GUNERATNE v. YAPA

077-NLR-NLR-V-28-GUNERATNE-v.-YAPA.pdf


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Present: Lyall Grant J. and Maartenaz A.J.
GUNERATNE v. YAPA.11—D. C. Tangalla, 2,285
Donation—Birth of a child—Right to revoke—Remuneration.
Where » person, who has no children, makes a gilt of all his property,or the greater part of it, he is entitled to revoke it upon the subsequentbirth of a child to him, unless he has expressly renounced his right ofrevocation.
T
HIS was an action by the plaintiff to revoke a deedof gift of property made in favour of his nephew, the defendant.
The gift was made after the defendant’s marriage in pursuanceof .a promise made some time before marriage. At the executionof the deed certain other properties were also added. The donorsubsequently married, and brought the present action for therevocation of the deed on the ground, among others, that subsequentto its execution he had married and a child was bom to him. Thelearned District Judge held with regard to the property whichw!as not given as an inducement for the marriage the plaintiff waseintitled to revoke the deed by reason of the subsequent birth of achild to him.
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H. V. Perera, for defendant, appellant.
Soertsz (with Rajapakse), for plaintiff, respondent.
September 6, 1926. Lyall Grant J.—
The plaintiff in this case sues for a revocation of deed of giftwhich he made to his nephew. The deed of gift bears to be inconsideration for the natural love and affection which he has andbears unto his nephew Don Seadoris Bajapaksha Yapa, and hegrants to the said donee as gift absolute and irrevocable the premisesdescribed in the deed for ever, the donor reserving to himself alife interest, and a clause follows by which he warrants to defendtitle. The gift was made after defendant’s marriage, but some ofthe property mentioned in the schedule to the deed was promisedbefore that marriage. The deed itself was not executed untilsome time after the marriage, and at that date a number of otherproperties were added. The donor subsequently married, andbrought the present action. In the plaint he alleges several groundson which he wished the deed revoked. One of those grounds isthat subsequent to the execution of the said deed he contracted asecond marriage and he expected to be the father of a child by the-
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1926*
LtallGrant J.
Qtfnercitne0. Yapa
said marriage, and that at the time of the execution of the said deedof gift the plaintiff did not contemplate the possibility of his becom-ing the father of a legitimate child. The other grounds on whichhe sought to have the deed set aside were that the donee had beenplotting against his life and creating false disputes, and that bysuch conduct he had beCnguilty of gross ingratitude to the plaintiff.Issues were framed for the trial of the case, of which the following1only need be cited: —
Did the defendant aftei: the execution of the ■ deed in.
question outrageously- defame the plaintiff,, or has the. defendant been guilty of acts of ingratitude to plaintiff ?
If so,: do these acts constitute good grounds for 'cancellation
of the deed ?
• (3) Did plaintiff contract -a marriage after the execution of the-cjeed,. and is there-a child by that marriage?.^j
If issue No. 3 is answered in the affirmative, does it. furnish.
clause fdr cancellation of the deed of gift?
Was the child born before or after the institution of the
action? If child was horn after the institution of' thisaction, can plaintiff maintain this, action?
' Was- this deed given .in consideration of the defendant marry-
ing plaintiff’s niece. . If so, can the deed be cancelled ?
The! learned District Judge answered the issues1 of fact as to-defamation and ingratitude in the negative, and he'. accordingly-dismissed the case on the first two issues.
The question whether the plaintiff contracted a marriage afterthe execution of the deed of gift and got a child by that marriagehe answered in th$ affirmative, and it is agreed that he. is,correct..
On the issue whether the child was born before or after theinstitution of the action, the learned District Judge .has- decidedthat the child was born before the institution of the action.
;it was argued on the appeal that there was no evidence to supportthis finding, but we consider that there is evidence upon whichthe learned Judge was entitled so to find, the -facts Being that thecertificate of birth shows that the-child was born, on the 16th ofthe.month. The plaint was actually filed on the ,16th and initialledby the Judge on the 17thOn these facts we think the learnedJudge, was entitled to hold that the child was born before theinstitution of the action, and he dealt with the action as if the plainthad averred that a child was then in existence.
The real ground of dispute is whether the plaintiff is.entitled torevoke the deed by reason of the subsequent birth -of thi6 child.In regard to certain properties the Judge has held that he is notso entitled, but for another reason—for the reason that this property,although given ostens:bly as a gift, was in fact given in considerationof defendant's marriage with his first wife's .elder sister's daughter..
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* There is no appeal by plaintiff, and accordingly there is no occasionfor tfs *4o examine the correctness of the learned Judge's finding' onthis point: * '
-;T3ie only point then before us for consideration is whether, inregard to the* other properties the plaintiff was entitled to revokethe deed by reason of the* subsequent birth of a. child. The learnedDistrict Judge has answered this question in the affirmative.
It was atgttedv in the first place, that the., deed of gift must.beread as one, "ttnd-'*that"it must be taken that, all the properties weregifted in consideration of*-the defendant’s marriage, but .’we areagreed that the learned District Judge was right in not 60 readiogthe deed. There is a vital difference between the properties whichhad been promised before the marriage and the properties whichhere afterwards added. In regard to these latter properties thereis no local decision on the point as to whether, a donor can revokea^gif$ in cop^equence of subsequent birth of the child,, but we havebeen referred to Roman-Dutch authorities. *, ,•..
.^Mr- iWalter Pereira in his Laws of Ceylon at page^ 611 has statedthe law thus ?
; :>“‘‘ If after a gift1 of all his property or the greater part df it.or ofan individual thing of very great value or worth, . at thetime when the donor had no children, children should beborn to him, the gift is invalidated for the condition,
‘ unless the donor has children, ’ seems to be tacitlyincluded in a gift. It is usually left to the judgment anddiscretion of the Judge to decide, considering the conditionboth of the donor and' the donee and. the other circum-stances, whether it is likely that the donor would . nothave given a thing of such value if he had thought of hischildren. ”
That statement has practically been taken direct from Van"Jieeuwen’s Censura Forenais, Part I.* Book IV.r Chap Xlh, tit. 1 8.20. It is to be found at page 92 of Barber and Macfaydens Trans;lation.
The position has been extensively commented on by Voet inBk. XXXIX. tit. 5. Other institutional writers seem to consider thatthe deed is ipso facto revoked by the subsequent birth of children tothe – donor P but Voet himself comes to the opinion that the presump-tion of law, that the gift is subject to the condition that the donordoes not afterwards beget children, may cease to operate, but thatit ought not do- so unless a clear intention to the contrary onthe donor’s: part appears. He says that this power of revocationis available only to the donor because* it seems to have been intro-duced, not for the benefit of the after-born children, but for thebenefit of himself, namely,' in order that* the donor may fulfil hisown obligations, towards hia after-bom children; but Voet is ofopinion that the donor is not entitled to seek cancellation. if he has28/29
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Lsw
Ghmerafn*Tapa
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1926.
StTAU.
6nm J;
Utmeratn*</. Yap a
expressly renounced his right to revoke for that cause, and he addsthat as the presumed intention of the donor is that which givesroom for the revocation, so it is only right that, by a clear manifes-tation of the contrary intention to renounce the right to revoke, thatright should be taken away. The accepted position appeals to bethat there must be clear and unambiguous evidence of the intentionin the deed itself that at the time the gift was made the donor had inhis mind the possibility that he might some day wish to revoke it,or that he might some day have children ; and he must make itquite clear, if he wishes to renounce his right to revoke on thatpoint, that he has this possibility in his mind.
The words used in the present deed are: .“On the occasion,…to the said donee asgift absolute and irrevocable
….absolutely for ever, &c.
The learned District Judge has not considered that these wordsmake it quite plain that the possible birth of future children waspresent in the donor's mind when he signed this document, and onthis point we agree. It must be made perfectly plain by unequivocalwords in the deed that the donor intended to renounce his undoubtedright of revocation after the subsequent birth of children. Theappeal is dismissed, with costs.
Maartensz A.J.—
The main question argued in appeal was whether a donor couldrevoke a gift of property on the birth of a legitimate child.
The principle underlying the revocability of gifts by a childlessperson on the subsequent birth of a child is that the condition isimplied that the donor would have no children subsequently.This condition is inferred from the fact that if he had in mind thebirth of possible children he would not have given away all or a•considerable part of his property, or have made such a valuable•donation.
The' Roman-Dutch commentators, Grotius, Van Leeuwen, and'Vander Keessel, appear to be of the opinion that the deed is ipsofacto a nullity by the birth of a child if the Judge is of opinionthat the donor had not the birth of children in his mind. Grotiusputs it this way. He says:—6S*
“ A donation of allpropertyor a greaterpart thereof, by
a person whohas nochildren,orprobably thought
that he wouldhave no children,isconsidered to be
cancelled and revoked ifafterwardshebegets and leaves
any children who may claim back the donation, becausesuch a condition is considered to be tacitly implied in thetransaction. ” (Kotze’s Roman-Dutch Law Vol. II. p. 240.)
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Voet disapproves of the principle altogether but accedes „ to iton the weight of authority. It is only Voet who lays down thatthe right of revocation may be renounced by the donor. Thewords he uses are: “ The donor himself is not entitled to such acancellation of the donation on account of the subsequent birthof children if he hsts, expressly renounced his right to revoke forthat cause. ’* (Voet XXXIX. tit. 5 a. 31.) That amplifies an earlierpassage, in which he says that 14 the presumption of law, namely,that the gift is subject to the condition, if the donor do notafterwards beget children, ought not to cease to operate unlessa clear intention to the contrary, on the donor’s part appears.(Voet XXXIX. tit, 5 a. 30.) My reading of these'passages of Voet isthat there must be a renunciation in express teVms of the right ofrevocation on the birth of the child, and that it cannot be inferredfrom general words to the effect that the deed shall be deemed tobe irrevocable.
I am, therefore, of opinion that the plaintiff has not renouncedhis right to revoke the gift on the birth of a child, and 1 agree thatthe appeal should be dismissed, with costs.
1926.
Maabtbnsz
A.J.
Qunerotnev. Yapa
Appeal dismissed.