DONA PODI NONA RANAWEERA MENIKE v. ROHINI SENANAYAKE

004-SLLR-SLLR-1992-2-DONA-PODI-NONA-RANAWEERA-MENIKE-v.-ROHINI-SENANAYAKE.pdf


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DONA PODI NONA RANAWEERA MENIKE
v.
ROHINI SENANAYAKE
SUPREME COURTFERNANDO, J.AMERASINGHE, J. ANDKULATUNGA, J.
S.C. APPEAL NO 47/91S.C. SPECIAL L.A. NO. 33/91
A. NO. 530/80 (F)
C. KULIYAPITIYA NO. 5741/L5 JUNE 1992
Donation – Revocability – Donatio propter nuptias – When may a point be raisedfor the first time in appeal? – Definition of “gift" – Burden of proof – Ingratitude -Can a single Act constitute ingratitude?
Dona Podi Nona Ranaweera Menike (appellant) married Edmund PereraSenanayake and they had one child Rohini Senanayake (respondent). By DeedNo. 3412 of 11 July 1967 Dona Podi Nona and her husband gifted ApaladeniyaEstate to their only child, a daughter named Rohini (respondent) reserving tothemselves their life iQterest. The gift was given on the occasion of and inconsideration of the marriage of their daughter Rohini to one Yasaratne Pererawho was a co-donee on the said deed. Rohini married Yasaratne Perera on 17August 1967 but the marriage was subsequently dissolved by decree entered inD.C. Kurunegaia Case No. 3629 on 30 July 1975.
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Dona Podi Nona Ranaweera Menike v. Rohini Senanayake
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On 10 April 1979 the respondent Rohini assaulted her parents. Dona Podi Nonaand her husband filed the present action against the respondent Rohini and herex-husband Yasaratne Perera seeking the revocation of the gift on the ground ofgross ingratitude manifested by assault. The District Court gave judgmentallowing the revocation but the Court of Appeal held that the transaction was adonatio propter nuptias and that since the contemplated marriage had takenplace the gift was, as a matter of law. not revocable on account of ingratitude andset aside the judgment.
The point that a donation in consideration of marriage (donatio propter nuptias)cannot be revoked where the marriage has taken place was not taken up in theDistrict Court,
Held:
A matter that has not been raised before might, nevertheless, be a ground ofappeafon which the appellate court might base its decision provided it is a purequestion of law; or, if the point might have been put forward in the Court belowunder one of the issues raised, and the Court is satisfied (1) that it has before itall the facts bearing upon the new contention, as completely as would have beenthe case if the controversy had arisen at the trial, and (2) that no satisfactoryexplanation could have been offered by the other side, if an opportunity had beenafforded it, of adducing evidence with regard to the point raised for the first timein appeal. The matter is not one depending simply on the issue whether the newpoint was one of law, on the one hand, or a question of fact or a mixed question oflaw and fact, on the other.
What the parties may name a transaction to be or how they describe itspurpose is not conclusive. In interpreting a deed the relevant question is whatwas the donor's intention or primary motive? In the case of a gift, the intention orprimary motive should be the enrichment of the donee, for the sake ofenrichment. The crucial test is whether the donor was moved or induced to givehis property simply by the desire to enrich the donee: whether that whichinfluenced his volition was liberality.
The question then is this, was the transfer of Apaladeniya Estate simply madeto enrich the respondent and her prospective bridegroom for the. sake ofenriching them, so that it might be assumed that the property was unconditionally,unalterably and irreversibly given and, as it were abandoned, and. put beyondhope of being ever called, or taken back or recovered by undoing and revokingthe transaction?
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It is for the party seeking the assistance of a court for the revocation of a gift"properly so called” to prove on a balance of probabilities, that the transfer of theproperty was a pure act of disinterested benevolence and liberality. A donationmust be clearly and distinctly proved and must not be presumed as long as someother construction is possible. Where the terms of the deed, ex facie show that itwas a gift, the burden of adducing evidence to show that in fact in substance inreality a donatio propter nuptias, is on the person who claims that it was a specialkind of gift.
(a) Although a gift is generally irrevocable it is revocable
if the donee failed to give effect to a direction as to its application(donatio sub mode), or
on the ground of the donee's ingratitude or
if at the time of the gift the donor was childless but afterwards becamethe father of a legitimate child by birth or legitimation.
A donor is entitled to revoke a donation on account of ingratitude.
if the donee lays manus impias (impious hands) on the donor.
If he does him an atrocious injury
If he wilfully causes him great loss of property
If he makes an attempt on his life
if he does not fulfil the conditions attached to the gift
other, equally grave causes.
(b) Other conveyances not made out of pure liberality like a conveyancepropter nuptias are irrevocable on account of the donee's ingratitude or on .account of the appearance of progeny by birth or legitimation.
In form deed No. 3412 was a gift and therefore ex facie the conveyance wasan act of liberality and not motivated by valuable consideration.
A donatio propter nuptias is in one sense, made in consideration of marriagein that the transfer made is having regard to the fact that a marriage should beentered into. The property is given because, in the sense that in order or so thatthe marriage shall take place. It is the reason why the marriage takes place. It isthat which brings about the promise of marriage or the wedding. The property isgiven, more or less, as something akin to a payment, something given inexchange, a quid pro quo, or reward or compensation. The transfer is promptedby the promise or performance of something by the donee, thereby making it adonatio non mera and not a pure act of liberality (donatio mera).
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In deed No. 3412 the reservation of the life interest showed that theconveyance was not propter nuptias. The enjoyment of the property waspostponed. It was a case of dies cedis sed not venit. The conveyance here was apresent by their parents to their only child simply to enrich her for the sake ofenrichment on the joyful occasion of her marriage, which was an appropriateevent for giving a present. It was not a requite or recompense, not part of thebargain or a sort of exchange, from the donee’s point of view, the transfer of theproperty was not a condition of the marriage. It did not form the consideration orpart of the consideration, in the sense of an inducement or a quid pro quo for theparties getting married. It was a gift pure and simple – a gift properly so called. Inform and substance it was an ordinary gift and therefore revocable on the groundof ingratitude.
The principles that apply to a donatio propter nuptias cease to be applicablewhen a marriage in consideration of which a gift was made ceases to exist.
Whether it was an ordinary gift or a donatio propter nuptias, on dissolution ofthe marriage it becomes an ordinary gift revocable for ingratitude.
Slight acts of ingratitude are insufficient for revocation. What amounts to an actof ingratitude sufficient to warrant revocation must vary with the circumstances ofeach case. Ingratitude is a form of mind which has to be inferred from the donee'sconduct. Such an attitude of mind will be indicated either by a single act or aseries of acts. The donee-daughter by assaulting her donor-parents was guilty ofthe foul offence of ingratitude. Revocation is not however automatic. It requires adecision of the court.
Per Amerasinghe J. (obiter)
“A property which is liable to be returned upon an order for revocation onaccount of ingratitude, does not include the fruits of the property upto the time ofjoinder of issue . .. further, a property donated cannot be claimed for ingratitudeif the donee, in good faith and without any intention to defraud the donor, hadalienated the property by sale, donation, exchange, dowry or transfer on accountof any law, cause whatsoever.’
Cases referred to:
The Tasmania (1890) 15 App. Cas. 223.
Appuhamyv. Atona (1912) 15NLR 311,312.
Manian v. Sanmugam (1921) 22 NLR 249,251.
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Attorney-General v. Punchirala (1919) 21 NLR 51, 57.
Attorney-General v. Croos (1925) 26 NLR 451,459.
Fernando v. Abeygoonesekera (1931) 34 NLR 163-164.
Talagala v. Gangodawila Co-operative Stores Society Ltd.(1947) 48 NLR 472,473,474.
Arulampikai v. Thambu (1944) 45 NLR 457, 461.
Seetha v. Weerakoon (1948) 49 NLR 425, 428,429.
Dassanayake v. Eastern Produce and Estates Co. Lfd[1986] 1 Sri LR 258,262.
Ceylon Ceramics Corporation v. G. G. Premadasa [1986] 1 Sri LR 287,290.
Jayawickrama v. David Silva (1973) 76 NLR 427,430.
In the Matter of an Application of A. K. C/ie//appa(1916) 19 NLR 116,119.
In the Matter of an Application of Notary Abeyratne (1920) 22 NLR 331.
In the matter of the Application of V. Coomaraswamy (1924) 27 NLR 62,63.
Ponamperuma v. Goonesekera (1921) 23 NLR 235,238,239.
Jayasekera v. Wanigaratna (1909) 12 NLR 364,365,366.
In Re the Application ofK. S. Veeravagu (1921) 23 NLR 67, 68.
In Re the Application of Goonesekera (1923) 24 NLR 351
Avis v. Verseput (1943) AD 331, 345, 350, 351, 353, 365, 366, 367, 377, 382,383.
Heen Banda v. Sinniah (1955) 57 NLR 134,135,136.
Timoneyand King v. King (1920) AD 133,139.
Birrell v. Weddel 1926 WLD 69. 75.
Sakir v. Sakir 19 Natal LR 135,137.
Peters v. Peters 1915 NPD 485, 490.
Smith's Trustees v. Smith (1927) AD 482.
Ex parte Executors Estate Everard (1938) TPD 190,199.
Venter v. de Kferc/c(1918) AD 89, 90.
Van Reenen & Trustees v. Versfeld and others 9 SC 161.
CoroneTs Curator v. Estate Coronei( 1941) AD 323,343.
Noorul Hatchika v. Noor Hameen (1950) 51 NLR 134.
Kay v. Kay 1961 (4) SALR 257,261.
Heen Banda v. Sinniah (1955) 57 NLR 134,135,136.
Attorney-General v. Abraham Saibo (1915) 18 NLR 417,427.
Salaman v. Oblas (1918) 21 NLR 410.
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Wataraka Investment Co. Ltd. v. Commissioner of Stamps (1932) 34 NLR266,272, 273.
Upton v. Buchanan (1904) 8 NLR 49 affirmed in 10 NLR 158.
Muttu Carpen Chetty v. Capper (1888) 1 CL Rep 11.
Jayawickrema v. Amarasuriya (1918) 20 NLR 289.
Abeysekera v. Gunasekera (1918) 5 CWR 242.
Edward v. de Silva (1945) 46 NLR 510, 512.
Conradie v. Rossouw( 1919) AD 279.
Public Trustee v. Udurawana (1949) 51 NLR 193,197.
Dunlop v. Selfridge (1915) AC 874.
Kanapathipillai v. Subramaniam (1959) 62 NLR 461.
Collins vc Godefroy (1831)1 B & AD 950.
England v. Davidson (1840) 11 A & E 856.
Ward v. Byham (1956) 1 WLR 496.
Williams v. Williams (1957) 1 All ER 305.
Latchime v. Jamison (1913) 16 NLR 286.
Commissioner of Inland Revenue v. Estate Greenacre (1936) NPD 225, 231,232.
Pillans v. Porter’s Executors 5 SC 420,424.
Theodoris Fernando v. Rosalin Fernando (1901) 5 NLR 280,285.
' Obeysekera Hamine etal v. Jayatilleke Hamine (1905) 1 Balasingham 162,
164,165.
Wijetunga vc Atapattu (1933) 35 NLR 124.
Appuhamy v. Mudalihamy (1866), 1863-88 Ramanathan 226.
John Sinno v. Weerawardene et al (1922) 24 NLR 277.
Van Duyn v. Visser 1963 (1) SALR 445.
Ratnayake vc Mary Nona (1952) 54 NLR 197,200.
Constantine Steamship Une vc Imperial Smelting Co. (1942) AC 154.
Hirji Mulji v. Cheong Yue Steamship Co (1926) AC 510.
Horatala vc Sanchi {1925) 26 NLR 426,427.
Manuelpillai v. Nallamma (1951) 52 NLR 221.225.
Sansoni v. Foenander (1872) 1872, 75, 76 Ramanathan 32, VanderstraatenReports 144.
Hamine v. Goonewardene (1914) 17 NLR 507.
Sinnacuddy v. Vethattai (1935) 4 CLW133.
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Sivarasapillai v. Anthonypillai (1937) 40 NLR 47.
Krishnaswamy v. Thillaiyampalam (1957) 59 NLR 265,269.
APPEAL from judgment of the Court of Appeal.
P. A. D. Samarasekera P.G. with Daya Guruge for 2nd Plaintiff-appellant.
N. R. M. Daluwatte P.C. with Manohara da Silva and Pradeep Kirtisinghe for 1stdefendant-respondent.
Cur. adv. vult.
21st August, 1992.
AMERASINGHE, J.
This is an action concerning the revocability of a gift of a landcalled Apaladeniya Estate belonging to Ranaviraratne ArachchigeDona Podi Nona Ranaweera Menike (hereinafter, sometimes, simplyreferred to as the “appellant”).
The appellant was married to Mallawa Arachchige Edmund PereraSenanayake. The appellant and her husband had one child, MallawaArachchige Rohini Senanayake, (hereinafter, sometimes, simplyreferred to as the “respondent").
A marriage had been arranged between the respondent andPanduwawala Kankanamalage Yasaratne Perera. I shall refer to him,sometimes, simply as “Perera”. On 11 July 1967, by Deed No. 3412,drawn and attested by C. D. C. W. Senaratne, Proctor and NotaryPublic, – a fact which we shall see, later on, is of some importance -the appellant and her husband, reserving to themselves a lifeinterest, donated Apaladeniya Estate to their daughter, therespondent, and to Perera. The deed, inter alia, stated as follows:
No. 3412
DEED OF GIFT Rs. 50,000/-
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Dona Podi Nona Ranaweera Menike v. Rohini Senanayake
(Amerasinghe, J.)
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Whereas a marriage has been arranged and is intended shortly totake place between Mallawa Aratchchige Rohini Senanayake … theonly child of the said donors; and Panduwala KankanamalageYasaratne Perera…
And Whereas the donors have decided to donate the premises …on the occasion of and in consideration of the said marriage … thegift or donation to take effect on the marriage of the donees but to besubject to the life interest (of the donors)…
Now know Ye and these presents witness that the said donors inconsideration of the marriage of the donees do hereby give grantconvey transfer assign set over and assure unto the said donees,subject to the life interest-of the said donors as hereinbefore recited,as a gift to take effect on the marriage of the donees, (ApaladeniyaEstate)… to have and to hold the said premises hereby gifted andassigned or intended so to be . . .for ever from the marriage of thedonees, subject only to the life interest of the (donors)…
And know all Ye by these presents that the said donees. … dohereby gratefully and thankfully accept the above gift or donationmade to them by these presents
The Marriage between the respondent and Perera took place on. 17 August 1967. The marriage, however, was dissolved, after legalproceedings in D.C. Kurunegala Case No. 3629, on 30 July 1975. On10 April 1979, the respondent assaulted her parents. The appellant(and her husband) filed action seeking the revocation of the deed ofgift on the ground of gross ingratitude manifested by the assault. TheDistrict Court allowed the revocation of the gift on the ground of gross 'ingratitude. When the matter came up for hearing in the Court ofAppeal, it was argued that the transaction was a donatio propternuptias, and that, since the contemplated marriage had taken place,the gift was, as a matter of law, not revocable on account ofingratitude. The Court of Appeal agreed with this submission, and, on24 January 1991, it set aside the order of the District Court. Specialleave to appeal to this Court from the order of the Court of Appealwas granted on 29 July 1991.
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Johannes Voet, Commentarius ad Pandectas, (xxiii.1.1), begins hiscommentary on Betrothals (De Sponsalibus) with the followingwords:
Si quae juris nostri portio naturalis fit, si quae usu hominumfrequenta, quae tamen simul togatos in foro saepissime exercet,atque magnis inter se animis committit, est certe ea, qui denuptiis, earumque praeambulonibus sponsalibus, comitibus,dotibus pactisque dotalibus, ac denique quam Plurimismomenti maximi effectibus tractatb instituitur.
Mr. Justice Percival Gane (Selective Voet, 1957) translated thatpassage as follows:
If there is any essential portion of our law, any portion whichis freely employed in the usage of mankind, but whichnevertheless at the same time very often gives such ado to thegowned gentlemen in the Courts, and sets them fighting withgreat mutual spirit, it is surely that portion in which is under-taken the treatment of marriage, of the betrothals which walkbefore it, of the dowries and dotal agreements whichaccompany it, and finally of its very many and weighty effect.
However, reported decisions in Sri Lanka on the subject of whatVoet (xxiii.1.1) referred to as “dowries and dotal agreements”, based .on the Roman Dutch Law, which we have to apply in this case, arenot many; and, there are none, it seems, on the question of therevocability of a conveyance of property given on the occasion of amarriage which has been subsequently dissolved. (There are, ofcourse, several reported decisions on the interpretation of marriagesettlements in the context of specific statutes, like the StampsOrdinance, to which the principles of English Law have been applied,as well as decisions on the revocability of gifts under Kandyan Law,which have no direct relevance to the matter before us.)
Learned Counsel for the the appellant, Mr. Samarasekera, P.C.,submitted that the Court of Appeal was in error for the followingreasons:
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Dona Podi Nona Ranayyeera Menike v. Rohini Senanayake
(Amerasinghe. J.)
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If the matter of revocability was to be decided on a question oflaw, that question should, in terms of Section 75 of the CivilProcedure Code, have been set out in detail in the answer filed in theDistrict Court. In terms of Explanation 2 to Section 150 of the CivilProcedure Code, a Party cannot be allowed at the trial to make acase materially different from that which he has placed on record forhis opponent to meet. In appeal, in terms of the Scheme of ChapterLXI of the Civil Procedure Code, a party cannot be taken by surpriseby an entirely new position being taken up which had not beenraised before.
If the Court of Appeal was right in assuming that it could decide acase on the basis of a question that had not been raised earlier,because it was a question of law, yet it was not entitled to do so inthis case, where the question was not a pure question of law, but amixed question of law and fact. Since the question had not beenraised earlier, the appellant had no opportunity of adducing evidencein support of her contention that the gift was not made propternuptias, but rather, that it was a pure act of liberality and generosity.A decision that the conveyance was irrevocable without the benefit ofevidence on that matter was unjustifiable, since the characteristicquality of revocability, attached to certain kinds of gifts, depended onthe nature of the gift established by the facts.
The co-donee, Perera, who had been made a party to therevocation proceedings, had not objected to the revocation,although, if the transaction was a donatio propter nuptias, it was he,as the person who might have been induced by the gift to enter intomarriage, and not the respondent, who was entitled to complain ofthe revocation.
Assuming that a donatio nuptias had taken place, and assumingthat such a gift is generally irrevocable, if the marriage had takenplace and during the subsistence of the marriage, yet, in this case,the nature of the gift altered upon the dissolution of the marriage andbecame revocable. Then, by reason of the donee-daughter'singratitude, manifested by her laying of impious hands on her donor-parents, the donor-appellant qualified to seek the assistance of the
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Court to revoke the donation. The effect of the dissolution of themarriage on the question of revocability had not been considered bythe Court of Appeal.
Learned Counsel for the respondent, Mr. Daluwatte, P.C.,supported the decision of the Court of Appeal on the followinggrounds:
Although the Court of Appeal decided the matter on the basis ofan argument that had not been adduced earlier, the new submissionrelated to a question of pure law, which, therefore, could have beenraised at any time.
In any event, the point was one that might have been raised at thetrial under issue No. 2 framed by the donor-plaintiff, and the Court ofAppeal had all the requisite material in the record for deciding thatpoint. The question of the nature of the gift in this case had to beascertained from the words in the deed of conveyance itself, and notby reference to extrinsic evidence. Other evidence was inadmissibleand would not have been of avail, and its absence could not haveprejudiced the appellant.
A conveyance on account of liberality is revocable, but not onefor "valuable consideration". A gift “in consideration of marriage" is aconveyance for valuable consideration". It is given in the discharge ofan obligation owed by a parent to a child so that the donee may be ableto shoulder the burdens of marriage. And so, a donatio propter,nuptias isnot made out of pure liberality, but on account of "cause". As a result of,or in consideration, of the marriage gift, a change of status took place.The "consideration" in this case brought about the alteration of civilstatus. Since the marriage took place, consequent upon the making ofthe gift propter nuptias, the contract was complete and irrevocable, andthe subsequent dissolution of the marriage did not make the conveyancerevocable.
A gift in consideration of marriage is an incentive to both the brideand bridegroom, and, therefore, the fact that the revocation was notopposed by the appellant's co-donee, is without significance.
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Dona Podi Nona Ranaweera Menike v. Rohini Senanayake
(Amerasinghe, J.)
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The alleged assault had not been established. In any event, it was acase of"slight ingratitude" and, therefore, revocation was not warranted.A single blow or a single act of ingratitude is insufficient to warrantrevocation.
A matter that has not been raised before might, nevertheless, be aground of appeal on which an appellate court might base its decision,provided it is a pure question of law; or, if the point might have been putforward in the court below under one of the issues raised, and the courtis satisfied (1) that it has before it all the facts bearing upon the newcontention, as completely as would have been the case if thecontroversy had arisen at the trial, and (2) that no satisfactoryexplanation could have been offered by the other side, if an opportunityhad been afforded it, of adducing evidence with regard to the pointraised for the first time in appeal. The opinion expressed on this matterby Lord Herschell in The Tasmania(1), has consistently formed the basisof our law on this question. (See Appuhamy v. Nona m, Manian v.Sanmugam <3), Attorney-General v. Punchirala <4>, Attorney-General v.Croos <5), Fernando v. Abeygoonesekera(e), Talagala v. Gangodawila Co-operative Stores Society Ltd. Pl, Arulampikai v. Thambu(8), Seetha v.Weerakoon ®, Dassanayake v. Eastern Produce and Estates Co. Ltd.(**,Ceylon Ceramics Corporation v. G. G. Premadasa Therefore, thequestion before us is not, with great respect, as it appears to have beensupposed in Jayawickrama v. David Silva,,2), and by the Court of Appealin this case, and by learned counsel in the matter before us, to be' onedepending simply on the issue whether the new point raised was one oflaw, on the one hand, or a question of fact or a mixed question of law andfact, on the other.
Mr. Daluwatte quickly appreciated the difficulty of insisting that thenovel point raised in the Court of Appeal was a pure question of law. Heargued, instead, that the submission relating to revocability might havebeen put forward in the District Court under the second issue raised bythe plaintiff, namely, whether on account of the alleged assault by thedonee, the donor was entitled to revoke the gift given by deed No. 3412?I will assume this to be so. However, were all the facts bearing upon thenew contention before the Court of Appeal? Was the donor prejudiced byhaving no opportunity to adduce evidence to explain that the transaction
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was not a donatio propter nuptias? Mr. Oaluwatte submitted that thenature of the transaction was, in terms of the Evidence Ordinance, onlyascertainable by considering the terms of the deed itself. And, since noprejudice could be caused by the lack of other evidence, no objection tothe raising of the question on the ground of novelty should, he said, besustained.
Although Mr. Daluwatte raised them, I do not need to, and therefore,do not consider either the large question of the admissibility, in general,of extrinsic evidence to contradict, vary, add to or subtract from theterms of written agreements, or the equally broad question whetherextrinsic evidence might be adduced for the purpose of showing themeaning or supplying the defects of an ex facie ambiguous or defectivedeed. It was neither the appellant’s case, nor that of the respondent, thatthe deed in the case before us was ambiguous or defective. Nor dideither party seek to contradict, vary, add to, or subtract from its terms.; MrDaluwatte said that the Court of Appeal had properly done so, andinvited us also to decide the question of the nature of the deed solely byreference to its terms. I am quite content to do so, for I think, that such anapproach does, in the circumstances of this case, lead me to a justresult.
However, if we should only look at the Deed, how should I consider itsterms? I should like to refer to certain decisions relating to theinterpretation of Deeds, which I think, are helpful in deciding the matterbefore me. The emphasis in the following passages is mine.
In the matter of an Application of A. K. Chellappa(,3>, the question wasthis: What was the character of the conveyance for the purposes of theStamp Ordinance? The deed had said that the conveyance by theparents to their daughter was a “settlement by way of mudusam. DeSampayo, J. (at p. 119) explained that
“mudusam Property in Jaffna law is distinguished on the onehand from dowry and on the other hand from acquired property. Itsignifies inherited property, and the word can only be regarded asemployed here to indicate that the donee was to hold the subject ofthe gift as inherited property, and not a dowry or acquired property.It does not by any means satisfy the definition of ‘'settlement" in theStamp Ordinance”.
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Dona Podi Nona Ranaweera Menike v. Rohini Senanayake
(Amerasinghe. J.)
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The affidavits submitted to clarify the nature of the transaction werenot convincing. His Lordship said:
“I think that a notary or party who wishes to brings an instrumentwithin a particular description for the purpose of regulating thestamps must see that the instrument itself discloses its nature.”
In that case Wood Renton, C.J. said:
“There must, I think, be something in the instrument itself toshow that it is a settlement within the meaning of the statutorydefinition. The mere use of the term “settlement” cannot makeit one. Nor can any inference in favour of the appellant’scontention properly be drawn from the term mudusam. I aminclined to think that the notary had inserted the word“settlement” in the deed with a view to evade the stamp dutywith which the instrument was properly chargeable. But, bethat as it may, the instrument itself is simply a deed ofdonation. No authority was cited to us in support of theproposition, and in the absence of authority, I decline to hold thatan instrument of this nature can be changed from a deed of gift intoa settlement by extrinsic evidence.. .
In the matter of an Application of Notary Abeyratne <M where thequestion was whether the deed was properly stamped in terms of theStamps Ordinance, the Court held that the decision in Chellappa wascorrect and applicable, the extrinsic evidence adduced, in any event,being “insufficient”.
Following the decisions in In re A. K. Chellappa <,3>, and In reAbeyratne m, (both of which were cases relating to the interpretation ofthe Stamps Ordinance), Bertram C.J. in In the Matter of the Applicationofv. Coomaraswamy (,5>, said:
“In determining this question we have to look at the terms of thedocument itself. We are precluded from making any inquiry into thecircumstances under which it was given, and considering anyevidence aliunde as to the nature and the purpose of the deed …
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We have, therefore, to ask ourselves whether upon the face ofthe document it is in substance a deed of gift. For that purpose itdoes not matter what it may be called. We have to determine fromwhat appears within the four corners of the document its essentialnature.”
In Ponnamperuma v. Goonesekera m, De Sampayo, J., it seems wassomewhat more flexible in his approach than Bertram, C.J. had been inCoomaraswamy, and not altogether averse to going beyond the fourcorners of the deed in ascertaining its nature. His Lordship said at p. 239as follows:
It is to be noted that the promise and the actual gift was not tothe fifth defendant but to Karonchihamy, so that an element of thiskind of donation is absent. Moreover, neither the informal writingnor the deed shows that the gift was given as an inducement forthe marriage. They do not even call it a dowry. Lastly, it wasrevoked with the concurrence of the donee herself, and not at the'instance of Juvanis Silva alone. Both in form and substance it is anordinary gift, though the promise may have been given on the .occasion of the marriage between the first defendant andKaronchihamy. I should say that the nature of the gift, if it is to beclaimed as being of a special kind, should be disclosed in theinstrument itself. But even if extrinsic oral evidence is admissible, Ithink the evidence falls far short of what is necessary. The onlyevidence on the point is that of the fifth defendant, and all that hesays is: “I am married to a niece of plaintiff's vendor Juwanis in1904. Juvanis agreed to give as dowry half of Bamboragewatta." Inmy opinion the gift cannot be considered as a donation propternuptias in the true sense of the expression.”
The Court of Appeal had before it (at pages 198-212 of the Brief) theterms of Deed No. 3412. What was the nature of the transactionaccording to its terms? It is described in the caption of that document asa "Deed of Gift. Is the descriptive heading in the deed, calling it a “deedof gift”, not, Prima facie, indicative of its nature? It is also described in thebody of the document as a “gift or donation". Moreover, in thatdocument, the givers describe themselves as “donors”, the recipientsare described as ”donees" who accept the land as “a gift or donation".
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The property is given "as a gift to take effect on the marriage of thedonees", and the property is said to be “gifted and assigned”. The“donees" accept the gift ‘gratefully and thankfully'. Does this not indicatethat the property was being received as a consequence of an act ofliberality rather than as something obtained as a matter of right? In thecircumstances, may we not, with justification, say, as Wood Renton, C.J.did in Chellappa (supra), that the “instrument was simply a deed ofdonation" and not a marriage settlement? Should we not, as DeSampayo, J. did in Ponnamperuma v. Goonesekera, (supra), note thatthe donors “do not even call it a dowry” and conclude that the “giftcannot be considered as a donation propter nuptias in the true sense ofthe expression”? Having regard to the words used, should we, notconclude that the transaction was a “gift", as Mr. Samarasekeracontends, and not, as Mr. Daluwatte submits, a “dowry”? I think it was agift at least in form. Might we also conclude, as the Court did inPonnamperuma (supra), that it wqs a gift in substance?
It has been laid down in several decisions that we ought to ascertainthe “real”, “actual", “essential" nature of a transaction, what it was “insubstance”, what it was “in fact”, regardless of the labels and technicalphrases or words, the parties, or their notary, might have chosen toemploy. For one thing, the parties may deliberately use inaccurate termswith ulterior purposes, such as evading the provisions of the StampsOrdinance, as, for instance, Wood Renton, C.J. found fn Chellappa(supra). Further, the nature of a document is a question of law to bedetermined by a court; and in doing so, a court does not permit itself to' be misled by the terminology used in the document.
In Jayasekera v. Wanigaratna m, Hutchinson C.J. observed: “The factof the deed being called a “deed of gift" cannot make any difference if itis clearly proved what the real nature of it was.“ In Re the Application of
K.S. Veeravagu m, although the deed of conveyance from the parents totheir daughter described it as a “dowry deed”, and although in theoperative portion it purported to convey the lands “by way of dowry inconsideration of the marriage” of the daughter, it was held that it was infact a deed of gift. De Sampayo, J. observed that “The donee hadalready been given in marriage, but as, under the customary lawprevailing in Jaffna, a dowry may be given at, before, or after themarriage, the fact of the marriage being prior to the deed would notmake it any the less a dowry, if in fact, it was one.”
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Veeravagu (supra) was followed with approval by Schneider, J. In Rethe Application of Goonesekera m. In that case, counsel contended thatthe deed under consideration was executed by a Muhammadanhusband in favour of his wife after the consummation of the marriage forthe mahar, which under the Muhammadan law, a husband is under anobligation to pay to the bride, and that, therefore, the consideration forthe deed was a debt due. As such, it was for a pecuniary considerationand was a transfer. Schneider, J. rejected that submission, observing that
.. the instrument must be looked into, and the actual consideration forthe transaction gathered from it. It is of no importance what the parties toit may call or describe the transaction . .. The real consideration for thedeed in question is not money or its equivalent paid by the wife to thehusband, but that with which the husband dowers the wife inconsideration of her marriage…”
Veeravagu (supra) and Goonesekera (supra) were followed withapproval by Bertram, C.J. and Jayewardene, J. In the matter of theApplication of V. Coomaraswamy<15). The document in that case statedthat "in consideration” of the sum of Rs. 1500 agreed to be given by thefather to his daughter as "dowry money", he transferred certainmortgage bonds to her. Bertram, C.J. said that the Court had todetermine the “essential nature” of the document and whether it was “insubstance a deed of gift” and “for that purpose it does not matter what itmay be called.”
The view that, what the parties may name a transaction to be, or howthey describe its purpose, is not conclusive, was also shared by DeSampayo, J. in Ponnamperuma v. Goonesekera (supra). In that case anuncle had conveyed property to his niece, describing the transaction asa donatio mortis causa. De Sampayo, J. at p. 238, however, observedthat what the donor and his notary meant in so naming the gift was “notapparent", and decided that it was “obvious" that it was a gift inter vivos.
Whether the transaction in this case was a “gift” or not would dependon whether the legal criteria for ascertaining whether there is a “gift” aresatisfied. A “gift” or, as it is sometimes called, a “donation", is,technically, in its narrower sense, a giving or promising of a thing withoutcompulsion or legal obligation or stipulation for anything in return, freely,out of sheer liberality or beneficence. (Voet, Commentaries ad
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Pandectas, 39.5.1; Grotius, Inleidinge tot de Hollandsche Rechtsger-leedheid, 3.2.1.2; Van Leeuwen, Het Roomsch Hollandsche Recht,Vol. 2, p. 236 and Censura Forensis, 1.4.12.1; Vander Linden,Rechtsgeleerd, Practicaal en Koopmans Handboek, p. 213; Maasdorp,Institutes of South African Law, 8th Ed. Vol. Ill, p. 52; Nathan, TheCommon Law of South Africa, Vol. 1, 2nd Ed. p. 1153 and p. 1163). Therelevant question is: What was the donor’s intention or primary motive?(Windscheid (op. cit)). In the case of a gift, the intention or primarymotive should be the enrichment of the donee, for the sake ofenrichment. Savigny (System des heutingen romischen Rechts, Vol. 4paragraph 142) points out that an essential element of a donation is thedisinterested voluntas on the part of the giver who must be moved solelyby the utilitas or commodum of the receiver, and not his own advantage.The crucial test is whether the donor was moved or induced to give hisproperty simply by the desire to enrich the donee; whether that whichinfluenced, his volition, was liberality. (See per Tindall, J.A., in Avis v.Verseput(20), citing Voet, Commentarius ad Pandectas, Van Leeuwen,Censura Forensis, Ulirk Huber in Praelectiones ad Inst. 2.6.4 andHeedensdaegsche Rechtsgeleertheyt). A motive bestimmungstrund -for a gift may be one of several things; it may, for instance, be vanity,publicity, the force of public opinion, duress, personal advancement orsome other selfish aim, or affection or charity. (See per Watermeyer,A.C.J. in Avis v. Verseputm, at p. 353, and at p. 382 per Fischer, A.J.A.in the same case). A motive of this kind, it has been said, may explainthe reasons for forming an intention to enrich someone else.(Windscheid, Lehrbuch des Pandektenrechts, Vol. 2. paragraph 365).However, if a transfer of property is to be regarded as a “gift" the personto whom something is given must be given that thing with the intention ofenriching the donee, for enrichment's sake, whatever the remote,explanatory purposes lurking in the background for doing so may be.(Windscheid,op.cit;J. E. Goudsmit, Pandekten-systeem, Vol. 1paragraph 68; Avis v. Verseput, supra, at pp. 382-383 per Fischer, A.J.A.). I do not wish to enter into the difficult, albeit interesting, philosophicaldebate on “intention v. motive”. I believe the requisite state of mind for• deciding whether there was a gift in this case is clear enough.
The question for us is this: Was the transfer of Apaladeniya Estatesimply made to enrich the respondent and her prospective bridegroomfor the sake of enriching them, so that it might be assumed that the
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property was unconditionally, unalterably and irreversibly given and,as it were abandoned, and put beyond hope of being ever called, ortaken back or recovered by undoing and revoking the transaction?Voet says (xxxix.5.5) that “to donate is nothing else than to sacrificeand to abandon” (donare vero nihil aliud est, quam jactare & perdere)and he says (xxxix.5.3) that when something is given as a gift, it isgiven so that "in no event is it to come back to himself”. (Nullo causead se reverti) Cf. also Heen Banda v. Sinniah (2,). Or was the truepurpose, was the primary motive or intention, in transferringApaladeniya Estate to induce, prompt and bring about the marriage?Was the property given because of the promise of marriage or oncondition that the marriage took place – so that the donor could, with 'justification, have "changed his mind" (Voet xxxix. 5.22. andxxxix. 5.35) and taken steps to reverse, put an end to, undo, andrevoke the transaction, if the marriage did not take place?
Although a gift, in the narrow, technical and "proper” sense, had tobe an act of pure liberality, certain types of transactions which weremoved or induced by other considerations, such as a conveyance onaccount of marriage (donatio propter nuptias) or in connection with abetrothal (sponsalita largitas) were, nevertheless, called gifts. Judgesand jurists, no less than the man in the street, have, over a longperiod of time, described dowries and conveyances on the occasionof marriage as “gifts”. Although in Ponnamperuma (supra) DeSampayo, J. distinguished between a gift and a donatio propternuptias, yet in Veeravagu (supra) His Lordship at p. 68 said that “Adowry, though it may be given in consideration of marriage, isnevertheless a gift.” On the other hand, Hutchinson, C.J. inJayasekera v. Wanigaratna (supra) at pp. 365-366 observed thedistinction between a “pure gift” and a “dowry”. (I have, later on,more fully quoted the statement of Hutchinson. C.J.). Because theword donatio, in the Roman and Roman-Dutch law, was used both ina narrow, technical, sense and in a wide, popular, sense, it becamenecessary to attach qualifying words and phrases to distinguishbetween the ways in which the term donatio was used to ensure thatthe special rules applicable to “gifts”, in the narrower, technical,sense, would be applied in appropriate cases. Some writers (e.g. seeMackeldey, Systema Juris Romani, pars. 466) distinguish between apure act of generosity (donatio mera) and one that is prompted
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by the performance of something by the donee (donatio non mera).Huber (Hed. Rechts. 111.14) seems to have taken a similar view. Hedistinguished between donations arising from liberality, pure andsimple, which were described as eygentlyke – genuine – on the onehand, and quasi – donations – oneygentiyke – arising from someinducing reason (die om bewegende reeden geschiedf), on the other.Gifts to encourage and promote marriage (voorzetten van houwelyk)were regarded by Huber as quasi-donations.
Although Voet seems to have had some difficulty with regard togifts made in recompense of benefits or services which a donorneither was, nor believed himself, legally bound to remunerate -donatio remuneratoria -, Voet (xxxix. 5.3) entertained no doubt thatconveyances made on account of marriage, or in connection with abetrothal, when they are called “gifts”, are “improperly so called” -impropriae; and he distinguished them from a "sheer donation”between betrothed persons – distincta omnino a simplici intersponsum & sponsam donatione. We are not concerned withremuneratory gifts in this case, and fortunately so, for the authoritieswere hopelessly divided on whether remuneratory gifts weretechnically qualified to be treated as donations or not. Earlier(xxxix. 5.1). Voet distinguished between a gift (donum) and a duty-gift(munus). A gift, he said, is the name given to a
“thing furnished of one’s accord without any need of right orduty, and as to which there is no blame if they are not furnished,while some praise generally goes with them if they arefurnished. But a duty-gift is properly one which we undertake ofneed, by law or custom or at the command of one who has thepower to give such a direction, instances are a'birthday presentand a wedding present.”
It is for the party seeking the assistance of a court for therevocation of a gift, “properly so called", to prove, on a balance ofprobabilities, that the transfer of the property was a pure act ofdisinterested benevolence and liberality. (See Timoney and King v.King(22), Birrell v. Weddell(23), Sakir v. Sakir(24), Peters v.. PeterstZ5>,Smith's Trustees v. Smith<26), Avis v. Verseput (supra) at 345 and 377;Ex parte Executors Estate Everard (27), Kay v. Kay t32), (supra):
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Maasdorp, op. cit. p. 601. Voet (xxxix. 5.5) says that "a donation isnot presumed in doubt so long as another inference can be drawn.Thus he who sets it up. even by way of defence, ought to prove it. forthe reason that no one is believed to be readily willing to sacrificewhat is his and to donate is nothing else than to sacrifice and toabandon.” A donation must be clearly and distinctly proved and mustnot be presumed as long as some other construction is possible.(Venter v. de Klerckm), Timoney and King v. King122', Avis v.Verseputm). It cannot be gathered from loose expressions of a desireto bestow a gift, but must be manifest from the acts and language of• the donor. (Van Reenen's Trustees v. Versfeld and Others<29) Avis v.Verseput, (supra)-, Voet 39.5.5; Grotius, 3.2.4; Maasdorp p. 54).
A determination of the question whether a transaction is a gift ornot is important for several reasons. A “gift”, in the narrower, technical' sense, and therefore, as some jurists would say, a gift “properly socalled”, was, generally, subject to compliance with certain formalitiesfor its validity. Since, inter alia, it was deemed to be desirable torestrain generous, impulsive liberality of the moment (cf. Coronet'sCurator v. Estate Coronetm, Avis v. Verseput, (supra), at p. 365),compliance with certain formalities were insisted upon in theformation of a valid contract of donation. This was expected to givethe donor time for reflection, so as to put him on his guard with regardto the prudence of depleting his assets, and also to give him theopportunity of considering the propriety of adversely affecting theinterests of his heirs. Whether we should regard the gift in this caseas arising from pure liberality and, therefore, whether we shouldregard it as being eygentlyke – "genuine" – and classify it as aspecies of donation “properly so called” (ad propriae donationisspecies), does not matter with regard to the formalities relating to themaking up of a valid contract. The transaction in this case related toimmovable property. As such, it was a matter governed by thePrevention of Frauds Ordinance. That it might have been a donatiopropter nuptias or not, makes no difference, (See Noorul Hatchika v.Noor Hameen)<3,). The transaction in the case before us, as we have< seen at the outset, was executed by a notary, it was, therefore, madei in compliance with our law on the subject. And so, the condition of avalid contract that the requisite forms or modes of agreement (if any)should be observed, was satisfied in this case.
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Another consequence of deciding that a conveyance of propertywas a “gift" in the narrower, technical sense, and therefore, “properlyso called”, was this: Although a gift is generally irrevocable (Grotius,Inleidinge 3.2.16) Nathan, (op. cit. 1163)), it is revocable (1) if thedonee failed to give effect to a direction as to its application (donatiosub modo); (2) on the ground of the donee’s ingratitude; or (3) if atthe time of the gift the donor was childless, but afterwards becamethe father of a legitimate child by birth or legitimation. (R. W. Lee,Introduction to Roman Dutch Law, 5th Ed. 289). On the other hand,conveyances that were not made out of pure liberality wereirrevocable, even if the donee was guilty of ingratitude orsubsequently had legitimate children. (See per Tindall, JA andWatermeyer, ACJ in Avis v. Verseput {supra) followed with approvalper Ramsbottom, JA in Kay v. Kay<32>. See also Heen Banda v,Sinniah{:a). A conveyance propter nuptias, not being an act of pureliberality, and, therefore, technically, in the narrower sense, not beinga “gift" (at any rate, not a “gift” properly so called), is irrevocable onaccount of a donee’s ingratitude or on account of the appearance ofprogeny, by birth or legitimation. (Voet, xxxix. 5.25 and 34; Lee, ibid.;Nathan, (op. cit. 1164).
Mr. Daluwatte argued that, .in terms of the deed of conveyance, therecital of the fact that a marriage had been arranged and was to takeplace shortly, in the context of the statements in that deed that thedonation was to “take effect on the marriage”, and that the doneeswere to have and to hold the property "from the marriage of thedonees", meant that the phrase “in consideration of” the marriage ofthe donees necessarily implied that the conveyance was in factmade in. the discharge of a parental obligation to give a dowry. Thiswas, he submitted, the “valuable consideration" of the contract ofdonation. It showed, he said, that there was "cause”. In thecircumstances, the conveyance was not a mere act of liberality. Itwas not a pure gift that was revocable, but a donatio propter nuptiaswhich was a transaction for “valuable consideration”. The existenceof “vaiuable consideration" meant that, once the contemplatedmarriage had taken place, the transaction became unalterable andirreversible. The donor could no longer change her mind. Thetransaction could not be undone. It could not be revoked. Theproperty was beyond recall and recovery. A subsequent dissolution
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of the marriage had no effect. It was of no avail. The related, butdistinguishable, concepts of “consideration”, justa causa, “intention",and "motive”, it seems are, in one way or another, found inMr. Daluwatte’s argument.
Mr. Daluwatte referred us to Holland’s Jurisprudence in support ofhis submissions. In that work, (1910, Eleventh Ed. pp. 285-286), indescribing contracts whose object is "alienation”, Holland stated asfollows:
An alienatory contract may be a mere act of liberality on oneside, or each party may intend by means of it to secure someadvantage for himself. In the former case it is a contract to give;in the latter, a contract to exchange…
… In Roman Law and the derived systems, ungratefulconduct on the part of the beneficiary would be ground for arescission of the gift
Gifts in contemplation of marriage, which is, in the languageof English law, a “valuable” consideration, are not considered tobe mere liberalities. The rules therefore which regulate thepresents made to the husband by means of the Roman ‘dosr,and the presents made to the wife by means of an Englishjointure, or marriage settlement, are not those which wouldregulate merely “voluntary” agreements.
The English concept of “consideration” may be relevant inconsidering certain contracts, such as transactions relating to thesale of goods (Attorney-General v. Abraham saibo (34>, or inconstruing certain statutes such as the Registration of DocumentsOrdinance – e.g., see Salaman v. Obias (35), and the StampsOrdinance-e.g.,.see Waharaka Investment Co. Ltd. v. Commissionerof Stampsm, see also Weeramantry, The Law of Contracts, atpp. 44-48 and 200-221). However, there is no dispute that in thematter before us, the applicable rules are those of the Roman DutchLaw – what Holland called a “derived system” from the Roman Law -and not the English Law; and, therefore, the question whether therewas “valuable consideration” in order to make, and which made, the
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contract valid and enforceable, is, strictly speaking, irrelevant for ourpurposes. Indeed, according to Holland (op. cit. 280, citing Upton v.Buchananm, what we required in "Ceylon” (as Sri Lanka was thenknown) was supposed to be no more th§n this: that an agreement, inorder to be binding, should be founded on a redelijke oorzaak, acausa legitima – some reasonable and permissible ground for theconsent of the parties. Voet (2.14.9) said that a promise would bebinding if it had been given serio et deliberatio animo. The usefulnessat all of the concept of causa in our law, in respect of contractsgoverned by the Roman-Dutch Law, has been seriously doubted.(E.g. R. W. Lee, Introduction to Roman Dutch Law at p. 224 andAppendix F; Weeramantry (op. cit. at pp. 254-255). In any event, inour law relating to contracts of the kind before us, causa is not theequivalent of “valuable consideration". It is not a quid pro quo. Ingeneral, what is required is that a promise should be seriously anddeliberately made. The view that, for the validity of transactions towhich the Roman-Dutch Law is applicable, the English lawrequirement of "valuable consideration”'is unnecessary, despitesome earlier erroneous decisions (e.g. see D.C. Colombo 53 775(1871) Vander Straaten 192; C.R. Negombo 33605, (1889) 3 SCC70), has been consistently recognised by our Courts before and afterUpton®7', (cited by Holland and affirmed in review in 10 NLR 158).E.g. See Muttu Carpen Chetty v. Capper13*'-, Jayawickrema v.Amarasuriyam; Abeysekera v. Gunasekera <<0); Edward v. de Silva1*"-,following Conradie v. Rossouw®"; Public Trustee v. Udurawana(43).One might, in the circumstances, be pardoned for being somewhatsurprised that we see again in this case, to which the English Lawhas no application, what Lord Dunedin, in Dunlop v. Selfridgem,described as, a “budding affection … for the doctrine ofconsideration."
In any event, it must be understood that whether the words used ina deed indicate the existence of “valuable consideration” or not,depends on the construction to be properly placed on that, particular,deed. Thus in Kanapathipillai v. Subramaniam1*5' where a father hadgifted two lands to his son "for and in consideration of love andaffection”, the fact that the deed went on to state that the transfer wassubject to the son discharging a debt owed by the donor did notmean that it was a transfer for “valuable consideration”. Sansoni, J.
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(H. N. G. Fernando, J. agreeing) held at p. 463 that, although the donorwould undoubtedly benefit to a certain extent, yet the transfer was for“the consideration recited in the deed”, namely, “love and affection”, andnot “a transfer for valuable consideration." I have already explained thatin form, the deed in the case before us was a gift and, therefore, theconveyance was ex facie an act of liberality and not motivated by"valuable consideration”. Whether, having regard to its terms, it was alsoin substance a gift, is a matter I shall refer to later on.
Mr. Daluwatte suggested, that the giving of a dowry was a dischargeof a 'duty' on the part of the donor and that the discharge of that 'duty' wasthe “valuable consideration" in the contract of donation before us. Possibly, incertain circumstances, in Roman Law, a father might have been compelled,even against his wish, to give a dowry to his daughter. (See D. xxiii. 2.19;Voet xxiii.3.8). I know of no such legal duty on a parent today in Sri Lanka.Moreover, the discharge of a legal duty cannot be propefly regarded as“valuable consideration". (E.g. See Collins v. Godefroyw England v.Davidsonm; Ward v. Byhamm Williams v. Williams<49); A. L. Goodhart,Performance of an Existing duty as Consideration, 72 LQR 490;Weeramantry, op. cit. p. 231).
If Mr. Daluwatte meant to suggest that the promise to conveyApaladeniya Estate was in pursuance of the donor’s moral obligations,that too would not be “valuable consideration”, for moral consideration isnot "valuable consideration”. (E.g. see Latchime v. Jamisonm). In fact,as Lord Wright has pointed out (Ought the Doctrine of Consideration beabolished from the Common Law?, (1936) 49 Harvard Law Review 1225at p. 1235), they are contradictory notions. The conveyance in this casemay not have been a donum, but rather a munus – a duty-gift. (See Voetxxxix. 5.1; Avis v. VerseputiZ>); Commissioner of Inland Revenue v.Estate Greenacre(S,), at 231). But that is another matter.
If we should at all be inquiring into the matter from the point of viewof "valuable consideration”, as Mr. Daluwatte seems to suggest weshould, ought we then not to be asking ourselves What was theconsideration moving from the donee in return for the gift ?(cf. Weeramantry, op. cit. p. 236 et seq.); What was the quid pro quofor Apaladeniya Estate?; rather than asking ourselves: What was theconsideration moving from the donor ? Although the existence of
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"valuable consideration" is not essential for the validity of the contractbefore us, ascertaining whether the donor transferred the property onaccount of something promised or performed in return, would, I think,clarify the donor's intention and help us decide whether theconveyance was or was not in substance the pure act of liberality itappears to be in form. Was it the marriage or promise of marriage onthe part of the donee that led the donor to transfer ApaladeniyaEstate? Was the marriage the consideration for, – in the sense of thequid pro quo, the reason for, that which brought about, a conditionprecedent to, – the transfer? And, in turn, was the transfer theconsideration for,- in the sense of the quid pro quo, the reason for,that which brought about, a condition precedent to, – the marriage?(Cf. Jayasekera v. Wanigaratna ('7)).
Mr. Daluwatte submitted that the gift was given to the donees toenable them to shoulder the burdens of marriage, and, therefore, thetransaction was a donatio propter nuptias. Voet (xxxix. 5.25) followedby analogy in Pillans v. Porter's ExecutorslK>. See also Commissionerof Inland Revenue v. Estate Greenacrels' said that a dowry ordonation propter nuptias is “improperly" called a gift, since an“onerous" rather than "lucrative" title is given for the “shouldering ofthe burdens of marriage” to a prospective bridegroom who wouldotherwise not have been likely to “take to wife an undoweredwoman".
Easing the burdens of a child’s marriage may be a desirable andcommendable purpose. However, doing something about it, may ormay not be an act of pure liberality. If, a conveyance of property ismade as an incentive to take on the responsibilities of marriage byeasing its financial burdens, which the parties may otherwise beunable, or find difficult, to bear, it might, perhaps, in the light of suchexplanatory circumstances, be more easily regarded as a donatiopropter nuptias, rather than as a pure gift – an act of mere generosityand liberality. Yet, in the end, if the transaction is said to be a donatiopropter nuptias, it must be established by sufficient evidence that thedonor made the gift because the marriage, in terms of the donee’spromise, would take place. A transfer donatio nuptias is not absoluteand unqualified. It is conditional. The gift is propter nuptias because
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there is the promise of marriage or marriage by the donee in returnfor the gift. The “consideration for” the gift is the promise of marriageor marriage by the donee.
And so,, a donatio propter nuptias is, in one sense, made inconsideration of marriage in that the transfer made is having regardto the fact that a marriage shall be entered into. The property is givenbecause, in the sense that in order or so that, the marriage shall takeplace. It is the reason why the marriage takes place. It is that whichbrings about the promise of marriage or the wedding. The property isgiven, more or less, as something akin to a payment, something• given in exchange, a quid pro quo, or reward or compensation. Thetransfer is prompted by the promise or performance of something bythe donee, thereby making it a donatio non mera, and not a pure actof liberality (donatio mera). In the case of a donatio propter nuptias,the property may also be said to have been given in consideration ofmarriage, but in the sense that it is given merely by reason of, or onaccount of, or having regard to the fact or circumstance of, ormotivated by, or on the occasion of, the marriage. Perhaps thedistinction between a donatio propter nuptias and an ordinary giftgiven on the occasion of a marriage might become somewhat clearerif I might say this: People do not marry because of the weddingpresents – the gifts – they might receive; nor are wedding presentsgiven to bring about the marriage. A wedding present is a pure act ofliberality, unconditionally given, without any sense of compulsion orobligation, with no hope of recall or recovery if the marriage does nottake place. A donatio propter nuptias is not.
There are some reported decisions of our Courts that support theview that a conveyance in consideration of marriage is not an act ofpure liberality. The reasoning appears to be this: where something isgiven because the recipient .has promised to marry or married,because the transfer is prompted, or brought about by the fact thatthe promise of marriage would not otherwise be given or the marriagewould not otherwise take place, the transfer is not a pure act ofliberality.
In Theodoris Fernando v. Rosalin Fernando™, a father had agreedwith his intended son-in-law that, in consideration of his marriage withhis daughter, he would, at such marriage, make over and convey
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certain lands to his daughter. The marriage took place, but the fatherdied before the marriage. The girl’s mother, as executrix, conveyedthe promised properties. In deciding whether the conveyance was infraud of creditors, Lawrie, A.C.J. at p. 285 said :
Certainly if a land be conveyed before marriage by abridegroom to his bride or to marriage settlement trustees, or ifthe parents of the bride convey land to her and to thebridegroom or to the trustees iri consideration of the marriage,then the conveyance would be for valuable causes.
Moncrieff, J. appears to have shared the view that the gift given inthat case, in consideration of marriage was for valuableconsideration, and, therefore, could not be set aside. The viewsexpressed by Lawrie, A.C.J. and Moncrieff, J., however, were obiter,since the fact of insolvency was not established.
In Jayasekera v. Wanigaratna(,7 a father executed a deed infavour of his daughter “on the day of her marriage as dowry”. Thequestion for decision was whether that deed, being one for valuableconsideration, gained priority over an anterior deed by priorregistration (in terms of the Registration of Documents Ordinance,which incorporated English rules and let in English concepts in itsconstruction, cf. Weeramantry, The Law of Contracts, at p. 50)Hutchinson, CJ. at pp. 365-366 said :
"… a conveyance of land by a father to, or for the benefitof, his daughter by way of dowry on her marriage is primafacie, a conveyance for valuable consideration. It is possible,of course, and it is a thing which is done every day, for theparents or friends of a bride to give her a present on the day ofher marriage, a pure gift, which does not form the considerationor any part of the consideration for the bridegroom marryingher. But that is not dowry. And in this country, as in most others,the dowry is almost always the consideration or part of theconsideration for the man taking the woman as his wife. Thefact of the deed being called a “deed of gift” cannot makeany difference, if it is clearly proved what the real nature ofit was.”
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The emphasis is mine.
The circumstances must be considered in deciding whether aconveyance was on the one hand, an act of sheer liberality, whether itwas as Hutchinson, C.J. said, “a present on the day of her marriage,a pure gift which does not form the consideration or any part of theconsideration for the bridegroom marrying her”, or, on the other,whether it was a gift in consideration of marriage, in the sense that itwas a transaction prompted by, or as Voet says (xxxix. 5.34), enteredinto “so that a suitor or a girl might be tempted to a marriage whichwould not have ensued at all" . . .ut ad matrimonium.alioquin haudsecuturum, procus aut puella invitaretur . . . Was the transfer ofApaladeniya Estate, as De Sampayo, J. said in Ponnamperuma(supra) an “inducement” lor the marriage? Was it an inducingreason – die om bewegende reeden geschiedt – as Huber (ibid.)might have put it ? Was the transfer that which made marriageattractive and led the respondent on to take Perera's hand inmarriage? Was the gift a condition of the marriage? Could it be saidthat the marriage would not have “ensued at all" but for the transfer?What was the understanding?
A Court cannot profess to be able to divine what was in a donor'smind. That is an inference to be drawn on a balance of probabilitiesfrom the proved facts. (Cf. per Tindall, JA, in-Av/'s v. Verseput,(supra) at p. 366). If, as Mr. Daluwatte submits, and if as the Court ofAppeal concluded, the conveyance was a donatio propter nuptias,there must be admissible evidence from which it might be deducedthat the conveyance was made to encourage or promote themarriage – voorzetten van howelyk -, that it was to “tempt" themarriage, from which circumstances it might be inferred that it wason account of the promise of marriage, or that it was on the conditionof the marriage taking place, that the transfer was made. There mustbe evidence from which it could be concluded that the transfer wasprompted or “brought about” by the marriage or the promise ofmarriage. Ex facie, as a matter of form, the conveyance, as we haveseen, was a gift. However, if, as Mr Daluwatte urged, it was insubstance a donatio propter nuptias, in that the conveyance wasprompted and brought about by the promise, or the fact, of themarriage taking place and, therefore, it was a donatio non mera, and,
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consequently, a transaction arising from some inducing reason – dieom bewegende reeden geschiedt – because it was given toencourage and promote the marriage – voorzetten van houwelyk- byhelping, as Mr. Daluwatte explained, to relieve its burdens, and,therefore, it was not a "gift" in the narrower, technical sense, -eygentlyke – a “genuine", "properly so called", gift – but rather aquasi-donation – oneygentlyke -, "gift" improperly so called – donatioimpropria -, there must be admissible evidence leading the Court tosuch a conclusion. The deed does not say, to use the words ofMiddleton, J. in Obeysekera Hamine et al. v. Jayatilleke Haminem,“that if the promisee will marry [Perera] or someone else that theproperties will be conveyed".
Mr. Samarasekera complained that, since the question ofrevocability on the ground that the transaction had been a donatiopropter nuptias had been raised for the first time in the Court ofAppeal, he did not have the opportunity o.f showing that thetransaction was not a donatio propter nuptias. As we have seen, theonus of showing that the transaction was a gift is on the person whoseeks to revoke it. Yet, where, as in the case before us, the terms ofthe deed, ex facie, show that it was a gift, in my view, the burden ofadducing evidence to show that it was in fact, in substance, in reality,a donatio propter nuptias, is on the person who claims that it was aspecial kind of gift. De Sampayo, J. observed in Ponnamperuma,(supra) that “the nature of the gift, if it is to be claimed as being of aspecial kind, should be disclosed in the instrument itself". If, as HisLordship seemed, however, to have been prepared to consider, therewas extrinsic evidence to the contrary, it should, as His Lordship saidin that case, not fall “short of what is necessary." If the donee’sposition was that, although ex facie the deed was a deed of gift, itwas in fact a donatio nuptias, a gift of a “special kind”, as DeSampayo, J. put it, obviously, it was not for Mr Samarasekera’s client,the donor-appellant, but for Mr. Daluwatte’s client, thedonee-respondent, to show that she took Perera’s hand in marriagebecause her parents transferred Apaladeniya Estate in return for herdoing so. If I might use the words of Middleton, J. in ObeysekeraHamine (supra), “she has not gone into the box to prove that”.
In Obeysekera Hamine et al. v. Jayatilleke Hamine?the step-daughter of the defendant, (the first plaintiff), and the husband of the
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step-daughter, (the second plaintiff), sued the defendant for thespecific performance of an agreement signed by the defendant bywhich she undertook, after she had taken out letters of administrationto her deceased husband's estate, to convey to the step-daughter, byway of dowry, certain specified properties of her deceased husband,on "the joyful occasion of her marriage." Grenier, J. (at p. 164) said :
"It was argued that the promise as embodied in theagreement was a nudum pactum, and cannot therefore beenforced. It is unnecessary to deal with this large question onthis appeal, because I think that the agreement simplyamounted to a declaration, and nothing more, that thedefendant would at some future time give certain lands to the1st plaintiff by way of dowry out of property belonging to herdeceased father’s estate. I am inclined to take the view putforward by Counsel for the appellant that the object with whichthis document was drawn out was to show that the 1st plaintiffwould not be dowerless, but that after the defendant had dulyadministered her husband's estate she would convey to the 1stplaintiff certain lands out of that estate. The 2nd plaintiff was noparty to this agreement, and it cannot be said that he wasinduced to marry the 1st plaintiff in the belief that the defendantwould convey certain lands to his wife in consideration of hismarrying her.”
Middleton, J. at p. 165 said :
"The consideration or rather justa causa in Roman-Dutch Law8 NLR p. 49 if any must proceed from the promisee, the firstplaintiff. Leake on Contracts p. 480 (4 ed.). She has not goneinto the box to prove that she married the second plaintiffbecause the document A, was signed by her stepmother.
In my view therefore no justa causa proceeding from thepromisee has been proved which would make this a validagreement for the breach of which id quod interest or damagesmight be exacted. The document promises to convey thevarious properties as dowry by reason of the joyful occasion ofthe promisee's marriage.
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It does not promise that if the promisee will marry the secondplaintiff or someone else that the properties will be conveyed.
For this reason I am inclined to the view that the defendantcannot be made liable in damages.”
And so, it is the donee, and not the donor, who might have beenprejudiced, if at all, by the lack of extrinsic evidence in the matterbefore us, assuming, of course, that such evidence was admissible.The Court of Appeal did not resort to extrinsic evidence in concludingthat the transfer was a donatio propter nuptias and Mr. Daluwatte,who appeared for the donee, insists that such evidence isinadmissible.
Mr. Samarasekera drew our attention to the fact that theprospective son-in-law, Perera, had not contested the revocation. Itwas he, who might have been induced to marry. His failure to resistthe action for revocation was, Mr. Samarasekera said, indicative ofthe fact that the gift was not induced by the promise of marriage. Thefact that the transfer of the property was induced or prompted by themarriage is no doubt important in deciding whether it was a donatiopropter nuptias. However, I do not agree that the disinterest of theprospective son-in-law concludes the matter in the case before us.The dictum of de Sampayo J. in Ponnamperuma v. Goonesekera(supra) that, because the gift in that case was not to the prospectivebridegroom but to his wife, “one element of this kind of donation isabsent", does not assist the appellant in the case before us. Nor doesthe observation of Grenier, J. in Obeysekera Hamine (supra) that,since the second plaintiff in that case was no party to the agreement,it could not be said that he was induced by the gift to marry the firstplaintiff. The transfer in the case before us was not to the prospectiveson-in-law alone, but to both the daughter and prospective son-in-lawof the donor. I agree with Mr. Daluwatte that, the inducement may wellhave been offered to both parties. Certainly, an incentive may beoffered to the man or to the girl. (Cf Voet, xxxix.5.34 – vide supra). Andthere is nothing to prevent it from being offered to both of them.Shouldering the burdens of marriage might well have been seen as ashared responsibility of both the daughter and her husband. Or was itan inducement offered to the appellant-daughter alone? It has not
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been established that the respondent – the daughter – was inducedby the gift of Apaladeniya Estate, because it might have ensured herability, as Mr. Daluwatte suggested, to "shoulder the burdens ofmarriage”. Perhaps, the respondent was reluctant to marry Perera -because she feared she might cease to live in her accustomedcomfortable circumstances? Did the respondent agree to marryPerera because the transfer of Apaladeniya Estate would sufficientlymeet her requirement that she should continue to live in comfort? Butthen, was the prospective bridegroom impecunious, or at leastunable to support his wife in the life-style she was accustomed to? Orwas the property transferred, as it was in Wijetunga v. AtapattuiUmerely to “win over” one or both of the donees? There was noevidence on such matters either in the deed or in other part of therecord before the Court of Appeal. What were the circumstances fromwhich the Court inferred that it was the promise of marriage or themarriage – the donee’s consideration – that moved th'e appellant tomake-the gift? What was the basis upon which the Court of Appealmight have properly concluded that the conveyance was a giftpropter nuptiasl
As we have seen, having regard to certain words and phrasesused, ex facie, the deed appears to be a deed of gift. We mightfurther consider its terms to ascertain whether it was a donatiopropter nuptias. The deed states that a marriage had been arrangedand that it was to take place shortly and that the donors had decidedto “donate” the property “on the occasion of and in consideration ofthe marriage.”
According to the deed, the subject-matter of the transaction was avaluable land. Therefore, unlike ordinary wedding presents, or gifts offlowers and consumables and the like given by betrothed persons toeach other, it cannot be assumed that the transfer was intended asan absolute, pure, act of liberality, where the thing given was more orless abandoned with no hope of recovery if the marriage did not takeplace. (See Voet xxxix. 5.3 and 5. Cf. Heen Banda v. Sinniahm).
On the other hand, the deed refers to the fact that it was a gift totheir “only child”. Does this not suggest that the act was one ofliberality rather than one moved and prompted by otherconsiderations?
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However, the gift was not to take effect immediately. It was to “takeeffect on the marriage of the donees" and they were to have theproperty “for ever”, but “from the marriage”. This would suggest thatthe transfer was conditional upon the marriage. Moreover the transferwas subject to the life interest of the parent – donors. Ordinarily, adonatio propria, a gift properly so called, is made with the intentionthat the thing gifted shall at once become the property of therecipient. (Voet 39.5.4; Maasdorp, p. 53; Nathan p. 1155).
But then, if, as Mr. Daluwatte argued, the motive of the donor'wasto induce the marriage by lightening its burdens, and that it should,therefore, be inferred that the change of civil status was theconsideration for the gift, why did the appellant-donor make the giftsubject to a life interest for herself and her co-donor husband?Admittedly, the gift was to “take effect on the marriage” and “from themarriage", but this merely meant that the title to Apaladeniya Estatewas vested on the marriage taking place. The transfer was subject toa life interest. The enjoyment of the property was postponed. It was acase of dies cedit sed non venit. How could the marriage be madeattractive by a reduction of its burdens when the right to enjoy theproperty and take its fruits, when the right to remain in full andundisturbed possession and enjoy the produce and profits of theEstate, remained, even after the.marriage, exclusively andundisturbed in the donors who had reserved to themselves a lifeinterest – an interest, incidentally, which the appellant-donor yetenjoys, many years after the occasion of the marriage? Thereservation of a life interest showed that the conveyance was notpropter nuptias.
In terms of the deed before us, I am of the view that theconveyance was a present, albeit a valuable gift, by parents to theironly child, simply to enrich her for the sake of enrichment, havingregard to the fact that she was getting married, that is to say inconsideration of her marriage, taking into account the fact that, in thewords of the donor in Obeysekera Hamine, “the joyful occasion of hermarriage” was an appropriate event for giving a present. It was givenas an act of liberality. However the generous parents did not.actimpulsively and recklessly without sufficient regard for their ownsituation and, therefore, the gift was made subject to a life interest.
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Having regard to its extraordinarily valuable nature, it was somewhatdifferent from an ordinary wedding present. But like all other weddingpresents, customarily given, it was not something given to induce orprompt or bring about the marriage. (Cf. per De Sampayo, J. inPonnamperuma (supra). The donor was not moved to give the gift bythe promise of marriage or by the act of marriage. (Cf. Wijetunge v.Attapattu (supra)). It was not given to requite or recompense. It wasnot a part of a bargain or a sprt of exchange. Looking at it from thedonee’s point of view, the transfer of the property was not a conditionof the marriage. It did not form the consideration or part of theconsideration, in the sense of an inducement or a quid pro quo, forthe parties getting married. (Cf. per Middleton, J. in ObeysekeraHamine; per Hutchinson C.J. in Jayasekera (supra); Cf. alsoKanapathipiUai v. SubramaniamW)). As such, it was a gift pure andsimple – a gift properly so called. To use De Sampayo’s words inPonnamperuma (supra), “both in form and substance it is an ordinarygift”; and, therefore, it is revocable on the ground of ingratitude. In myview, on the material before it, the Court of Appeal could not haveproperly concluded that the conveyance was, to use the words of DeSampayo, J. in Ponnamperuma (supra) “ a donation propter nuptiasin the true sense of the expression”; and, therefore, for the reasons Ihave explained, it should not have been decided that the deed wasirrevocable, despite proof of the donee's ingratitude.
Assuming, arguendo, that there was a donatio propter nuptias,what was the effect of the dissolution of the marriage? The Court ofAppeal did not consider this aspect of the matter, but, followingProfessor Lee’s statement of the law (op. cit. p. 289) that revocationwas not possible in the case of a "marriage settlement”, inter alia, onthe ground of ingratitude, it held that the gift in this case wasirrevocable.
Professor Lee based his view on Voet 39.5.25 and 34 and on Avisv. Verseput (supra). Avis v. Verseput was not concerned with adonatio propter nuptias : It was a case relating to the subject ofremuneratory donations. As far as the passages in Voet (upon whichhe based his conclusions) are concerned, Professor Lee overlookedthe fact that Voet dealt with gifts in the event of the dissolution ofmarriage on an exceptional basis. Voet regarded a dowry or a
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donatio propter nuptias as a gift "improperly so called”, and saidthat, like a remuneratory gift, a dowry or a donatio propter nuptias,must be reckoned “rather as onerous than as lucrative titles, sincethey are given for shouldering the burdens of marriage, and the manwould not have been likely to take to wife an undowered woman",(non etiam revocationi donatorum locus est ob causam ingratitudinis,quoties donatio remuneratoria facta fuit… Nes aliud statutendum dedote aut propter nuptias donatione; cum & hae minus propriaedonationes sint, magisque onerosis quam lucrativus titulisaccenseantur, indotam ducturus non fuisset; sive a patre sive abextraneo dos data fit). However, Voet then qualified what he said. Hesaid:
Si tamen soluto matrim'onio dos aut propter nuptias donatioad ingratam aut ingratum reversa fit, magis est, ut tunc actionehac revocataria recte conveniatur, quippe jam magis exlucrativa quam onerosa causa possidens id, quod stantematrimonio dotale fuerat. Nevertheless if a dowry or donation onaccount of marriage has gone back to an ungrateful man orwoman on dissolution of the marriage, the position is rather thathe or she is then correctly sued in this revocatory action,inasmuch as he or she now possesses on a lucrative rather thanon an onerous cause something which was dotal while themarriage lasted. (Gane, Vol. 6 p. 117).
Thereafter, Voet goes on to explain why the written answer of theEmperors, appearing in the Code (V. 12.24), concerning a gift by apatron to the husband of his freedwoman, is not at variance with thisview. Later (xxxix. 5.34), Voet affirms the position that a dos ordonatio propter nuptias is not revocable for ingratitude except if themarriage has been dissolved and the property has gone back to theperson in whose favour it has been given, for then it is understood tobe in his or her hands, not on an onerous basis, but on the basis of alucrative title. Voet said:
"Et quod ante de dote vel propter nuptias donatione obingratitudinem revocanda vel non revocanda dictum num. 25.id simili modo in hac quaestione de revocando propter liberospostea susceptos recipiendum est, revocationi scilicet locum
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non esse, nisi postquam dos aut propter nuptias donatio solutomatrimonio ad conjugem, cujus contemplatione a tertio dataerat, reversa fuerit, ut intelligatur non ex oneroso sed lucrativotitulo jam penes eum eamve esse. What has been said above insection 25 as to a dowry or donation on account of marriagebeing revocable or not revocable for ingratitude must beaccepted in like manner on this question of revoking on accountof children being raised up afterwards. That is to say there is noroom for revocation except after a dowry or donation onaccount of marriage has gone back on dissolution of themarriage to the spouse with reference to whom it has beengiven by a third party, so that it is understood to be now in his orher hands not on an onerous but on a lucrative title." (Gane, Vol.6 p. 127).
In discussing the thorny question of the need for registration as acondition of the validity of a transaction, (which, as we have seendoes not concern us on account of the applicability of the provisionsof the Prevention of Frauds Ordinance to this case), Voetdistinguishes between remuneratory gifts, on the one hand, and adonation propter nuptias, on the other. He said (xxxix. 5.17):“Remuneratory donations are irrevocable, but this donation onaccount of marriage is revocable, and is liable to have to be returnedwhen the marriage is dissolved. It therefore seemed good that theneed to register it should be laid upon the husband in the interest ofthe woman, so that it might be clear and could be proved what andhow much had been donated and must be given back “if perchancethe original documents should be lost, as may easily happen,"according to the words of the Emperor…" (Gane, Vol. 6, p. 107).
dum donationes remuneratoriae irrevocabiles sunt, haec veropropter nuptias revocabilis & matrimonio socuto obnoxiarestitution!; ut proinde visum fuerit, in gratiam mulieris imponimarito insinuationem ejus; quo appareret ac probari posset,quid quantumque donatum ac reddendum fit. si forte,principalia instrumenta pereant, quod facile est, ut aitimperator…
Voet, who, as Watermeyer, ACJ, observed in Avis v. Verseput,(supra), at p. 351 fin., "treats the subject of donation more fully than
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most of the other recognized Roman-Dutch authorities", makes itquite clear that the dissolution of a marriage alters the character of adotal gift, the donee after the dissolution having a “lucrative" ratherthan an "onerous” title. The property is dotal in character stantematrimonio, while the marriage lasts, but not thereafter. The principlesthat apply to a donatio propter nuptias cease to be applicable whena marriage, in consideration of which a gift was made, ceases toexist. The bottom of the transaction as it were falls off.
Nathan (Common Law of South Africa), 2nd Ed., Vol. ii, p. 1164)does not cite these passages from Voet, but states as follows :
There can, according to Voet and Grotius, be no revocationon account of ingratitude in the case of a donatio remuneratoria,which is more an exchange than a gift. In the same way, saysVoet, neither a dds nor a donatio propter nuptias can berevoked (see Pillans v. Porter's Executors(S2)). on the ground ofingratitude, by a parent or third party (extraneus); although he isof opinion that on the termination of the marriage, when the dosor donatio reverts to the spouse in whose favour it was given,the donor may claim it on the ground of ingratitude.
Mr. Daluwatte argued that a dowry is given to lighten the burdensof marriage and make it more attractive. However, then, if themarriage ceases to exist, surely, the need to relieve its burdens doesnot continue? Would such a situation, mutatis mutandis, not beanalogous to a case where a marriage does not take place at all,requiring the return of the things given propter nuptias? (SeeAppuhamy v. Mudalihamym John Sinno v. Weerawardene et al.(57);Heenbanda v. Sinniah{i' Wijetunge v. Atapattu{SSh, Van Duyn v.Visserm Maasdorp p. 54). I
I should also like to invite attention to certain observations ofGratiaen, J. in Ratnayake v. Mary Nona<59). That was a case in whichrevocation was sought, not on the basis of ingratitude, but on thebasis of the legitimation of a child of the donor after the making of thegift. A gift is revocable if children are born or legitimated after the gift,because a gift is subject to the tacit condition that the donor will bewithout progeny. Gratiaen, J. at p. 200 said :
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The “tacit condition” suggested by Voet as the theoreticalexplanation of a revocatory action can, in a sense, be equatedto a contractual resolutive condition which, if subsequentlyfulfilled, invalidates the contract which was valid at its inception(Voet, 18.5.1.)- As Wessels explained in The Law of Contract inSouth Africa, Vol. 1 p. 432 and p. 437, “a contract subject to aresolutive and resolutory condition creates a legal bondbetween the parties, but in such a way that if the condition isfulfilled, the legal bond is broken, and the parties are restoredas much as possible to their former condition. By the fulfilmentof the resolutive condition, the contract ceases to exist.”
But is there any need in the present context to discover somelogical explanation for the remedy which the Roman Dutch Lawrecognizes in revocatory actions? As in the well-known“frustration” cases in commercial transactions, some mayexplain the remedy by speaking of the disappearance of theassumed foundation of the basis of the contract, others byreading an implied term into the written instrument. ConstantineSteamship Line v. Imperial Smelting Co.m. Lord Sumner would,perhaps describe it as “a device by which the rules as toabsolute contracts are reconciled with a special exceptionwhich justice demands.” Hirji Mulji v. Cheong Yue SteamshipCo.<6,). Suffice it to say in the words of Lord Simon thaf“whichever way it is put, the legal consequence is the same.”
The point does not arise in this case, but for the sake ofcompleteness, and to allay any misgivings, I should say this: aproperty which is liable to be returned upon an order for revocationon account of ingratitude, does not include the fruits of the propertyup to the time of the joinder of issues (Voet xxxix.5.25). Further, aproperty donated cannot be claimed for ingratitude if the donee, ingood faith and without any intention to defraud the donor, hadalienated the property by sale, donation, exchange, dowry or transferon account of any other lawful cause whatever. (Voet xxxix.5.24;Horatala v. Sanchfm; Manuelpillai v. Nallammam; at Nathan (op. cit.60).
There is no doubt that if the conveyance in this case was either anordinary gift, in the first place, as I think it was, or assuming as the
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Court of Appeal did that it was a donatio propter nuptias, then, since,as a matter of law, it had to be regarded as an ordinary gift after thedissolution of the marriage, it would in either case have beenrevocable for ingratitude. (Voet xxxix. 5.22 read with xxxix. 5.17, 25and 34).
Mr. Daluwatte, however, argued that the gift is not revocablebecause the evidence did not support the allegation of assault andthat there was no proof of ingratitude. The learned District Judge wassatisfied that the fact of assault was proved and I see no reason todisagree with him. Mr. Daluwatte submitted that if there was a singleblow or a single incident, as in this case, it was then a manifestationof “slight” ingratitude. I agree that slight acts of ingratitude areinsufficient for revocation. Voet xxxix. 5.22 explained it in this way:
Leviores plane ingratitddinis causae revocationi faciendaehaud sufficiunt: licet enim & leges & rectaratio ominem omnino,utcunque leviorem, ingratitudinis maculam vitumque damnent,non tamen ideo protinus earn revocatione donati volueruntmulctari. Tolerant scilicet legum latores leviora, dum emendarenequeunt, ac satis praevident, fora omnis atque tribunalia nonsuffectura actionibus adversus ingratos movendis, si quodlibetingratitudinis etiam levioris crimen severa foret legevindicandum. Of course slighter causes of ingratitude are by nomeans enough to bring about a revocation. Although both thelaws and right reason entirely condemn every blot and blemishof ingratitude, albeit somewhat slight, nevertheless they havenot intended that for that reason it should be forthwith penalizedby revocation of the gift. I mean that the framers of the laws putup with slighter things, since they cannot better them, and theyforesee quite clearly that all courts and benches would not beenough for the starting of actions against ungrateful persons, ifevery offence of ingratitude even of slighter kind had to bepunished by a stern law. – Gane, Vol. 6 p. 114.
What amounts to an act of ingratitude, sufficient to warrantrevocation, must vary with the circumstances of each case. Forexample, in Sansoni v. Foenanderm, revocation was granted onaccount of the non-fulfilment of a condition, and for atrocious and
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calumnious slander by the donee-nephew of his donor-aunt. InHamine v. Goonewardeneia), the donee-son calling the donor-mothera “whore" during a quarrel, under provocation, was held to beinsufficient for revocation. In Sinnacuddy v. Vethattai,C6>, theelopement of the donee with a low caste man was held to beinsufficient. In Sivarasapillai v. Anthonypillai <67>, the donor-wife wasdriven out of the house given to the donee-husband by reason of her“nomadic habits" leading to a "cat and dog life". It was held to be notsufficient. However, the laying of personally violent, impious, wicked,sacrilegious hands (judges and jurists translate manus impias inthese, and perhaps other, different ways) on the donor is, withoutquestion, one of the five specified causes of ingratitude warranting"just" revocation. A donor is entitled to revoke a donation on accountof ingratitude (1) if the donee lays manus impias on the donor; (2) ifhe does him an atrocious injury; (3) if he wilfully causes him greatloss of property; (4) if he makes an attempt upon his life; (5) if hedoes not fulfil the conditions attached to the gift. In addition, a giftmay be revoked for other, equally grave, causes. (Manuelpillai v.Nallammam Voet 39.5.22; Van Leeuwen, Censura Farensis, xxxix.5.22 and Het Roomsch Hollandsche Recht., (Kotze Vol. 2 pp. 235-236; Huber, Heedensdaegsche Rechtsgeleertheyt, (Gane) Vol. 1 p.477; Grotius, lnleidinge 111.2.16 and 17; Burge, Commentaries onColonial and Foreign Laws, (1838), Vol 2. p. 146; Domat, Les Loixciviles dans leur ordre naturel, Vol 1, p. 406 ; Maasdorp, op. cit.p. 60. These acts are regarded as so serious, that a gift is revocableon account of such manifestations of ingratitude, even though thedonor may have expressly agreed on oath not to exercise his powerof revocation. (Voet xxxix. 5.22. See also Perezius, PraelectionesCodicis Justiniani, viii. Ivi.4.7; Krishnaswamy v. Thillaiyampalamm).
As for the argument, that there was but a single blow, or a singleact of ingratitude, I think the answer was, with great respect,sufficiently given by Basnayake, C.J. in Krishnaswamy (supra) atp. 269 when he said :
“The ways in which a donee may show that he is ungratefulbeing legion, it is not possible to state what is "slightingratitude" and what is not, except in regard to the facts of agiven case. There is nothing in the books which lays down the
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Dona Podi Nona Ranaweera Menike v. Rohini Senanayake
(Amerasinghe, J.)
221
rule that a revocation may not be granted on the commission ofa single act of ingratitude. Ingratitude is a form of mind whichhas to be inferred from the donee’s conduct. Such an attitude ofmind will be indicated either by a single act or by a series ofacts.”
I have no doubt that the donee-daughter, by assaulting her donor-parents, was guilty of what Voet (xxxix. 5.35) referred to as “the fouloffence of ingratitude”. I am of the view that her mother, the donor-appellant, was justified in seeking the assistance of the District Court,(revocation is not automatic and requires a decision of a court – seeRatnayake v. Mary Nona (supra)), for the revocation of the gift ofApaladeniya Estate.
For the reasons set out in my judgment I allow the appeal, setaside the order of the Court of Appeal and affirm the order of theDistrict Court. The respondent, Mallawa Arachchige RohiniSenanayake, shall pay the appellant, Ranaviratne Arachchige DonaPodi Nona Ranaweera Menike, a sum of Rs. 10,000 as costs.
FERNANDO, J.
I agree.
KULATUNGA, J.
I have had the advantage of perusing in draft, the judgment of mybrother Amerasinghe, J. He has set out the facts and cited thejudicial decisions and authorities on the issues involved. I agree thatupon a proper construction of the Deed No. 3412, the gift of propertywhich is the subject-matter of the above action is not a donatiopropter nuptias made on account of the marriage of the 1stdefendant-respondent Rohini Senanayake. She is the only daughterof the donors, the 2nd plaintiff-appellant, (her mother), and her latefather who was the 1st plaintiff in the above action. The said gift wassubject to a life interest in favour of the donors. There is nothing toindicate that it was a gift to "tempt" the marriage, or on account of thepromise of marriage or was “prompted" by the marriage of the
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donees taking place, which features constitute the characteristics ofa donatio propter nuptias.
On the face of the Deed the said gift is an “ordinary gift"' made outof liberality and generosity. As such it gives the donee a “lucrative"rather than an “onerous” title and hence it is revocable on account ofingratitude. The use of the expression contained in the said Deedthat the gift was “in consideration of the marriage of the donees" orthe condition that it was to take effect “on the marriage of thedonees” are not sufficient to rebut this position and to make it adonatio propter nuptias or a dowry deed, which is irrevocable.
I am of the view that the Court of Appeal was in error in regardingthe issue as to the character of the gift as a pure question of law,when it was raised for the first time in appeal and in interfering withthe judgment of the trial Court on that basis in the absence ofsufficient evidence on record to hold that the Deed was a dotalagreement.
I agree with my brother Amerasinghe, J. that the donee appellant,by assaulting her donor parents, was guilty of ingratitude, whichwarrants the revocation of the gift. The judgment of the District Courtallowing its revocation on the ground of gross ingratitude was,therefore, right. Accordingly, I allow the appeal, set aside thejudgment of the Court of Appeal and affirm the judgment of theDistrict Court.
I also agree with the order for costs made by my brotherAmerasinghe, J. in a sum of Rs. 10,000/- (Rupees Ten Thousand) and •direct Mallawa Arachchige Rohini Senanayake to pay the said sum toRatnaviratne Arachchige Dona Podi Nona Ranaweera Menike.
Appeal Allowed.