010-NLR-NLR-V-43-CANDAPPA-v.-SUBRAMANIAM-et-al.pdf
SOERTSZ J.—Candappa v. Subramaniam.
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1941Present: Howard C.J. -and Soertsz J.
CANDAPPA v. SUBRAMANIAM et.al.
12—D. C. Jaffna, 124.
Collation—Liability—Gift from parents to children above the others—JaffnaMatrimonial Rights and Inheritance Ordinance (Cap. 48), s. 33-The liability to collation under section 33 of the Jaffna MatrimonialRights and Inheritance Ordinance depends upon whether the giftsreceived by children either on the occasion of marriage or to advancethem in life amounted to more than what the other children have receivedfrom their deceased parents.
PPEAL from a judgment of the District Judge of Jaffna.
N.Nadarajah, for third to sixth respondents, appellants.
C. Nadarajah, for petitioner, respondent.
Cur. adv. vult.
July 11, 1941. Soertsz J.—
The facts from which the questions involved in this appeal arise, maybe stated briefly as follows:-—The deceased intestate died on December 4,1934, leaving six children, four sons, namely, the present petitioner andthe first, second, and seventh respondents, and two daughters, the fourthand sixth respondents.
The petitioner obtained letters of administration, and having adminis-tered the estate, filed the present petition in order to have his accountjudicially settled in terms of section 725 of the Civil Procedure Code.In paragraphs 3 and 4 of his petition he averred that “ the persons
64SOERTSZ J.—Candappa v. Subramaniam.
interested in the estate” were, himself, and his brothers, the first andsecond respondents, and that “ the other respondents are not interestedin the estate and are not entitled to any share thereof in view of the factthat the deceased during his lifetime did settle on each of them property
… with a view to advancement in life
The respondents denied that the donations they had received preventedthem from sharing the estate left by the deceased. They stated that thosedonations were simple donations, implying thereby that they were notliable to collation under section 33 of the Jaffna Matrimonial Rights andInheritance Ordinance (Cap. 48).
At the inquiry there were three issues framed in regard to this contro-versy, namely: —
Was the gift in 1912 in favour of the fourth respondent, her dowry ?
Was the gift in favour of the sixth respondent in 1926 (an error for
1929) a donation of the kind contemplated in section 35 (anerror for 33) of Ordinance No. 1 of 1911 ?
Were the gifts in favour of the seventh respondent in 1928, 1929,and 1933, made for the purpose of advancing him in life? ■
But an additional issue (3) was framed—it is not clear why—calling inquestion the heirship of the second respondent too, although in thepetition for judicial settlement his right to succeed had been admitted.
From the trend of the inquiry and from the judgment it seems clearthat the administrator did not mean to contend that the two daughtersl^d, by operation of section 3 of the Thesawalamaiforfeited their rightto share in the estate left by the deceased, but only that their right toshare was similar to the right of the second and seventh respondents andwas conditional upon their bringing the gifts referred to into collation.
After inquiry, the trial Judge found (a) – “ that the first donation toeach of the daughters …. was dowry set apart as such fromthe time of the marriage and transferred by deed of donation and thatthe second donation to each of them was additional dowry”; (b) thatthe gifts made to the second and seventh respondents “ come withinproperty contemplated by section 33 of Chapter 48, that is to say, giftsmade for the purpose of advancing the donees in life (c) that “ theresult of the findings is that the second, fourth, sixth and seventh respond-ents are such heirs only if they bring into collation the properties theyhave received by way of gift ”.
The learned Judge concluded His order as follows:—“I value all thedonations at half the face value on the deeds …. and holdsecond, fourth, sixth,' and seventh respondents to be entitled to thebalance, if any, to make up their shares of the estate …. Thoserespondents are to state in writing within three weeks of the delivery ofthis order whether they will be satisfied with what they have alreadyreceived or claim a share of the estate on the terms I lay down ”.
The fourth and sixth defendants appeal against these findings and order.It is obvious that the finding of the learned Judge in regard to the deedsof donation in favour of the fourth and sixth respondents in the year 1933,and his order based upon that finding cannot stand. Those donations
SOERTSZ J.—Candappa v. Subra.ma.niam.
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were not challenged and there was no issue in regard to them. Moreover,on the evidence, the trial Judge’s finding that the gifts made in the year1933 were additional dowry cannot be supported.
The only question then is—that is to say, so far as the fourth and sixthrespondents are concerned—whether the gifts in favour of the fourth andsixth respondents in the year 1912 and 1929, respectively were, “ giftsmade by way of dowry or otherwise on the occasion of their marriage ”.The trial Judge has expressly found that although the deeds themselveswere executed several years after the marriage of each of the donees, theproperties involved in them were set apart for the donees as from the timeof their marriage. There is evidence to support this finding, and thefact that other relations of the donees joined the donees’ parents in thesegifts, strongly supports the view that they were meant by way of dowryas is shown by section 3 of the Thesawalamai. That finding of the trialJudge must therefore be accepted, but his order based thereon cannot besustained for the reason that that order involves all the property conveyedby those deeds, whereas the liability created by section 33, Chapter 48,affects only the lands that were given by the deceased parent, namely,the first-named donor. The result is that the fourth and sixth respondentswould, if at all, be liable to bring into collation only the properties orrather the shares of the properties conveyed to them by. the deceased ondeeds P 1 and P 2 and for this purpose, the value to be put upon them istheir value at the date of the donation. The properties in deeds P 3 andP 4 are not liable to collation.
The question remains whether the father’s contribution to these twodeeds constitutes a donation to the fourth and sixth respondents “ above ”what the other children Have received from him. On the evidence inthe case it is impossible to say that it does. For that reason at least,section 33 of Chapter 48 does not apply to P 1 and P 2.
This finding disposes of the appeal itself, but leaves the case in anunsatisfactory state inasmuch as it does not affect the finding of the trialJudge that the second and the seventh respondents are liable to bringtheir gifts into collation. In my opinion these donations cannot, on anysound principle, be differentiated from those to the first respondent, andyet the first respondent has been exempted from collation. Moreover,there is the "fact that in his petition the petitioner did not challenge thegifts to the second respondent. I, therefore, think that this is eminentlya case in which we should exercise the powers vested in us by section 753of the Civil Procedure Code, and consider whether there is occasion forrevision of the orders made in regard to the second and seventhrespondents.
In regard to the donation to the second respondent, the only evidenceis that of the administrator-petitioner that “ the second respondent wasa Police Vidane. One property was donated to him with a face value ofRs. 800 but of actual value of Rs. 1,500 to enable him to give security for ■his office of Sanitary Rate Collector”. From this we are asked to inferthat the gift was made to him in order to advance or establish him in life.
I do not think we shall be justified in drawing the inference. The deed
66
Sabaratnam v. Peter.
itself recites that it is made for love and affection and is not one by theparents alone, but by an aunt as well.
Similarly in regard to the donations to the seventh respondent on theevidence one cannot say with confidence that the purpose of the donationswas to advance or establish him in life, although no doubt, they musthave helped to that end. Moreover, it can hardly be said that thesegifts were above what the other children received. It seems to me thatthe money which the deceased appears to have spent on the education,and professional training of the petitioner can be, more appropriately,described as advances to establish him in life. But in his case too it isnot possible to say that he was unduly preferred.
■For these reasons, I am of opinion that the order of the learned trial.Judge is erroneous. I therefdre allow the appeal of the fourth and sixthrespondents and declare that there is no liability on their part to collate.Acting under section 753 of the Civil Procedure Code, I set aside the ordermade in regard to the second and seventh respondents.
In this view of the matter, there is no occasion to consider the cross-appeal or the-preliminary objection taken to it.
In all the circumstances of this case, I am of opinion that the costsincluding the costs of appeal should come out of the estate.
The case will go back for the consideration by the trial Judge of the'remaining issues and for the ultimate distribution of the estate on thebasis that there was no liability for collation on the part of any of theheirs.
Howard C.J.—I agree.
Appeal allowed.