised or the institution of the actionfor revocation.
PPEAL from ail order of the District Judge of Negombo.
An action to revoke a deed of gift by which the plaintiff and
her husband donated the property in question to the defendant, theirson. subject to certain conditions. The plaintiff, after thedeath of her husband, brought the present action to revoke the
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deed of gift as to her half share on the ground of ingratitude and onthe further ground that the donee had violated the conditionsattached to the gift. The defendant filed no answer, and the easewas heard ex parte and judgment reserved. On the day fixed forjudgment, the appellants filed a petition of intervention and askedthat they be added as defendants to the action. They claimed theproperty as purchasers in execution against the donee. Theirapplication was refused, and they appealed.
Weerasinghr. for uppelluuts.
JL T. Parent, for plaintiff, respondent.
January MO, ]02o. Jaykwardene A.J.—
This is an action to revoke a deed of gift. The plaintiff and herhusband gifted in the year 1908 the property referred to in the plaintto the defendant, their son. subject to certain conditions. Theplaintiff'* husband died some time ago, and the plaintiff bringsthe present action, to revoke the gift as to her half share onthe ground of ingratitude and as the donee had violated the conditionsattached to, the gift. The defendant filed no answer, and the casewas heard ex parte and judgment reserved. On the day the casewas to be called for judgment, the appellants filed a petition ofintervention, and asked that they be added as defendants to theaction. The defendants claimed the property hi question aspurchasers in execution against the donee. They alleged that theproperty was sold by the Fiscal in the year 1917, and that theyhad obtained a Fiscal’s transfer on August 4* 1924. a few days beforethe action was instituted. Their application to intervene wasrefused., and they appeal. Assuming the Fiscal’s sale to be agenuine one, it is clear that at the date of the action the defendantwas not entitled to the property, and the legal owners of it were theappellants. According to Yoet a donation can be revoked forfailure to fulfil the conditions annexed to a donation and for grossingratitude (39, 5t 22). In the evidence given by the. plaintiff nostatement is made with regard to the breach of any condition bythe defendant, and the plaint does not state which of the conditionsannexed to the gift have been violated, and this case may thereforeHe regarded as one to set aside the deed of gift on the.ground ofingratitude or on similar grounds alone. Under the Roman-Dutclilaw property donated cannot be reclaimed for ingratitude, if thedonee lias, in good faith and without any intention to defraud .thedonor, alienated the same by sale, donation, or any other lawfulmode before the question of ingratitude has been raised or theinstitution of the action for revocation. Voet 39. ». 24; Maas dorp,vol. 3. p. 102: Nathan, vol. 2. a. 1090, p. 1164.
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The donee being divested of hie right to the property, and beingno longer interested in the property, the proper persons againstwhom the action ought to have been brought are the appellants.The transfer in their favour would be valid, unless it can be shownthat the Fiscal's sale was a collusive and fraudulent- one. It is notalleged that the defendant is in possession of the property, and nodamages are claimed against him, the prayer is for the cancellationof the gift in respect of the plaintiff's half share of the property andfor a declaration of title in her favour. In the circumstances assoon as it was disclosed that the defendant was not the owner of theproperty at the date of the institution of this action, the plaintiff'saction became liable to be dismissed. If the plaintiff wishes tocontinue the action, it can only be done by adding the appellantsas defendants. ( This is strenuously resisted, and the plaintiff saysthat she is prepared to have a decree against the defendant alone-for what it is worth. But Courts cannot be called upon to passworthless ^decrees. In the ordinary case a plaintiff would beonly too glad to add the party who is the real disputant.
I think the Court has power under section 18 to# add these. appellants as defendants to the action. The appellants are personswho ought to have been joined as defendants when the action wasinstituted, and section 18 empowers the Court at any time to ordersuch persons to be joined as plaintiffs or defendants.
The appellants are deeply interested in the relief claimed by theplaintiff, and I am further of opinion, if the expression of any suchopinion is necessary in this case, tbat their presence before the Courtis required to enable it to effectually and completely adjudicate uponand settle all questions involved in the action.
Such a joinder would also prevent litigation over the deed of giftin the future and thus avoid a multiplicity of actions.
The order appealed from is set aside, and the appeal allowed withcosts.
I agree with the judgment of my brother Jayewavdene that theappellants, who are the applicants for intervention, come within thedescription of persons who may be allowed to intervene in thattheir presence before the Court is necessary in order to enable theCourt effectually and completely to adjudicate upon and settle allthe questions involved in the action.
I would express no opinion on the question whether it is competentfor the plaintiff to seek a revocation of the donation in the light ofthe events which have happened since the donation was made,because that question does not arise upon this appeal and it wasuot discussed at the hearing of the appeal.
HORATALA v. SANCHI et al