035-NLR-NLR-V-57-HEEN-BANDA-Appellant-and-SINNIAH-et-al-Respondents.pdf
1955Present : dc Silva, J., and Fernando, J.- HEEN BANDA, Appellant, and SINNIAH el al., •Respondents
8. G. 419—D. C. Kandi/, 2,8271,
Donation—Gift made by u-ay oj dowry—Bight o/ donor to recover it if marriage docs-not take place.
Whcro a man makes a gift of land to his prospective brido in contemplationof marriage, the gift must bo returned if tlio marriage does not take placo eventhrough tho fault of tho donor.
j^^PPEAL from a judgment of tho District Court, Kandy.
N. E. Weerasooria, Q.C., with 1S' D. Gunasckera, for the 2nd defendantappellant.
Cyril E. S. Perera, Q.C., with D. R. P. Goonetilleke, for the plaintiff
respondent.•.
Cur. adv. vuU.
September 20, 1955. Fernando, J.—
Tho plaintiff in this action seeks a reconveyance of certain land which]lo convoyed to tho 1st defendant by a deed No. 1371 executed in April,-1947. The deed clearly recites that tho plaintiff had arranged to marrythe 1st defendant and that the land was being donated to her in considera-tion of tho marriage. – The operative clauso of tho deed purports to make-n. crifb absoluto and irrevocable.-
Tho contemplated marriage did not take place and cadi of the partiesplaces on the other the blame for the failure to carry out tho undertakingto marry. The responsibility for ihc failure was not however placed,in issue at the trial, tho plaintiff only raising tho issuo “ Was there afailuro of tho consideration in that there was no such marriage ? ” andthe defendant tho issue whether " such marriage did in fact take place ”,
The 1st defendant attempted to show that tho parties had lived togetheras husband and wifo for a few day's, but the learned Judge was properlyunablo to hold on that evidence that the contemplated marriage hadin fact taken placo. The point which Mr. Weerasooria has argued inappeal is that since tho donation was .made in contemplation of marriage,the plaintiff cannot claim a reconveyance without proving that tho 1stdefendant refused to carry out her agreement to marry tho plaintiff,or in other words, that a gift made in contemplation of marriago doesnot become inoperative merely because the marriage does not tako placebut only becomes so if tho donee refuses to contract the marriage.
Do Sainpayo J. in John- Singho v. Wceraicanlene 1 appears to expressa contrary view, relying on a passage in Grotius ('.i, 2, 20) :— A donationmade in contemplation of marriage must be relumed in case the marriagedoes not- take place ”. In that ease it was clear that the plaintiff whosought to recover the gift had been deceived by' a representation of thodefendant into giving his consent to his daughter’s marriage and makingtiie gift in question. Ho subsequently withheld his consent upon dis-covering that he had been so deceived and it could thereforo have beensaid that, constructively at least, the contemplated marriage did faitowing to the faidt of the defendant. In those circumstances it woiddhave been quite sufficient for do Sampayo J. to have laid down theprinciple that ihc gift could only be recalled when the donee was at fault.But he clioso to state tho principle in much wider terms.
2 135 L. T. 21.
There are many passages in the judgment of Macardie J. in tho car eof Cohen v. Sellar – which imply that in English Law a gift made in con-templation of marriage need only bo returned if the donee refuses tocarry out tho promise of marriage. But Macardie J. was thoro dealingwith tho case of an engagement ling and referring to earlier cases affectinggifts of similar articles such as jewellery &c., and not with a gift madeby way of dowry which was the subject of the dispute in John Singho v.Weeraicardene. (supra). In so far as gifts of tho former description areconcerned, it might well bo tho case that they are returnable only if thodonee refuses to fulfil tho promise to marry, or even that fas in the easeof a gift of perfume, flowers or other consumable articles) some donationsto a prospective brido or bridegroom can bo held to be absolute. Butit would seem clear that where a man makes a gift of land to his pros-pective brido in contemplation of marriage, tho intention of tho partieswould be that the gift shall be returned if tho marriage fails to take placoeven through tho fault of the donor. Nathan (Tho‘ Common Law ofSouth Africa, Vol. 2, p. 1155) distinguishes bet we ?n donatio propria whichin no case reverts to tho donor, the motive for it being pure beneficence,and donaiio impropria which is only to become the receiver’s property1 (1922) 24 IV. L. It. 277.
-if some certain event takes place * and lie places the donatio propter■nuplias in the category of donatio improprict. I would therefore hold-that tho principle as laid down by Grotius (3, 2, 20) is applicable without•qualification in the present case..
The 2nd defendant obtained a conveyance of the land in questionfrom tho 1st defendant and the learned Judge has quite rightly held thatlie had notice of the defeasible nature of the title.
For these reasons the decree in favour of the plaintiff is affirmed and theappeal is dismissed with costs.
de Silva, J.—I agree.
Appeal dism issed.