031-NLR-NLR-V-54-PUBLIC-TRUSTEE-Appellant-and-MRS.-N.-SENEVIRATNE-Respondent.pdf
Public Trustee v. Seneviratne
145
1952Present: Gratiaen J. and Gunasekara J.-
PUBLIC TRUSTEE, Appellant, and MRS. N. SENEVIRATNE,
Respondent
S. G. 459—.D. C. Colombo, 1,942
Donation—Cheque given by donor—Refusal of Sank to honour the cheque—Death ofdonor—Right of donee to sue legal representative.
Under Roman Dutch law a donation may be made not only by givingand delivering but also by promising. Both the giving causa donationis andthe promising causa donationis are equally donations.
R. offered to donate to plaintiff a sum of Rs. 5,000 and plaintiff accepted theoffer. Contemporaneously with the acceptance of R.’s offer to donate Rs. 5,000,plaintiff received a cheque for that amount from R. The Bank, however,refused to honour the cheque on the ground that R.’s signature was doubtful.Before R. could satisfy the Bank in regard to the authenticity of his signature,he died. In an action instituted by the donee to recover the amount involvedfrom the administrator of R.’s estate—
Held, that the mere drawing of the cheque did not serve automatically toappropriate to the donee’s benefit an equivalent sum of money lying to thedonor’s credit at the Bank. Nevertheless, under Roman Dutch Daw, theplaintiff was entitled to sue on R.’s promise simpliciter.
J^-PPEAL from a judgment of the District Court, Colombo.
N. E. Weerasooria, Q.G., with E. R. S. R. Goomaraswamy, for thedefendant appellant.—The District Judge has taken the view that thecheque was an assignment of the money in the hands of the banker.This view was based on an English ease, Bromley v. Brunton1, which,it is submitted, is not good law. See the judgment of Romer J. inre Owen, Owen v. Inland Revenue Commissioners2. See also re Swin-burne 3, and Re Beaumont 4.'
H. W. Jayewardene, with S. J. Kadirgamar, for the plaintiff re-spondent.—Bromley v. Brunton {supra) was not followed in later casesbecause in English law there must be delivery. Roman Dutch law isdifferent. A promise to pay money is implied in the transaction andmust be given effect to. No delivery of the gift is necessary. Thecheque was only a direction to the bank to pay the money. See Mor ice :English and Roman Dutch Law, 2nd ed., p. 108 ; Parampalam v. Aruna-chalam 6 ; Public Trustee v. TJduruwana e.
N. E. Weerasooria, Q.C., in reply.—There is no evidence that thedeceased promised to give money. That was not the case of the plaintiff.He relied solely on the cheque. The District Judge was wrong in lawas to the effect of the cheque.
Cur. adv. wilt.
(1868) L. R. 6 Eg. 275.*(.1902)1 Ch. 889.
(1949) 1 A. E. R. 901.6(1927)29 Ar. L. R.289.
2 (1926) Ch. 38.6(1949)51 K. L. R.193,
7LIY.
2J. N. B 20708-1,560 (10/52)
146
GRATIAEN J.—Public Trustee v. Seneviratne
June 9, 1952. Gb.atia.ew J.—
This is an appeal by the Public Trustee, who is the administratorof the estate of a deceased gentleman named P. D. R. W. Siriwardene(but better known during his lifetime as “ Peter Rodrigo ”), against ajudgment and decree of the District Court of Colombo ordering him topay to the plaintiff a sum of Rs. 5,000 out of the deceased’s estate. Theaction relates to a transaction which had taken place a few days beforeRodrigo died in November, 1947, leaving a last will whereby hebequeathed the entirety of his estate to charitable causes.
The Public Trustee admittedly had no personal knowledge of thecircumstances upon which the plaintiff’s action was based, and he there-fore put her to strict proof of her claim. In addition, acting apparentlyon information received from some disgruntled relatives of Rodrigo, herepudiated the transaction by challenging Rodrigo’s mental capacityat the relevant date ; he also raised certain special defences such as wereset out in his plea of undue influence. It is but fair to the plaintiff torecord the fact that all these allegations were conclusively proved to bewithout substance. Mr. Weerasooria very properly did not contestany of the findings of the learned District Judge on these issues, and heconfined his argument to the question whether, upon the plaintiff’sversion of the facts, she could maintain her action for relief againstRodrigo’s estate.
The evidence of the plaintiff with regard to the circumstances of thetransaction was materially corroborated by independent witnesses andwas accepted as true by the learned District Judge. For the purposesof this appeal, therefore, I shall regard her version of the facts as settingout substantially the real nature of the transaction upon which herclaim is based. The question for our decision is whether those factsgive rise to an enforceable cause of action (in one or other of thealternative forms pleaded in the plaint).
The relevant facts may now be shortly narrated. The plaintiff, whois a married lady living with her husband on an estate in Urapola, hadknown Rodrigo since she was a little child, and their families had beenon terms of close friendship. She called him “Peter uncle ”. In orabout the year 1942, at the time of the threatened Japanese invasion,Mr. and Mrs. Rodrigo evacuated to the district in which the plaintiff andher husband resided. Mrs. Rodrigo was very seriously ill at the time,and the plaintiff not only helped to nurse her but also treated the elderlycouple with much consideration. Shortly afterwards, Mrs. Rodrigodied, and Rodrigo, who was now a lonely widower, took up residence atthe plaintiff’s house for some years, making some nominal contributiontowards the cost of his board. There is not the slightest doubt that hewas very grateful for the many kindnesses which he had received at thehands of the plaintiff without any thought on her part of obtaining•corresponding advantage for herself. In or about the year 1946 Rodrigowent away to his own house in Galle. He was then about 67 years of ageand in feeble health. The plaintiff and her husband corresponded withhim and visited him there from time to time. In November, 1947, he
<TR A TTAF.y J.—Public Trustee v. Seneviratne147 –
became seriously ill and was removed to a non-paying section at theGeneral Hospital in Colombo. Erom there he wrote to the plaintiff whovisited bim and arranged for him to be transferred to a paying ward,making the necessary deposit out of her own funds.On 17th November,
at his request, she arranged for his transfer to a private hospital in Colombowhere he died seven days later.
The rides of the private hospital required that Rodrigo should onadmission make a deposit against the cost of his medical and otherexpenses but, owing to the state of his health, he was unable to subscribelus normal signature on a cheque for Rs. 750 which he attempted todraw on his bankers in Galle. Accordingly, the plaintiff saw Rodrigo’slegal adviser the next morning and this gentleman, in the doctor’spresence, attested on a cheque for Rs. 750 Rodrigo’s thumb impressionin lieu of his normal signature. At the same time, the lawyer attested,also on Rodrigo’s instructions and in the doctor’s presence but withoutthe plaintiff 's prior knowledge, Rodrigo’s thumb impression on anothercheque for Rs. 5,000 drawn on the same bankers in favour of the plaintiff.It is to this latter transaction that the present action relates.
Shortly stated, the plaintiff’s version, which the learned Judge hasaccepted as true and which the Public Trustee no longer disputes, isthat after Rodrigo’s lawyer had left and after the cheque for Rs. 750had been handed over to the doctor in charge of the hospital, Rodrigooffered the cheque for Rs. 5,000, drawn in her favour, to the plaintiff.Up to this time he had given her no idea of bis intentions in regard tothis cheque. He told her in so many words that he wished her to acceptthe sum of Rs. 5,000 represented by the cheque as a present for herselfand on behalf of her two children, expressing at the same time his gratitudefor all that she had done for him. The plaintiff replied, “ not so muchPeter Uncle ”, and Rodrigo “ said that (she) might do something withit and suggested Rs. 2,000 (each) for the two children ”. The plaintiffeventually accepted the cheque, and Rodrigo told her to go to 'Gallewithout delay and have it cashed. She went to Galle for this purpose,but, for reasons which I shall later explain, she was unable to realise thecheque.
I pause here to reduce into simple legal terms the substance of thisconversation as it was narrated by a truthful witness who could nothave understood the intricacies of the law governing the transaction,namely, the English law relating to cheques and negotiable instrumentson the one hand, and the Roman Dutch law relating to donations on theother :—
“ (1) Rodrigo offered to donate to the plaintiff a' sum of Rs. 5,000,the motive underlying his offer being gratitude, generosity andbenevolence all of which elements constitute a justa causa debendito sustain a promise under the Roman Dutch Law. JayewicJcreme v.Amarasuriya x. The plaintiff accepted this offer, and in consequencethere was immediately formed by mutual consent of the parties a
1 (1918) 20 X. L. R. 289.
148GRATIAEN J.—Public (Trustee v. Seneviratne
valid contract of donation inter vivos which, in the circumstances ofthis case, may be classified as a donatio remuneratio. Upon heracceptance of the offer by the donee, she became vested with a rightof action to compel the donor to specific performance of his obligation.Voet 39—-5.19, 20 ; and jPublic Trustee v. XJduruwana1. For, whereasunder the English Law a bare executory contract of donation intervivos, unless embodied in a formal deed or implemented by delivery(actual or constructive) creates no legally enforceable rights, Morice’sEnglish and Roman Dutch Law ®, the Homan Dutch Law principlesrecognise a donation as a species of “ contract ” entitling a donee,upon acceptance of a promise solemnly made and proceeding fromproper motives, to enforce that promise. As Voet explains {—5—2),
“ Just as we donate by giving and delivering, so also we donate bypromising, and therefore both the giving causa donationis and thepromising causa donationis are equally donations.”
Contemporaneously with the acceptance of Rodrigo’s offer todonate Rs. 5,000 to the plaintiff, she accepted the cheque for thatamount which he had offered in implementation of his earlier promise.Both the English Law and the Roman Dutch Law presume that a chequeis accepted only as a conditional discharge of the principal obligationand it follows that, if it be dishonoured, the creditor can sue upon theoriginal cause of action. Wessells on Contract3. That presumptionhas not been rebutted by any facts which were proved or admittedat the trial. In the result, the legal consequences of the transactionup to the point of time when the plaintiff arrived in Galle the nextmorning in order to realise the cheque were that (a) if the cheque wereduly met on presentation, Rodrigo’s obligation under the promisecausa donationis would have been discharged by performance, but(6) if it were dishonoured, the principal obligation would immediatelybecome enforceable against Rodrigo in his lifetime or against hislegal representative upon his death.”,
I now return to the facts which occurred after the plaintiff arrived inGalle. The Bank refused to honour the cheque because Rodrigo’s“ signature ” was irregular, and the plaintiff was advised, apparently,to have the authenticity of Rodrigo’s thumb impression certified by aJustice of the Peace. She accordingly returned to Colombo and consultedMudaliyar Eric Perera, J.P., who visited his friend Rodrigo in hospitalto discuss the matter with him. Rodrigo confirmed the genuineness ofthe cheque, and asked Perera to take the necessary steps to have thematter regularised. (This attitude strongly supports the view that,although the cheque was dishonoured, he regarded his principal obligationas still subsisting.) Perera consulted the officials of the.Head Office ofthe Bank in Colombo and was advised by them to obtain a properlyauthenticated letter from Rodrigo requesting the Bank to meet thecheque in spite of the irregularity in his signature. There is no evidence,however, that the Bank had unequivocally undertaken to meet the
1 (1949) SI N. L. S. 193.
a (2nd ed.) pages 108—9.
* Volume 1 page 676 paragraphs 2228 and 2229.
GRATLAEN" J.—Public Trustee v. Seneviratne
140
cheque if the suggested procedure were complied with. A letter on thelines indicated was in fact prepared by the proctor who had previouslyattested Rodrigo’s thumb impression on 18th November, but when hearrived at the hospital, some of Rodrigo’s relatives whom he met therewere, to use his own words, so hostile and “ nasty ” that he was unableto contact the invalid. Rodrigo died on 24th November before the chequecould be honoured. In the result, Rodrigo’s principal obligation underbis binding promise to donate Rs. 5,000 to the plaintiff remainedundischarged at the date of his death.
Upon these facts the plaintiff sued the Public Trustee for the recoveryof the amount involved—.
upon a cause of action based on Rodrigo’s liability on the cheque
itself ; and, alternatively,
on the footing that Rodrigo “ gave and donated to and/or promised
or offered the sum of Rs. 5,000 and the plaintiff accepted thesame ”…
The learned District Judge rightly rejected the cause of action on thecheque, because admittedly the English Law governs that aspect of theplaintiff’s claim and a promise to donate a sum of money to the payeedoes not constitute “ valuable consideration ” which is a conditionprecedent to liability.
With regard to the other cause of action (which is itself split up intotwo distinct alternative sub-divisions) the learned District Judge tookthe view that the plaintiff could succeed on the basis that, in the cir-cumstances of the case, the issuing of the cheque amounted in law to a“ constructive delivery ” of a sum of Rs. 5,000 lying to Rodrigo’s creditat the Bank. In arriving at this conclusion, the learned Judge purportedto follow a ruling of the Court of Equity in England in Bromley v. Brunton x.With respect, the learned Judge went wrong at this point. In Bromley'scase the Court of Equity was no doubt concerned with a set of circum-stances very similar to the present case. The English Law, unlike theRoman Dutch Law, insists on actual or at least constructive delivery inorder to confer validity on a gift inter vivos, and Vice Chancellor Stuarttook the view that the drawing of the cheque served automatically toappropriate to the donee’s benefit an equivalent sum of money lyingto the donor’s credit at the Bank. But in truth Bromley's case enjoyedonly a brief and most precarious career as a precedent in the EnglishCourts. Its ratio decidendi “ puzzled ” Buckley J. in re Beaumont;Beaumont v. Embank 2 and was politely distinguished. It was stronglydisapproved by the Court of Appeal in re Swinburne 3, and its epitaph hasbeen recorded in a recent judgment of Romer J. in Owen v. InlandRevenue Commissioners 4. For the true principle is that the mere issuingof a cheque granted to a person by way of gift, unless accompanied by anirrevocable undertaking by the Bank to hold an equivalent sum of moneyexclusively available to answer the cheque, cannot be regarded as “ an
1 (1868) L. R. 6 Eq. 275.3 {1926) Ch. 38.
* {1902) 1 Ch. 889..* {1949) 118 L. J. R. 1128.
2*J. N. B 20708 (10/52)
150
GRAT1AEN J.—Public Trustee v. Seneviratne
appropriation or dedication of the money in the Bank or a constructivepayment of the cheque *. In tie result, Rodrigo’s intention to dischargehis obligation was frustrated during his lifetime, and the plaintiff’s actionmust stand or fall on the enforceability of Rodrigo’s unfulfilled promiseto donate Rs. 5,000 to her. The answer to that question is regulated bythe Roman Dutch Law, and, for the reasons which I have previouslygiven, I hold that the acceptance of the offer by the plaintiff and thesubsequent dishonouring of the cheque which had been granted as aconditional (and not an absolute) discharge of the resulting obligation,clearly entitled the plaintiff to sue on the promise svmpliciter. In thatview of the matter;, there was really no need to enquire whether thegift had been perfected in some way “ by the assistance of equity
In my opinion the judgment under appeal must be affirmed, but notfor the reasons which weighed with the learned District Judge. Theplaintiff’s action succeeds because the following issues must, upon thefacts, be answered in the affirmative :—
“ 3 (6) Did the late Mr. P. D. Rodrigo on or about 18.11.47 promiseor offer the plaintiff a donation in the sum of Rs. 5,000 ?
4. Did the plaintiff accept the said promise or offer 1 ”
In arriving at this conclusion I do not lose sight of the fact that theplaintiff had admitted under the stress of cross-examination that “ apartfrom the cheque Rodrigo gave me, he made me no other present ofRs. 5,000. He did not promise the Rs. 5,000 at any time other thanhanding me the cheque. The promise to give Rs. 5,000 which I havepleaded in the plaint is the cheque that he gave me ”. These somewhatambiguous answers were no doubt elicited in an attempt to bring thefacts of the present case into line with the ruling of Garvin J. (withwhose conclusions Dalton J. agreed on entirely different grounds) inParampalam v. Arunachalam1. But the ratio decidendi of Garvin J.’sjudgment is manifestly distinguishable. Bor there, as he pointed out,“ the only contract between the parties was embodied in a document ”which Garvin J. construed as a promissory note, and on that assumption“ the writing was the only evidence of the contract ”. No such analogyis permissible in the present case where the offer and acceptance of acheque necessarily indicate the formation of an earlier concludedagreement. The plaintiff’s evidence which I have quoted is, if sensiblyconstrued in the light of the real transaction between herself and Rodrigo,perfectly innocuous. If, on the other hand, it must be assessed as theexpression of a layman’s opinion on a complicated question of law, it isof no value whatsoever.'
Bor the reasons which I have given, I would dismiss the Public Trustee’sappeal with costs.
Gtxnasekara J.—I agree.-
Appeal dismissed.
(1927) 29 N. L. R. 289.