066-NLR-NLR-V-40-DE-SILVA-v.-MARGARET-NONA.pdf
de Silva v. Margaret Nona.
251
1938Present: Moseley J. and KeunemanA-J.
DE SILVA v. MARGARET NONA.
156—D. C. Galle, 35,318.
Prescription—Deed of gift subject to a condition—Donee to gift a half share ofthe property to his brother—Claim by brother to conveyance—Action toenforce condition.
Defendant’s mother by deed of gift dated March 2, 1923, gifted certainproperty to him subject, inter alia, to the condition that the defendantshall by a valid deed of gift convey one half share of the property to hisbrother (the original plaintiff) on the latter’s arrival from Jamaica.
The plaintiff arrived at Galle in June, 1925, and assumed possession atthe entire property.
On May 10, 1935, the plaintiff demanded a conveyance of half sharefrom the defendant, which was refused a few days later.
Held, that prescription commenced to run against the plaintiff fromthe date on which his demand for a conveyance was refused.
Ismail v. Ismail (22 N. L. R. 476) followed.
T
HIS was an action brought by the original plaintiff against thedefendant to be declared entitled to certain interests set out in deed
P 1 No. 742 which the plaintiff claimed he had acquired by prescription,and for an order that the defendant be compelled to execute deed in hisfavour for the interests in question. The original plaintiff died pendingthe action. The learned District Judge gave judgment for the plaintiff.
N. E. Weerasooria (with him E. B. Wikramanayake and A. E. R. Corea),for defendant, appellant.—The deed Was to be executed in favour of theoriginal plaintiff “ on his arrival at Galle ”. The original plaintiff arrivedat Galle in June, 1925, and took possession of the entirety of the premisesin dispute. His right to obtain a deed accrued to him on that date, andthe cause of action arose on that date. Demand was made on May 10,1935, and this was refused on May 13, 1935, whereupon this action wasinstituted. Plaintiff’s action is prescribed. His right arose immediatelyon his arrival, so that prescription began to run from June, 1925, and hisclaim is now barred. The cause of action arose when plaintiff could havecalled upon the defendant to execute a conveyance in his favour, i.e., “ onhis arrival at Galle ” in June, 1925.
The plaintiff also claims a half share of the premises on the footing thathe had been in undisturbed and uninterrupted possession for theprescriptive period. No act of ouster has been alleged or proved.
H. V. Perexa, K.C. (with him L. A. Rajapakse), for substituted plaintiffs,respondent.—The deed of gift in favour of the defendant imposed a truston him, and the claim against him cannot be barred by prescription—sections 96 and 111 of the Trusts Ordinance. Even otherwise, the causeof action arose when the demand for the conveyance was refused. Tillthen there was no dispute. Prescription did not begin to run till thedate of refusal, i.e., May 13, 1935. The cause of action accrued to theplaintiff only when there was an interference with his right to obtain aconveyance. The words “ on his arrival ” cannot be interpreted literally.They mean “ within a reasonable* time after his arrival ”, where there is anobligation to do an act within a reasonable time there is no breach till
252 .
KEUNEMAN J.—de Silva v. Margaret Nona.
refusal, and that is the starting point for the running of the period ofprescription—Ismail v. Ismail This case is analogous to that of aperson who purchases property on behalf of another who enters into, andremains in possession of the property purchased for him—Senaratne v.
Jane Nona’.
E. B. Wickr amanay a fee, in reply.—The deed does not create a trust.
This form of donation is one that is well known to the Roman-Dutch law,
Perezius on Donations 8<-55-5. It is a gift with a pact annexed. The lawto be applied is therefore the Roman-Dutch law and the English law ofTrusts cannot be invoked. The right to enforce the pact accrued on hisarrival in Galle. Ijlven if these words are given a liberal interpretationthe plaintiff is out of time, 'the cases cited do not apply. In those casesthere was a subsequent agreement between the parties which postponedthe cause of action.Cur adv vult
February 7, 1938. Keuneman A.J.—
This action was brought by the original plaintiff against the defendant,
(1) to be declared.entitled to certain interests set out in deed P 1 No. 742-of March 2, 1923, which the plaintiff claimed that he had acquired byprescription, and (2) for an order that the defendant be ordered to executea deed in his favour for half the lands in question subject to the covenantsand conditions in the deed P 1. Pending action, the original plaintiffdied and the present respondent was substituted in his place.
After trial the learned District Judge entered judgment for the plaintiff,ordering the defendant to execute a deed of transfer forthwith in favourof the plaintiff as executrix of her late husband Cornelis’ estate in termsof P 1. The defendant was ordered to pay the costs of suit, inclusive ofthe transfer deed costs.
The facts of the case are as follows : —
By deed of gift P 1, Francina Hamine, the mother of the originalplaintiff and the defendant, gifted the premises in question to the defend-ant, subject to the condition that donee shall by a valid deed of gift grantand convey one half of the premises to the original plaintiff “ on hisarrival at Galle from Kingston, Jamaica ”, and subject to further■conditions which imposed a fidei commissum on these premises if theoriginal plaintiff died without legitimate children. In point of fact theplaintiff died leaving two legitimate children.
The original plaintiff arrived in Galle in June, 1925, and since thenassumed possession of the entirety of the premises in question. Nodemand for the conveyance was made till May 10, 1935. The defendantreplied by his letter P 2 of May 13, 1935, refusing the request. Thepresent action was filed on October 5, 1935.
The defendants’ Counsel argued that the claim of the plaintiff for aconveyance under the terms of P 1 was prescribed, and that the claim to /the half share on the footing of the acquisition of a prescriptive title wasnot maintainable, as the plaint disclosed no ouster. It was also contendedthat there was a misjonnder of causes .of action. -I think, however, thatthis last contention cannot be sustained in appeal, in view of the fact thatthe answer does not make such averment^ nor is the point distinctly raisedin any of the issues.
1 (1921) 22 N. L. R. 470.2 (1913) -3 G. A. G. S3.
Tambimutlu v. Ratnasingham.
253
The learned District Judge was of opinion *that the deed created a trustin favour of the original plaintiff as regards one half of the premises, andCounsel for the respondent supported this finding by reference to section 96of the Trusts Ordinance. It is, however, not necessary to decide thispoint. The plaintiff at any rate was entitled under the Roman-Dutchlaw to enforce by action the pact in his favour, although he was not oneof the contracting parties (vide Perezius on Donations, Bk. VIII, tit. 55,s. 5). This position is not denied. The only question argued was thatthe plaintiff’s action was prescribed.
As regards that point, great stress was placed on the terms of P 1,which required that the defendant should grant the half share of thepremises on the arrival of the plaintiff at Galle from Kingston, Jamaica.Taking into account the fact that the plaintiff may not have known ofthe existence of the deed P 1, and the fact that something in the natureof acceptance of the terms and conditions of P 1, was required of theplaintiff, I think the meaning of these words is that the conveyanceshould be made by the defendant to the plaintiff within a reasonable timeafter the arrival of the plaintiff at Galle. I think the case falls withinthe decision in Ismail v. Ismail and that prescription runs only fromthe refusal of the demand for the conveyance. It was also contendedthat the reasonable time for giving the conveyance has elapsed long since.In this connexion the fact', that the plaintiff was allowed to be in de factopossession of the interest in question, can be taken into account—videSenaratne v. Jane Nona’. It seems clear that the reasonable time hadexpired when the demand for the conveyance was made and refused in1935, but I am not prepared to hold that prescription began to run at anyperiod earlier than that. If that is taken as the date, the plaintiff’s actionis clearly not prescribed.
In my view, it is unnecessary to consider the other issues and findingsin the case. The appeal must be dismissed with costs.
Moseley J.—I agree.
Appeal dismissed.