( 347 )
Present: Mr. Justice Middleton and Mr. Justice Grenier.
UDUMA LEWAI v. MAYATIN VAVA ct ahD. (7., Batticaloa, 2,786.
Donation to take affect after donor'sdeath—A cceptance—I rrevooability—
Testamentary disposition—Roman-Dutch Law.
A dead of donation which is to take effect after the death ofthe donor and which is accepted by the donee is irrevocable and, cannot be treated as a testamentary disposition which must beadmitted to probate.
Adagappa Chetty v. Peeri Becbce1 and In the Matter of the Estate*>f Netna Mokauunado2 followed.
Vaitty v. Jaccova* disapproved.
PPEAL from a judgment of the District Judge of Batticaloa(G. W. Woodhouse, Esq.). The facts are fully stated in the
following judgment of the District Judge (February 18, 1907):—
The plaintiff seeks to recover from the defendants twenty-sevenhead of cattle, admitted to be worth Rs. 200, and Rs. 25 damages.The plaintiff rests hisS title ,on the document marked P 1. It pur-ports to be a ' donation deed, ' by which one Awwakker Lebbe AliarLebbe, ‘ for and in consideration of the confidence, love, and affectionI have towards my son Aliar Lebbe Odoema Lebbe/ donates,assigns, and sets over unto him the seventy-three,head of oxen andcows. ' Therefore, ' the document proceeds, ' by virtue of thisinstrument my son, the aforesaid Aliar Lewai Uduma Lewai, shallaccept, after my death, the aforesaid seventy-three head of cattle.’Then he goes on to say what shares he is to give certain parties, andwinds up thus: ‘and he, my son, shall take over his share and possessand enjoy the same- as his own property for ever/
“I think it is clear that, whatever Aliar Lewai choke to call the, instrument, it is a testamentary disposition, and the instrumentmust be proved in a Court of law before it can be given effect to. Ihave had the original document read to me, and the wording is soclear that^no doubt whatever exists in my mind that * death was theevent which was to give effect to the document.1 This view of hzmatter is borne out by the fact that this very plaintiff in D. C.,Testamentary, Batticaloa, No. 421, 'produced and-proved an exactlysimilarly worded instrument, by .which the same Aliar Lewai
disposed of his immovable property.
i (1883) 6 8. C. C. 13.■ . * (1891) 2 C. L. R. 52.
3 (1907) 2 App. Court Reports 45.
( 348 )
*t_The words * donate, assign, and set over ’ possess no specialvirtue, nor does the absence of any reference to an intention on thepart of the testator to revoke the deed and resume' the propertymake it a deed inter vivos, especially in view of the fact that AliarLewai retained possession of the cattle until his death.
" I need hardly comment on the Burden which lies on our Courtsto discourage, where possible, the various devices adopted by peopleto avoid payment of testamentary and legacy duties. On the first-issue, therefore, I hold against the plaintiff.
“ It appears that second defendant, who is a minor, resided withthe plaintiff for about three years after his (first defendant’s) father’sdeath. The plaintiff of course retained the cattle that should go tohim. Since the plaintiff omitted to seek the interference of theCourts it must be presumed that when he divided the cattle and gavecertain of the legatees their shares he tacitly apportioned seconddefendant his share of the cattle too, and merely retained thembecause he had constituted himself his guardian (also, it must benoted, without the interference of the Court). There is nothing inthe deed to say that plaintiff should have the use of the cattle untilsecond defendant attained his majority. Then the second defendantwent away and lived with first defendant. Naturally he wanted hiscattle, and appears to have taken them away. But. he appears tohave taken more than he should have, and the plaintiff and his mendetained six of them. The action seems simply to be the outcomeof spite between the plaintiff and the first defendant.
'• If the plaintiff could distribute the cattle to the daughters ofthe deceased without authority of Court, why hot to the minor sonsby the deceased’s last wife ?
“ I dismiss plaintiff’s action with costs. The plaintiff should nowtake steps to prove the instrument P 1 and take out probate in duecourse. ”
The deed of gift referred to by the District Judge was as follows: —
“ On the 20th day of February, 1902, I, Awwakker Lebbe AliarLebbe of Cattancuddyiroppoo,. for and in consideration of the con-fidence, love/ and affection I have towards my son Aliar LebbeOdoema Lebbe of the same place, hereby donate, assign, and set .over unto him the seventy-three head of .oxen and cows of the name,colour, brand marks, age, and other descriptions appearing in theherein attached schedule, also in the list of cattle and certificatesllos. 29 and 30, dated 3rd August, 1901, attested by S.<T. OdoemaLebbe, Registrar of Cattle of Chillycodeyaar, in my favour, and alsoas per report #of P. H.~A. Ahamado Lebbepody of the 19th instantfixing value of them as Rs. l,00Qf subject to the hereinafter describedconditions and directions which are to take place after mydeath.1
( 34® )
Therefore, by virtue of this instrument, my son, the aforesaidAli&r Lebbe Odoema Lebbe, shall accept after my death the afore-said seventy-three head of cattle, and out of them he shall give overin writing to A. Mohamedu Ebraim, A. Awwakker, A. Kumude Lebbe,and A. Aminaummah, children of my second bed, eight head ofcattle, as they (the said persons) are now minors, directly theyattain their age. Of the remaining cattle, he shall according toour creed divide them at the rate of two shares to the male andone share to the female child, and give over to A. Asiatommah,widow of Meera Lebbe, A. Kalimatommah, A. Cadesaommah, andA. Bagomatommah (born with him), who are the children of myfirst bed, in writing, and he my son, this Aliar Lebbe OdoemaLebbe, shall take over his share and possess and enjoy the sameas his own property for ever, ” &c.
The deed was accepted by the donee.
The plaintiff appealed from the judgment of the District Judge.
A. St. V. Jayewardene, for the plaintiff, appellant.
H. A. Jayawardene, for the defendants, respondents.
Cur. adv. vult.
October 15, 1907. Grenier A.J.—
The principal question argued on this appeal was whether deedNo. 1,856, dated February 25, 1902, on which the plaintiff basedhis title to the several head of cattle described in the scheduleannexed to the deed, was a testamentary disposition or a deed ofdonation. When the deed was first read to us by appellant’s counselI was certainly of opinion that it was in the nature of a last will, andthat the appellant could make no use of it until he had taken outprobate; but at the close of the argument our attention was drawnto a portion of the deed which clearly showed that the person whoexecuted it and the person in whose favour it was executed regardedthe instrument as a deed of donation infer vivos, to take effect after'the death of the donor.
The presence of clear words of acceptance on the part of the-donee-indicated beyond all doubt that neither party regarded the deed ascontaining a testamentary disposition. Possibly, had there not beenthis clause of acceptance in the deed, there would have been rpuchroom for pontroversy as to its real character. ^1 need hardly sbythat the Koman-Dutch Latv recognizes donations inter vivos, whichare to take effect after the death of the donor; the gift is a present,one taking effect immediately on due acceptance by the donee, butthe possession of the thing donated is postponed till the death of Ibedonor.
( 350 )
It is manifest that there are no words in this deed from which itmay be inferred that the donor had any intention to revoke it andto take back what was gifted at any time before his death. Butthat really makes no difference one way or the other in view of theattitude which'both the parties to it took up at its execution. Adonation inter vivos is in its nature irrevocable once it is accepted;and in that respect it differs from a last will, which the testator mayrevoke at any time he likes.
There is nothing in this deed to show that the donor intended itto be other than an irrevocable gift; and this being so, we think theDistrict Judge was in error in regarding the deed as a testamentarydisposition requiring probate in order to give it vitality. In thecourse of the argument we were referred to Vaitty v. Jaccova 1 insupport of the contention that the deed in question was a testamen-tary disposition. With much respect for the learned Judge whodecided that case, I think he went too far in holding that the deedthen before him was . a testamentary disposition. To my mind itwas, applying the principles of the Roman-Dutch Law to it, adonation inter vivos, which was to take effect after the death of thedonor.
The principles underlying donations inter vivos are so clear thatit seems unnecessary to refer to any decided cases on the point, butI would cite Adagappa Chetty v. Peeri Beebee 2 and In the Matter, ofthe Estate of Neina Mohammado.3 On the facts, we think that theplaintiffs are entitled -to succeed in view of our decision on the law.The plaintiff is entitled to the possession cf the animals in question,which are tile subject of this action, and the respondents had noright to remove them from his custody.
The judgment of the Court below will be set aside, and the respon-dents will be ordered to restore the cattle removed by them to theplaintiff, sucli cattle to remain with the plaintiff until the seconddefendant attains his majority.
I agree that, looking at the terms of the deed No. 1,856, datedFebruary 20, 1902, from the translation at page 27 of the record andthe fact that it is signed by the plaintiff, it must be construed asbeing a donation inter vivost to take effect after death, duly acceptedby the donee at its execution, and therefore irrevocable in the eyeof the Roman-Dutch Law, which governs us in these matters.
*Voet 39, 5, 4 (M$. Sampayo's translation), Burge, vol. XI., p. 143,and the decisions reported in 4 N. L. B 288, 6 8. C. C. 13, and2 C. L. B. 52 show that this is one of a class of deeds well known inRoman-Dutch Law, as Dias J. sasd in 6 8. C. G. 15.
1 (19075 3 App, Court Reports 45.* (188S) 6 S. C. C, 1.3.
.^ (1891) 2 C. L: R. 52.
( 351 )
I agree, therefore, with my brother Grenier that it ia not to betreated as a testamentary document, the revocability of which is anundisputed element in it, and that consequently the judgment ofthe learned District Judge must be set aside and judgment enteredfor the plaintiff on the basis proposed by my brother.
UDUMA LEVVAI v. MAYATIN VAVA et al