107-NLR-NLR-V-58-AHAYANI-UMMA-Appellant-and-K.-S.-KAMALDEEN-Respondent.pdf
J955 Present: K. D. de Silva, J., and H. N. G. Fernando, J.
AHAYANI UMMA, Appellant, and Iv. S. KAMALDEEN,Respondent
S. C. 5G2—D. C. Kandy, 3.S09/L
Donation—-Clause therein conferring benefit on a third parly—Acceptance—Applica-bility of law relating to a contract creating a slipulalioninfavour of a third party.
A gift of immovable property by A to B subject to the life interests of Aan cl C is, so far as C is concerned, a contract creating a stipulation in favourof a thii'd party (C). The benefit of the stipulation (life interest) in Cl’s favourmay be accepted by C after tho death of A.
A PPEAL from a judgment of the District Court, Kandy.
H. W. Tambiah, with H. L. de Silva, for the defendant appellant.y. D. 31. Samarakoon, for the plaintiff respondent.
Cur. adv. viilt.
December S, 1955. de Silva, J.—-
IC. S. Kamaldeen the plaintiff respondent instituted this action againstAhayani Umma the defendant appellant for a declaration that he isentitled to a life interest in the premises No. 2/9, Slaughter Houso Road,Kandy, and for the ejectment of the defendant and for damages. Thelearned Additional District Judge entered judgment in favour of theplaintiff. This appeal is from that judgment..
It was averred in the plaint that Maimoon Umma who was admittedlytho sole owner of the premises in question, gifted by deed PI dated 2ndNovember, 1950, a half share of the samo to .one Loithen subject to alife interest in favour of the plaintiff and that she gifted the balance halfshare by deed P2 of tho same date to the defendant also subject to alife interest in favour of the plaintiff. The plaintiff was the 2nd husband
of Maimoon Unima while tho defendant is the daughter of Maimoon.Umma by her first husband. The plaintiff alleged that on or about 13thSeptember, 1952, the defendant entered into forcible occupation of t-liepremises and continued to be in wrongful possession of the same. Thedefendant in her answer denied that the half share conveyed to her ondeer! P2 was subject to the lifo interest in favour of the plaintiff. Theonly witness called at the trial was Mr. Jnimon, Proctor and Notary, whoattested the deeds PI and P2. Although there is no evidence that Mai-moon Umma is now dead the trial appears to have proeoeded onthe footing that she died .prior to 13th September, 1952, the date on whichthe defendant is alleged to have taken wrongful possession of the premises.
The decision of this case depends on tho interpretation of deed P2.Tho relevant part of this deed reads:—“ I Maimoon Umma in consider-ation of natural love and affection which I bear unto …
Ahiyam Umma …. give grant-, convey, transfer, set over andassure unto tho said donee her heirs executors …. by way ofgift absolute and irrevocable the houses and premises fully described andset out in the schedule hereto …. to have and to hold the saidhouses and premises hereby gifted and convej'ed with the rights and allappurtenances unto the said donee and her aforesaid absolutely foreversubject to the condition, mortgage, lease etc. Subject to the furthercondition that I the donor do hereby reserve my life interest in and to thehouses and premises hereby convej-ed. ” By this deed eight propertieswere gifted and they are described in the schedule. At the end of thisschedule referring to properties 6, 7 and S it is stated as follows.:—“ Whichsaid houses and premises marked Nos. 6, 7 and S in the above scheduleheld by me the above donor upon the above said deed No. 5393 datedJlth May, JSS9, subject however to a life interest in favour of CaderSaibo Kamaldeen of No. 6, Slaughter House Road, Kandy. ”
Admittedly the property No. 7 in P2 is identical with premises No. 2/9,the subject matter of this action. It was contended on behalf of theappellant that the reference to the lifo interest in favour of the plaintiffat the end of the schedule on P2 was a mere recital which is in conflictwith the habendum clause in the deed and that it should therefore beignored. By the habendum clause, it was argued, the property wasdonated absolutely without subject to any restriction to the defendant.
Mr. Jaimon, the Notary who attested the deed stated that he did notinsert tho reservation of tho life interest in favour of the plaintiff in thehabendum clause because five of the eight properties dealt with on thedeed were not subject to a life interest in favour of the plaintiff. Iam unablo to agree with theargument that thereis a conflict between theoperative part of this deed and its recitals. What has been donatedto the defendant are the properties described in the schedule. Theschedule itself sa3's that the lands Nos. 6, 7 and 8 aro subject to thelife interest of the plaintiff. Therefore the defendant cannot now claimthose lands free of that lifo interest. It was. argued by the Counsel forthe appellant that if the deed P2 created a life interest in the lands, 6, 7and 8 in favour of the plaintiff then it is a donation which is void by reasonof non-acceptance by the plaintiff. It is true that although the plaintiff.
has signed P2 as a witness he did not sign it accepting this life interest. ■I do not think that P2 is a deed of donation in favour of the plaintiff.It only contains a stipulation for the benefit of the plaintiff. Such astipulation in favour of a third party can be validly created. Pothicrstates :—“ What concerns the interest of a third person may also be‘ in modo ’ ; that is to say, that although I cannot directly stipulatewhat concerns the interest of a third person, nevertheless, I may alienatemy own property with the charge, that the person to whom I give itshall do something which concerns the interest of a third person. Forinstance, though I cannot stijmlate in my own name directly that youshall make a present to James of Mecrman’s Thesaurus, I may effectuallygive you a sum of money or other tiling subject to the charge of makingsuch a present.”1 But before the third party could suo upon such astipulation lie should have accepted it. This principle was followed byGarvin S. P. J. in Jinadasa- v. Silva?' The facts in that case were asfollows :—P conveyed certain properties to S subject to the agreementthat S was to reconvey the property to P or, failing him, to his brother-in-law Jinadasa if called upon to do so by P or Jinadasa at any timewithin five years from the date of the conveyance on payment of a certainsum of money by P or Jinadasa. P died without exercising his right toobtain a reconveyance. Thereupon Jinadasa sued S to obtain the rightssecured to him by the stipulation. Garvin S. P. J. stated in that case,
“ The question which has been raised and argued before us is this : thestipulation being one which was made in favour of a third party is itactionable by or at the instance of a third party ? That such an agree-ment may be validly made between the parties to a contract such asthis, is, I think, beyond question for the Roman-Dutch-law authoritiesto which reference has been made in the course of these arguments andwhich are collected in the ease of McCullogh v. Fermvoocl Estate Ltd. 3are overwhelmingly in favour of the contention that not only is suchan agreement valid but that when accepted by a third party whomit is desired to benefit by the stipulation it is actionable by the thirdparty and at its instance.” In the instant ease the defendant acceptedthe donation subject to the life interest in favour of the plaintiff in threeof t-ho lands gifted. It is implicit in that acceptance an agreement topermit the plaintiff to possess the three lands during his lifetime. Thedefendant is'nob entitled to resile from that undertaking. The onlyquestion is whether the plaintiff has accepted the stipulation madefor his benefit in the deed P2. There is no evidence that during thelifetime of Maimoon Umma the plaintiff accepted this stipulation. Theright to possess these premises accrued to him only after the death ofthe donor as sho reserved to herself the life interest. Even in t-ho casoof a donation the acceptance can be made after the death of the donorif the fulfilment of the donation is postponed to after the donor’s death;(Maasdorp’s Institutes of South African Lay—-1th Edition, Page 109).Tliero is no reason why this principle should not be adopted in the caseof stipulations in favour of third parties. The plaintiff has stated in
* Pothicr on Obligations Section 71.3 (1932) 31 -V. Tj. Tt. 311.
3 S. A. L. It. 1920 App. Div. 201.
tho plaint that lie was in possession of the premises in question. Thatwould indicate that ho accepted the benefits of the stipulation. Apartfrom that the fact that- he instituted this action to enforce his rights isalso indicative of his acceptance.
Accordingly X would dismiss the appeal with costs.
F£bs.xdo, J.—I agree.
Appeal dismissed.