080-NLR-NLR-V-12-AFFEFUDEEN-v.-PERIATAMBY.pdf
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Present: Tlie Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
1900.
October 27.
AFFEFUDEEN v. PEBIATAMBY.
D. C., (MU, 8,765.
Purchase by father in daughter's name — Donation — Acceptance —Dominium—Ordinance No. 7 of 1840.
Where a person pays his own money for a land. and gets hisdaughter's name inserted in the deed as purchaser, the daughterbecomes the owner of the property, where the transaction is ineffect a donation and not a sale.
Rangkamy o. Bastion Vedarala,1 Perera v. David Appu,* andMurugesu v. Appuhamy3 referred to and commented on.
Queers by Hutchinson C.J.—Whether, in view of the provisions' of Ordinance No. 7 of 1840, a transfer in favour of one person canvest title in another person whose name is not mentioned in thetransfer ?
A
CTION rei vindicatio. Appeal by the defendant from aj udgment in favour of the plaintiff. The facts and arguments
sufficiently appear in the judgments.
Bawa (Hayhy with him), for the defendant, appellant.
A. St. V. Jayewardene, for the plaintiff, respondent.
Cur. adv. wit.
October 27, 1909. Hutchinson C.J.—
The plaintiff claims a house in Galle Bazaar as the administratorof the estate of his late wife Kadija Umma. The defendant is thefather of Kadija Umma, and claims that the house belongs to him.
By deed of sale dated September 12, 1890, Isa Nachchia, inconsideration of a sum of Bs. 1,000, sold and transferred the houseto Kadija Umma. The deed was registered on September 15, 1890.Kadija Umma was born on December 15, 1879, so that at the dateof the deed she was only in her eleventh year. It is proved thatthe Bs. 1,000 was paid by her father out of his own money, and thathe instructed the notary to insert her name in the deed as purchaser;and he deposed that she did not know that he was going to buy thehouse, and that she had no money to buy it with. He said that thedeed was delivered to and kept by him ; that he was put in possession
• (1897) 2 N. L. R. 360.- (1903) 6 N. L. B. 236.
3 3 Bal. 275.
24-
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1909.
October 27.
Hutchinson
C.J.
of the house, and leased it out and received the rants; but headmitted that once during his absence for about two months fromGalle in 1905 his daughter and her husband had granted a lease ofthe house for two years and received the rant in advance, and that,he allowed the tenant to remain and let them keep the money; andalso that his daughter got possession of the deed and granted amortgage of the house (which she afterwards] paid off), and that herhusband, the plaintiff, still has the deed. The plaintiff deposedthat the deed was in his wife’s possession at the time of his marriage ;and the District Judge is of opinion that the defendant gave it toher. She was married in 1899; attained twenty-one years of agein 1901; and died in February, 1906.
: The defendant submitted in his answer, and his counsel hascontended before us, that as the house was bought with his money,he is legally the owner of it.
As to the defendant’s intention in having the transfer made in hisdaughter’s name, we have only, apart from the deed itself, his state-ment that he bought other properties in the names of other children,and that he did so in order to make provision for all his children, butthat he did not intend that each child should have the propertybought in his or her name, but rather that they should all divide hisproperty equally at his death.
It appears to me that the defendant intended to make a gift ofthe house to his daughter ; that he carried out his intention by havingthe house transferred to her whilst she was a minor; and that whenshe came of age she with his knowledge accepted the gift and tookpossession of the house, and that she was at the time of her deathin possession of both the house and the deed. I would thereforeaffirm the decree of the District Court in favour of the plaintiff.
The appellant’s counsel contended that by virtue of the deed of1890, and immediately upon its execution, the title to the house vestedin the father, because he had no mandate from his daughter to buythe house for her, and therefore, by the rules of the Roman-DutchLaw, he must be regarded as the real purchaser. He contendedthat where A has, without authority from B, bought land in B’sname, and it has been transferred to B, the transfer to B is really atransfer to A. No doubt A cannot without B’s authority imposeany obligations on B by such a transaction ; and perhaps, also, hemight be able to insist on a re-transfer from B ; as to that I need notgive any opinion. But the proposition that a transfer to B can vestthe title in A is one for which I should require clear and conclusive ^authority. The Ordinance No. 7 of 1840, passed “ for the preven-tion of frauds and perjuries,” enacts that no transfer of land shallbe of force or avail in law unless it is in writing signed and attestedas therein mentioned. It is suggested that, notwithstanding this,a transfer to B may take effect as a transfer to A without anymention of A’s name in the deed. In support of this proposition
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Ranghamy v. Bastion Vedarala,1 Perera v. David Appu,2 and Muru-gesu v. Appuhamy 3 were cited. No doubt that was the Roman-Dutch Law; but the question that occurs to me is whether thosedecisions are consistent with the statutory enactment which I havequoted. But whether that is so or not the transaction in thepresent case was a gift, and should be supported as suoh.
I would dismiss the appeal with costs.
Wood Renton J.—
On the authority of Voet(XVIII., tit. l,s. 8) and of local decisionsof which one at least is binding on us (Ranghamy v. Bastian Vedarala,1Withers J.; Perera v. David Appu* Layard C.J., Moncreiff J.), Ithink we must take it that if a father buys land in his daughter’sname, but himself accepts delivery of the transfer, he becomes thereal purchaser, by virtue, not of the conveyance itself, for thatconfers no right of action either on him or on his daughter, but ofthe delivery. It appears to me, however, that that rule of lawdoes not apply where the transaction is in effect a donation andnot a sale. ■ In Ranghamy v. Bastian Vedarala 1 the facts are brieflystated. But it is clear that the purchaser intended the land toremain in his own possession during liis lifetime, and that liisdaughter’s name was inserted in the deed merely with a view tomaking some provision for her in the event of his death. In Pererav. David Apjm 2 Moncreiff J. says: “ I should imagine that the pricewas paid from money to which the minors were entitled. It isnot suggested that the purchase was a donation.” #
In the present case the boutique in question was bought by thedefendant-appellant with his own money, but intending—I amaccepting on all questions of fact the findings of the learned DistrictJudge—that it should ultimately belong to his daughter KadijaUmma. He retained it in his possession and dealt with it during herfirst marriage. At the time of her first marriage Kadija Umma wasstill a minor, and the boutique was not included in her-dowry. Onher second marriage, however, to the plaintiff-respondent, in 1903,it was entered both in the dowry list and in the Kaduthan, thoughno formal deed of conveyance was executed ; the original title deed,which had been duly registered in Kadija Umma’s name, and theboutique were handed over to her, and she dealt with the propertythereafter as her own, with the appellant’s full knowledge andconsent.
On these facts I think that the acceptance and registration of theconveyance, which was intended as a donation by the appellant,in his daughter’s name, were in law an acceptance of that donationby him on her behalf, and that the payment of the consideration to
‘ (1897) 2 N. L. B. 360.8 (1903) 6 N. L. B. 236.3 3 Bal. 276.
* (1903) 6 If . L. B. 236; and see Nathan 11., s. S52-
1909.
October 27.
Hutchinson
C.J.
( 316 )
1909.
October 27.
.WoodBenton J.
the vendor on condition of the execution of the conveyance in thename of Kadija Umma was a sufficient delivery of the subject-matter of the donation to Kadija Umma herself, apart from hersubsequent ratification of the donation with the knowledge andconsent of the appellant (see Elliott's Trs. v. Elliott1).
I would dismiss the appeal with costs.
Appeal dismissed.