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1919.Present: Ennis A.C.J. and Loos A.J.
FEBNANDO et ql. v. SOYSA.
117—D. G. Chilaw, 6,011.
Donation to- take effect after donor’s death—Donation ' inter vivos—Mortiscausa—Executrixdeson tort—Widowsellingpropertywithout
joining the children—Debts.
A gifted a property to B “as a gift that cannot be revoked atany time for any reason whatever, which* is to be owned by himafter my death."
Held, that wasnota donation mortiscausa,but adonation
“ A donation inter vivos vests at once in the donee, and it is onlythe delivery of the property which is postponed till a later date;and with the .consequence that the donation is transmitted to thedonor's heirs if the donee happens to die before the donor."
*facts appear from the judgment.
Samarawickreme, for the appellants.
A. St. V. Jayawardene, for the respondent.
July 7, 1919. Ennis A.C.J.—
This was an action for declaration of title to a half of a definedone-fourteenth portion of a, land called Davulkurundumukalana.It .appears that the land was granted in 1889 by the Crown toone Domino Perera, who divided it into two portions, and sold
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the western half on November 24, 1892, to Catherina Fernando.Catherina Fernando divided this western portion into seven portions,and gifted a separate one-seventh to each of her children. The deedof gift to Augustinu is P 2, No. 13,807 of July 28, 1894, and itconveyed to Augustinu for the love and affection she bore towardshim, “ as a gift that cannot be revoked at any time for any reasonwhatever, which is to be owned by him after my death. ” AugustinuFernando died before his mother, leaving as his heirs his widowMartha Perera and two children, the first and second plaintifE in thecase. Martha Perera on June 18, 1902, joined in a deed with thesix surviving children of Catherina, and conveyed to Domino Perera“ all the right, title, and interest, which we, the said vendors, and ourheirs and assigns, hold. ” In the recital, Martha Perera, who wasthe seventh-named party in the deed, stated that “ she was entitledto a share through my husband, and also mentioned in the deedof gift bearing No. 13,807. ” In acknowledging receipt of the con-sideration, .the deed, on behalf of Martha Perera, says:. “I, theseventh named, received my share for the payment of a part of theamount payable unto the said two Chetties by my above-nameddeceased husband Augustinu Fernando upon mortgage bond bearingNo. 15,014 dated May 7, 1898. ” The learned Judge says that thisdocument of 1902 conveyed to Domino Perera the whole of theone-seventh share gifted to Augustinu by his mother, if it conveyedanything at all. But the first issue in the case, which was asto whether the one-seventh gifted to Augustinu formed part ofAugustinu’s estate, was answered in the negative, on the ground thatthe gift was subject to the condition that the donee should becomex the owner after the donor’s death, and that Augustinu predeceasedhis mother, that there was a revocation of the gift in his favour,and no title vested in the heirs. This conclusion is the first pointchallenged on the appeal. The respondent in this connection cited apassage from Maasdorp, vol. 3, 9. This passage was based on Voet,3, 5, 3, and is only a small portion of the paragraph in Voet. It was“ an incomplete donation is one, which is given with the intention thatthe thing is not to become the property of the donee until some otherevent has taken place, or that it is to become his property at once, butis vto revert to the donor upon the happening of a certain event.Voet in 39, 5, 3, dealing with complete and incomplete donations,says that in the category of incomplete donations are' donations mortiscausa and donations propter nuptias, and such like, and in 39, 5_, 4,speaking of donations mortis causa, and donations non mortis causa,he says that all donations non mortis causa are called donationsinter vivos, and adds, “ if a man says he gifts after his death, " orthe like, he is considered to have made a donation inter vivos, andMaasdorp also, on page 90, says that the donation inter vivos is onewhich is not conditional upon the death of the donor, and that adonation would be inter vivos, even though mention may be made in
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it of the death of the donor. • It appears from Voet that a donationinter vivo* vests at once in the donee, and it is only the delivery ofthe property which is postponed till a later date, and with the con-sequence that the donation is transmitted to the donor’s heirs if thedonee happens to die before the donor. It follows, therefore, thatthe learned Judge was wrong in deciding the first issue in thenegative. The deed P 2 is clearly a donation inter vivos. Theproperty vested at once in Augustinu, and was transmitted to hisheirs on his death.
The second point urged on the appeal was only touched onindirectly in the judgment, and that is, that the deed D 5 by MarthaPerera conveyed the whole of the one-seventh of Augustinu’s share,and that it was a bona fide transaction made by the widow for thepurpose of paying the debt of the husband, and as such, oh theprinciple enunciated in the case of Silva v. Salman,* was a goodsale. It was on this point that the learned Judge appears to haveconsidered that the document D 5 conveyed the whole of the one-seventh. I am, however, not satisfied that the deed can be soconstrued. Nowhere is it said in the deed that the whole of thelands within the boundary specified were conveyed. Moreover,Martha Perera in setting out her title does not purport to deal withher husband’s share, but only that share to which she was entitledthrough her husband, and,' finally when we come to the operativeportion of the deed, there also no specific shares are mentioned, buteach Of the parties to the deed conveys his or her own right, title, orinterest in the land. So that, strictly speaking, Martha Perera bythis deed did not convey to the purchasers more than the share inAugustinu’s estate, to which she was entitled as one of his heirs. Butit is urged that she was an executrix de son tort. Now, this was thesecond issue in the case, and the point was raised by the defendants,so that the onus of proof would, therefore, be on the defendant.But on this point there is no evidence of any kind, so that the issuemust be answered in the negative. As I have pointed out also, thedeed itself does not create any inference that the widow dealt withany more than her own share in the land. As the plaintiffs wereminors until June 20, 1914 and June 30, 1913, no question ofprescription against them, can possibly arise. Counsel for the partieshave agreed on damages at the rate of Bs. 100 per year. I wouldset aside the decree, and enter judgment for the plaintiffs as prayed,with'damages as agreed with costs both in the Court below and onthe appeal.
Loos A.J.—I agree.
,111916) 19 N. L. R. 305.