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that from about January, 1922, the downed lands were given over tohim. The document D 8 shows that in October, 1921, the defendantleased one of the downed lands for a term of one year. The disputebetween the parties appears to have begun after the death of thedefendant's wife.. These facts were relied on by the defendantas proving that the plaintiffs waived tbeir right to insist upona registration of the marriage, and that they were thereby estoppedfrom questioning the defendant’s title.
On behalf of the plaintiffs it was submitted that it was a termof the contract between the parties that the marriage should beregistered, and that this term could not be varied by any oral agree-ment or by the conduct of the parties, but that the variation must beby a notarially attested document as the contract related to aninterest in land. 1 am not convinced that this argument is sound,but it is unnecessary to consider it as it does not arise in the view Itake of the facts.
I am of opinion that the deed No. 5,111 (D 1) contains nothingdetracting from the grant of an absolute title made by its operativewords. In the absence of any words in the deed which without anyambiguity detract from the absolute grant in the operative part ofthe deed, the deed must be construed as having operated to passtitle to the donees named in it. That portion of the deed whichrefers to the taking charge of the properties by the donees clearlydoes not deprive the donees of the dominion conveyed by theoperative words. In my opinion the words that the donges shalltake charge ” of the properties “ from the day of the registrationof their marriage ” and that “ their heirs and assigns forever shallpossess as dowry property ” only indicate, and were intended toindicate, the point of time at which the possession of the doneesand their successors was to begin. Those words are wholly inaptto create a condition precedent before a transfer of any interestcould take place under the deed. I am unable to regard themas even creating a condition precedent before the transfer ofthe right of possession would, take place. To my mind the onlyeffect of those words is to deprive the donees of the right which theywould otherwise have had of insisting upon their right of possessionbeing given immediately. Accordingly, I would hold that theplaintiff’s main contention that the deed passed no interest what-ever fails.
There is one reason why the plaintiffs could not succeed in thisaction in resisting the defendant’s claim to the possession of theland in dispute. The provision in the deed that the donees werenot to have possession until their marriage was registered impliedthat the donees on their part would do all that was necessary tohave the marriage-registered, and that the plaintiffs-would, on theother hand, do on their part whatever was necessary for thatpurpose. The marriage of the donees could not be registered under
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ArumogamVatUamma v.Kanaga-ratnam
the Ordinance until due notice of the registration of the marriagehad been "given under the provisions of the Ordinance. Under theprovisions of sections 23, 24, and’25. the defendant’s wife beingunder 21 years of age, the second plaintiff, her father, should have .given his written consent to the marriage. His refusal to give thatconsent made it impossible for the marriage to be registered. Itis true that the defendant or his wife might have applied to theDistrict Judge for obtaining consent to the marriage, but that theyhad that right makes no difference to the fact that the registration ••of the marriage was prevented by the act of the plaintiffs. Thefirst plaintiff appears to have acquiesced in her husband’s refusalto give the necessary consent to the marriage. While on this pointI would say that I do not believe the second plaintiff when he saysthat the defendant’s wife also objected to the registration of themarriage.
Mr. Hayley on behalf of the defendant-appellant cited the followingpassage from the Laws of England1:—
“ If the terms of an agreement show that the parties contem-plated that a certain thing, as to which there is no expresscovenant, would be done before another thing, as towhich there is an express covenant, is done, it is a questionwhether the agreement can be read as comprising a cove-nant to do the foimer. If the two things are so involved.that the parties cannot be supposed to have intended toimpose an obligation to do one without imposing also anobligation to do the other, then there is, by construction, acovenant to do the first thing (1). But otherwise it is notto be assumed that the parties intended to bind themselvesto do the first thing because they entered into the contractin tbe expectation that it would be done, treating it as athing certain to take place and providing only for the eventof its taking place. In such a case there will usually beno covenant implied to do. the first thing, but if it is notdone, then the express covenant to do other thing does notbecome operative.”
In the deed under consideration there was an express provisionthat there should be a registration of the marriage. That expressprovision implied that the plaintiffs, both or either of them, woulddo whatever was necessary to be done on their part to effect theregistration of the marriage. That covenant is implied by theexpress covenant that the marriage should be registered, and as theimplied covenant-was not performed by the plaintiffs the expresscovenant that the marriage should be registered did not becomeoperative. It follows, accordingly, that the provision in the deedfixing the right of possession to commence as from the day of the
110 Halsbury, Art. 832, p. 479.
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registration should be regarded as not having become operativeand that, in the circumstances, the donees are to be regarded ashaving become entitled to the possession of the lands as from thedate of the refusal of the second plaintiff to consent to the marriageof the defendant with Sellatangam.
It is not necessary to deal with all the issues specificially, but Iwould add in regard to issue 7 that for the reasons given in myjudgment the plaintiffs are not entitled to a cancellation of thedeed in question. I, therefore, set aside the decree of the DistrictCourt, and direct that judgment be entered dismissing the plaintiffs’action with costs. The defendant will have his costs of this appeal.
Dalton J.—I agree.
Appeal allowed.