Murugiah t». Jaintideen
1964 Present : Lord Morton ol Henryton, Lord Cohen,Lord Keith of Avonholm, Mr. T. Rinfret and Mr. L. M. D. de SilvaP. MURUGIAH, Appellant, and C. L. JATNUDEEN, RespondentPrivy Council Appeal No. 37 of 1953S. C. 140—D. C. Matale, 203
Privy Council—Collation—M atrimonial Rights and Inheritance Ordinance (Cap. 47)—Section 35—Donee’s right to keep his gift and renounce share in donor's estate.—Registration of Documents Ordinance (Cap. 101)—Section 8—“ Instrumentaffecting land ”.
If a father gives property to his son'on the occasion of the son’s marriage, anddies intestate, the son is not deprived by section 36 of the Matrimonial Rightsand Inheritance Ordinance of the option of renouncing all claim to share in hisfather’s estate or of bringing the property into collation. If he chooses thelatter alternative, ho has a further option of bringing in either the property itselfor the value thereof.
Pending administration of the estate of a person who had died intostate it wasdecided by Court on the 3rd February, 1641, that certain immovable propertywhioh had been gifted by the deceased to his son on tho occasion of the son'smarriage should be brought into collation. No formal order was drawn up togive effect to this decision and no transfer by the donee was executed in favourof the administrator. Subsequently the property was mortgaged by the donooand sold to A by the Fiscal in pursuance of a hypothecary doc roc entered infavour of the mortgagee. The present action was instituted by A against theadministrator for declaration of title to tho property and for ejectment of theadministrator therefrom.
Held, that the order made by Court on the 3rd January, 1941, could not de-prive the donee of his right to sell or mortgage tho property. As tho propertyhad been mortgaged, and sold to A,” the donee could only claim to participate inthe estate of the deceased person if he brought in the value of the propertygifted, since he was no longer in a position to bring in tho property itself, butthis fact in no way affected A's title to the property.
Held further, that the order of the 3rd February, 1941, could not be regardedas an instrument affecting land within the meaning of section 8 of tho Regis-tration of Documents Ordinance.
i^PPEAL from a judgment of the Supremo Court reported in54 N. L. R. 446.
R. O. Wilberforce, Q.C., with Gilbert Dodd, for the defendant appellant.
Dingle Foot, Q.C., with Sirimevan Amerasinghe, for the plaintiffrespondent.
Cur. adv. trull.
I.OKD MOKTON OF HENRYTON—Mttrugiah v. Jainudeen
November 3, 1954. [Delivered by Lokd Mobton of Henbyton]—
This is an appeal from a judgment of the Supreme Court of Ceylonwhich reversed a decision, of the District Court of Matale given on the25th January, 1951, and declared that the respondent was entitled to tenacres of land part of a parcel of 27 acres one rood and twenty-two perchesof land known as Kirigalpottewatt'a situate at Udugama in the CentralProvince of Ceylon.
In the year 1927 one Ponniah was the owner of the whole parcel buton tho 1st November, 1927, he executed a deed of gift by which he con-voyed the ten acres now in question to his son Sellasamy, reserving a lifeinterest to himself. In the deed of gift the ten acres were expressed tobo of tho value of Rupees six thousand. This de'ed was never registeredunder the Registration of Documents Ordinance.
Ponniah died on the 26th May, 1936, and in September, 1936, hiswidow commenced proceedings (Case No. 5437) in the District Courtof Kandy, asking for letters of administration to be granted to her of thedeceased Ponniah’s estate and asking also that certain lands donated byPonniah in his lifetime (including the land now in question) shouldlie brought into hotchpot and treated as part of his estate. Sellasamywas the first respondent to that suit and five other persons were maderespondents thereto. On the 7th December, 1936, Sellasamy swore anaffidavit opposing grant of letters of administration to the widow in thecourse of which ho (a) denied that the second, third and fourth respondentsto tho suit were tho legitimate issue of Ponniah, and (b) alleged that hewas not bound to bring into hotchpot the said ten acres of land sincethey were not given to him on the occasion of his marriage or for hisadvancement or establishment in life.
The relevance of this allegation is that by s. 39 of Ordinance No. 15 of1876, reproduced by section 35 of the Matrimonial Rights and InheritanceOrdinance (Cap. 47 of the 1938 Edition of the Laws of Ceylon) it isenacted that
“ Children or grandchildren by representation becoming with theirbrothers and sisters heirs to the deceased parents are bound to bringinto hotchpot or collation all that they have received from • then-deceased parents above the others either on the occasion of theirmarriage or to advance or establish them in life, unless it can beproved that the deceased parent, either expressly or impliedly, releasedany property so given from collation..”
°On the 28th June, 1937, the District Judge granted letters of administra-tion to the widow, and by consent the donated properties were left, forthe time being, in the possession of the donees.
The questions raised by Sellasamy’s affidavit of the 7tli December,1936, were dealt with by the District Judge on the 3rd February, 1941.He found that the second, third and fourth respondents were legitimateand then proceeded:—
“ The only other question to be decided is whether the 1st respondentwho was given a Deed of Gift No. 7881 of 1927 (1 R 3) by his
LORD MORTON OF HENRYTON—Mttrugtah v. Jainudeen
father Ponniah should bring the property gifted into collation if ho
wishes to inherit as an heir.
The point to determine is whether, as is stated by respondents 2
to 6 such gift was made on the occasion of his marriage. ”
After referring to section 39 of Ordinance No. 15 of 1876 and consider-ing the evidence, which was directed to the point that the only marriagecontemplated by Sellasamy at the date of the deed of gift had nevertaken place, he expressed the opinion that the fact that the marriage didnot take place made no difference, as the section applied to a gift madeon the occasion of a marriage performed or contemplated. He concludedas follows:—
“ I therefore hold that:—
All the respondents are lawful heirs.
The property gifted to the 1st respondent was on theoccasion of his marriage and that its value was 6,000 andthat it must be brought into collation. I would also order thatthe 1st respondent do pay to the other respondents the costsof this inquiry. ”
No formal order appears to have been drawn up to give offect to thisdecision and no transfer by Sellasamy to the administrator was everexocuted. Sellasamy appealed first to the Supreme Court and then tothis Board on the question whether the property was liable to collationand in both Courts the decision of the District Judge was affirmed.
On the 26th February, 1942, Sellasamy mortgaged the property forRupees 1,500 but this mortgage was paid off. It was entered on theregister of incumbrances pursuant to the Registration of DocumentsOrdinance (Cap. 101) but the appellant alleges that this registration hadno effect as section 15 (1) of the Ordinance had not been complied with.
On the 24th February, 1944, Sellasamy mortgaged the property forRupees 4,000 advanced by one Appuhamy. This mortgage was alsoregistered but the appellant alleges that this registration also had noeffect.
On the 26th August, 1948, Appuhamy commenced proceedings toenforce his mortgage and recovered judgment on the 25th February,1949. The property was in due course sold by the Deputy Fiscal pursuantto an order made on the 9th August, 1949. It was bought by therespondent for Rupees 400 and was conveyed to him by the DeputyFiscal on the 21st February, 1950.
In passing their Lordships would observe that in his answer toAppuhamy’s claim Sellasamy alleged that the property now in disputewas then included in the estate of Ponniah in Case No. 5437. It wasat ono time suggested that this was an admission on which the appellantcould roly as against the respondent. Having regard to the fact that itwas merely a statement made by Sellasamy in proceedings againBt himby hiB mortgagee, their Lordships are unable to regard it as in any waybinding on the respondent, who derives his title from a sale by the Courtat the instance of that mortgage.
LORD MORTON" OP HENRYTON—Murugiah v. Jainudeen
On the 19th May, 1950, the appellant procured the registration of thedecree of the 3rd February, 1941, on the footing ,• presumably, that thejudgment was «-n instrument affecting land within the meaning of section 8of the Registration of Documents Ordinance (Cap. 101).
On the 9th August, 1950, the respondent commenced the present pro-ceedings against the appellant, who had become the administrator ofPonniah’s estate, in succession to the widow. The respondent allegedthat the appellant had wrongfully and forcibly entered into possessionof the: land in dispute some three months previously, and claimed adeclaration that he (the respondent) was entitled to the land anc("toconsequential relief. The appellant relied on the said order made inCase No. 5437 on the 3rd February, 1941, and contended that by virtuethereof Sellasamy lost all rights to the land in dispute. The appellantalso relied on the registration of that order as giving him priority overthe respondents under section 7 of the Registration of DocumentsOrdinance. On the 21st December, 1950, the respondent moved to amendhis plaint so as to enable him to rely on section 3 of the PrescriptionOrdinance No. 22 of 1871. It is not clear whether this application wasgranted but for reasons which will appear hereafter this point is of noimportance.
The pleadings being closed, issues were framed as follows :—
Has the title of Sellasamy derived on P2 (the mortgage of 24thFebruary, 1944) passed to the plaintiff on P3 (the conveyance by theDeputy Fiscal on the 21st February, 1950) ?
Is the order made on 3rd February, 1941—D2 in Testamentaryproceedings 5437 of D. C. Kandy, res judicata between the parties ?
If so, is defendant as administrator of the said estate in lawfulpossession of the said premises ?
On the 25th January, 1951, the District Judge gave judgment dismissingthe action. He held that the effect of the order of the 3rd February, 1941,was that the subject matter in dispute lost its identity and got submergedin> the estate, Sellasamy and the other heirs becoming entitled to an un-divided share of the whole estate. Accordingly he answered the issuesas follows;— “ 1. No. 2. Yes. 3. Yes.”■.
From this order the present respondent appealed, and on the 18thSeptember, 1952, the Supreme Court allowed the appeal, declared thepresent respondent entitled to the property in dispute, and made an'orderfor the ejection of the appellant therefrom.,
As the appellant’s claim to the property rests entirely upon the orderof 3rd February, 1941, it is convenient first to consider what was thelaw applicable at the date when that order was made. It was agreedbefore their Lordships that the following passage from Steyn’s “ Law olWills in South Africa ” (1935 Edition, p. 103) was a correct statementof the lew applicable in Ceylon before the passing of Ordinance No. 15of 1876
“ Collation is the duty incumbent on all descendants who asheirs wish to share in the succession to an ancestor, either by will
180 LORD MORTON OF HENRVTON-pAftirtiffioA *>. Jatntidnn
or ab intestate, of accounting to the estate of the ancestor for certainkinds of gifts and debts received from or owing to him by themduring his lifetime.
Thus, if a child, grandchild or more remote descendant wishesin inherit from a parent, grandparent or remote ascendant fromwhom he has during his lifetime received any property or moneyas his portion of his inheritance, or as a marriage gift or otherwisefor his advancement in trade or business or such like, he will, beforethe division of the estate, have to bring into or collate with theestate of such parent, &c., either what he may have so received orenjoyed or the true value of the same at his option, so that thewhole estate, thus augmented, may be divided in terms of the willof the testator or according to the law of succession ab intestate. ”
Thus, if a father gave property to his son on the occasion of the son’smarriage, and died intestate, the son had the option of renouncing allclaim to share in hiB father’s estate or of bringing the property intocollation. If he chose the latter alternative, he had a further optionof bringing in either the property itself or the value thereof.
Mr. Wilberforce for the appellant submitted that the effect of section 39of Ordinance No. 15 of 1876 (which has already been quoted in full) wasto take away both of these options and to impose on thedonee a positive obligation to bring into the estate, so as toform part thereof, the property the subject of the gift; that therewas no option to surrender the value of the property insteadof the property itself ; and that the order of the 3rd February, 1941, wasin effect a declaration of title in favour of the administrator of Ponniah’sestate. He relied in particular (o) upon the fact that the section does notcontain any qualifying words such as ‘‘if they wish to share in theestate ” and (6) upon the absence of any reference in the section to thealternative of bringing into hotchpot the'value of the property instead ofthe property itself.
• If Mr. Wilberforce’s argument is correct, the section made a verystriking change in the law, for which he could suggest no reason. TheirLordships do not doubt that if and so far as any provision of the sectionis inconsistent with the provisions of the Common Law, the section mustprevail. It was for this reason that the Supreme Court in Vaitianathen v.Meenalchi 1 held that after the passing of the section collation took pjaeeonly when a parent gives property to his children either on the occasion oftheir marriage or to advance or establish them in life. In their Lordships’view, however, there is nothing in the section inconsistent with the pre-servation of the two options already mentioned. The first option ispreserved by the words “ becoming … heirs to the deceased
parents ”, which do not rule out the alternative that the donee mayelect not to claim his share as an heir. The second option ispreserved by the UBe of the words “ bring into hotchpot or collation ”.The Ordinance under consideration contains no definition of " hotchpot 1
1 (1913) 17 N. L. R 26.
LORD MORTON OF HENRYTON—Murugiah v. Jainudeen
or collation ” nor does it contain any provision from which their Lord-ships can attribute any particular meaning thereto. ' The proper course inthese circumstances is to attribute to the words the meaning which theyl>ore under the law applicable immediately before the section was enacted.That meaning undoubtedly conferred upon the donee the second of thetwo options already mentioned.
Mr.. Dingle Foot for the respondent referred their Lordships to thefollowing passage in Maxwell’s “ Interpretation of Statutes” 10th Edition,page 81 :
“ Presumption against Implicit Alteration of Law
One of these presumptions is that the legisjature does not intendto make any substantial alteration in the law beyond what it explicitlydeclares either in express terms or by clear implication, or, in otherwords, beyond the immediate scope and object of the statute. Inall general matters outside those limits the law remains undisturbed.It is in the last degree improbable that the legislature would overthrowfundamental principles, infringe rights, or depart from the generalsystem of law, without expressing its intention with irresistibledearness-”
Their Lordships agree that the law is correctly stated in the passagecited. They would only add that they agree with the opinion expressedby Gunasekara J. in the Supreme Codrt that the language of the section,“ confirms rather than negatives the view that the legislature did notintend to take away the heir’s option to discharge a liability to collationby bringing the value of the property into account. ”
Turning to the question of the effect of the order of the 3rd February,1941, it is important to observe the learned District Judge’s statement ofthe question he was deciding. Their Lordships will therefore repeat thecitation they have already made :
The only other question to be decided is whether the 1st respon-dent who was given a Deed of Gift No. 7881 of 1927 (1 R 3) by hisfather Ponniah should bring the property gifted into collation if hewishes to inherit as an heir..
The point to determine is whether, as is stated by respondents 2to 6, such gift was made on the occasion of his marriage. ”
It is no doubt true that the form of his final conclusion indicates that thelearned judge was assuming that Sellasamy would claim his share in theinheritance, but having regard to the way in which the learned judgehad stated the question he had to determine their Lordships are unableto construe his order as depriving Sellasamy either of his right to retainhis gift and renounce his share in the inheritance or; if he desired toparticipate, of his option to bring in the value of the gift instead of theproperty given. Sellasamy thus retained the legal estate in the property,and there waa no fetter upon his power to sell or mortgage it. As theirLordships have already stated, he proceeded to mortgage the propertyand it was sold to the respondent by the Deputy Fiscal in proceedings
Silinduhamy v. Weeraperuma
commenced by the mortgagee. Thereafter SeUasamy could only dlaiinto participate in the inheritance if he brought in the value of the propertygiven, since he was no longer in a position to bring in the property itself,but this fact in no way affects the respondent’s title to the property.
Having regard to the view of the order which their Lordships have justexpressed, they cannot regard it as being an instrument affecting land,within s. 8 of the Registration of Documents Ordinance. Thus the regis-tration of the order in 1950 was ineffective to defeat the title of the re-spondent, even if it bo assumed that the registration of the two mortgageswas also of no effect.
It was suggested in argument that the registration of the order wasineffective to defeat the title of the respondent for other reasons also butit is unnecessary to state these reasons or to arrive at a conclusion iijkhithem.
As the respondent succeeds on the strength of the conveyance to himby the Deputy Fiscal, their Lordships need not consider whether he oughtto be allowed to rely on the Prescription Ordinance, No. 22 of 1871.
Their Lordships will humbly advise Her Majesty to dismiss the appeal.The appellant must pay the respondent’s costs.
P. MURUGIAH , Appellant , and C. L. JAINUDEEN , Respondent