065-NLR-NLR-V-57-D.-A.-PERERA-et-al-Appellants-and-SCHOLASTICA-PERERA-Respondent.pdf
1955Present : Gratiaen, J., and Swan, J.A. PER ERA el al., Appellants, and SCHOLASTICAPERERA, Respondent
S. C. SO—D. C. Ncgombo, 17,010
Trusts—Resulting trust—Transfer by person in loco parentis—Presumption oj advance-ment—RtbulUibUity-—Trusts Ordinance (Cap. 72), ss. .S3, 84.
If a person transfers property to another to whom ho stands in loco parentisthere is a presumption of advancement, so that a resulting trust under sectionS4 of tho Trusts Ordinance docs not arise in favour of tho transferor. But,under section S3 of the Trusts Ordinance, tho presumption of advancement maybo rebutted by proof that tho transferor did not intend to dispose of the beneficialinterest in tho property unconditionally to tho transferee.
Plaintiffs had deposited a total sum of Rs. 5,000 in favour of their youngersister, the defendant, in the Post Office Savings Bank. Although the accountin the Post Office Savings Bank was in the name of tho defendant^ the Bank passbook was retained by the eldest brother (the 1st plaintiff). The attendantcircumstances showed that tho beneficial interest in the money was intendedto bo “ given as dowry ” to the defendant only if and when she would bo “ givenin marriage ” to a bridegroom approved by the family. Defendant, however,soon after she attained her majority, eloped with and married a man of her ownselection without tho approval of her parents or her brothers.
Held, that when the defendant contracted a marriage without the approvalof her family, she became disentitled to receive the sum of Rs. 5,000. Themoney, therefore, belonged to the plaintiffs.
/^PPEAL from a judgment of the District Court, jNTegombo.
N. E. Wcera-sooria, Q. C., with A. B. Perera• and S. W. Walpita, for theplaintiffs appellants.
A. K. Premadasa, with S. M. H de Silva, for the defendant respondent.
Cur. adv. vult.
May 26, 1955. Gratiaen, J.—
All the plaintiffs, who are the elder brothers of the defendant, had metuith a moderate degree of success in trade or business. Their father washimself a person of some substance, but he became a chronic invalid in1912, with tho result that the plaintiffs very commendably took over theresponsibility of providing dowries in due course for their two unmarriedsisters. Accordingly, a cash dowry of Rs. 5,000, towards which eachbrother made a proportionate contribution according to his means, wascollected and handed over to their elder sister when sho was “ given out ’’in marriage in 1917. In July 19-19, when the defendant was 19 years old,
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3J. >*. B 63064-1,502 (3/58)
a Post Office Savings Bank account was opened in her name with the sameobject in view, and sums aggregating Its. 5,000 were deposited from timeto time to her credit by the plaintiffs. The Bank jjass book was, however,retained for the time being the eldest brother (the 1st plaintiff), andhas never left his custody. The fact that this book was wit hheld from theyoung lady has some significance to the issues arising on this litigation.
In May 1951, the defendant, having but recently attained her majority,eloped with and married a young man of her own selection without the'approval of her parents or her brothers. The plaintiffs claim that in thesecircumstances the sum of P>s. 5,000 provisionally car-marked for her bene-fit never became her property ; she contends on the other hand that themoney had passed to her absolutely as and when each item was depositedin her name with the Savings Bank.
The learned Judge rejected the plaintiffs’ submission, and hckl that“ when they deposited the money they intended that- the defendant shouldhave the benefit of it and that this money should he her dowry ”. Hisdecision was much influenced by the admitted absence of any expressstipulation by the brothers (at the time when the money was deposited)that the right to than- the money would be conditional on her contractinga marriage approved by them.
The circumstances in which the money came to be deposited by theplaintiffs with the Savings Bank in the name of their unmarried sistercertainly miles out the inference that they had committed themselvesirrevocably to the granting of an unconditional gift to her. The brothers‘had no doubt placed themselves in loco parentis towards the defendant,so that the normal presumption of a resulting trust under section SI ofthe Trusts Ordinance does not arise in their favour. Fernando v. For-nando1, Jlfvtalibu r. Ilamccd-. Under section S3 of the Ordinance,however, it was open to the brothers to rebut “the counter-presumptionof advancement ” by proof that they did not intend at the relevant datesto dispose of the beneficial interest- in the monejr unconditionally to thedefendant.
. . Sections 83 and SI of our Trusts Ordinance have introduced the Englishlaw on this subject, and the true principle was recently elucidated in theHouse of Lords b37 Lord Simonds in Shephard v. Cartwright 3. Wherea'man' purchases property in the name of (or transfers property to) astranger, a resulting trust is presumed in favour of the purchaser (ortransferor) ; on the other hand, if the transfer is in the name of a child orone to whom the purchaser or transferor then stood in loco parentis,there is no such resulting trust but a presumption of advancement. Thepresumption may, however, be rebutted, but “ it should not give way toslight circumstances The judgment proceeds to adopt the followingpassage from Snell’s Equity (22nd ed.) page 122 as to the kind of evidence•which would be admissible for the purpose of rebutting the presumptionof advancement in any particular case
(1953) A. O* 431.
» (1018) 20 N. L. R. 244.
3
» 11050) 52 N. L. R. 97.
“ The acts.and declarations of the parties before or at the time of the(purchase) or so immediately after it as to constitute a part of the
transaction, are admissible in evidence either for or against the partywho did the act or made the declaration ; subsequent acts and decla-rations are only admissible as evidence against the party who did ormade them, and not in his favour.”
The decision of the Court of Appeal as to the admissibility of evidence ofsubsequent statements or declarations in favour of the person makingthem has been over-ruled, but the following observations of Denning,
J. in (1953) 1 Ch. 72S at 761 may be accepted as correctly setting outthe general principle as to the presumption of advancement:
“ If there is no (admissible) evidence on either side, an advancementwill unhesitatingly be inferred ; but, if there is other evidence pointingone way or the other, then the tribunal of fact must, at the end of thecase, come to its own conclusion whether an advancement was intendedor not, giving proper weight to the natural inclination of a father (ora person in loco parentis) to provide for the child, but also taking intoaccount all other circumstances. ”
In the present case, the learned Judge correctly, in my opinion, acceptedby implication the evidence that the plaintiffs did not intend an absoluteand unqualified gift to come into operation as soon as each sum of moneywas deposited in the defendant’s name. In other words, he was satisfiedthat the contemplated advancement w as at any rate to be postponed untilthe time arrived for her to receive a dowry. But I cannot agree that shecould ever have been intended to enjoy the beneficial ownership of themoney if she ultimately chose to contract a marriage without the approvalof her family. We are concerned only with the actual intention of thedonors, and not with the desirability or otherwise of parents or personsin loco parentis imposing on a young woman (as a condition of their libe-rality) their own decision as to whom she ought to marry. If one paysregard to the habits and customs of the class of society to which theseparties belong, the inference seems to me irresistible that the beneficialinterest in the money provisionally ear-marked for her benefit was in-tended to be " given as dowry ” to the young lady only if and when shewas “ given in marriage ”, as her cider sister had been, to a bridegroomapproved by the family. She elected instead to contract a marriage,
“ for better, for worse ”, w ith someone of her own selection. Theunfortunate consequence of that decision (which has, one hopes, beenjustified in all other respects) was that she became disentitled to receivea dowTy which would otherw ise have been available to her in accordancewith her brothers’ intentions. The conditions attaching to the completionof the gift having failed, I would allow the appeal and enter judgmentfor the plaintiffs as prayed for with costs in both Courts. The moneybel ongs to them..
Swas, J.—I agree.
Appeal alloioed.