107-NLR-NLR-V-54-JAINUDEEN-Appellant-and-MURUGIAH-Respondent.pdf
446
Jainudeen v. Murugiah
1952
Present: Gunasekara J. and Swan J.
JAIaSTUDEEN, Appellant, and MURUGIAH, Respondent
S. C. 140—D. G. Matale, 203
Collation—“ Bring into hotchpot or collation ”—Matrimonial Rights and InheritanceOrdinance (Cap. 47), s. 35.
When immovable property which was the subject-matter of a donation isbrought into collation under section 35 of the Matrimonial Rights and Inheri-tance Ordinance, the legal title to it continues to remain with the donee anddoes not vest in the administrator of the deceased donor’s estate.
PPk A T, from a judgment of tlie District Court, Matale.
N.E. Weerasooria, Q.C., with. Ivor Misso, for the plaintiff
appellant.
E. B. Wikramanayake,defendant respondent.
Q.G., with D. S. Jayawickreme, for the
Cur. adv. vult.
(1950) A. C. 459 at p. 480.
GTTNASEKAJtA J.— Jainudeen v. Hurupiah
447
September 18, 1952. Gunasekara J.—.
This is an appeal against an order dismissing an action for declarationof title to land and ejectment of the defendant and damages. Theproperty was gifted by one Ponniah to his son Sellasamy in 1927 and thelatter mortgaged it in 1944. It was sold in 1949 in satisfaction of adecree for the enforcement of the mortgage and was purchased by theplaintiff, who obtained a fiscal’s conveyance in 1950. Meanwhile,Ponniah died in 1936, and in the proceedings relating to the adminis-tration of his estate it was decided by the District Court of Kandy onthe 3rd February, 1941, that this property had been gifted to Sellasamyon the occasion of his marriage “ and that its value was Rs. 6,000 andthat it must be brought into collation The decision was affirmed inappeal by this Court and by the Judicial Committee of the Privy Council.The defendant, who is the present administrator of Ponniah’s estate,claims that by this order Sellasamy was divested of his title and theproperty became part of the estate, and that the defendant is in lawfulpossession of it as administrator. This view of the effect of the orderwas accepted by the learned District Judge and the plaintiff’s actionwas accordingly dismissed.-
Collation is explained in Steyn’s Law of Wills in South Africa 1 asfollows :—
“ Collation is the duty incumbent on all descendants who as heirswish to share in the succession to an ancestor, either by will or abintestate, of accounting to the estate of the ancestor for certain kinds ofgifts and debts received from or owing to him by them during hislifetime.
Thus, if a child, grandchild or more remote descendant wishes toinherit from a parent, grandparent or remote ascendant from whom hehas during his lifetime received any property or money as his portionof his inheritance, or as a marriage gift or otherwise for his advance-ment in trade or business or such like, he will, before the division of theestate, have to bring into or collate with the estate of such parent, &c.,either what he may have so received or enjoyed, or the true value ofsame at his option, so that the whole estate, thus augmented, maybe divided in terms of the will of the testator or according to the lawof succession ab intestato. ”
Relying on this and other citations from text-writers, Mr. Weerasooriyacontends that under the Roman-Dutch Law a child of the deceasedperson is not liable to collation unless he claims a share in the inheritanceand that the liability may be discharged by his surrendering the propertyor paying its true value at his option ; and that, consequently, the effectof the order made on the 3rd February, 1941, in the testamentary caseis only,that Sellasamy cannot share in the inheritance unless he bringsinto account the gift or its value. Mr. Wikramanayake’s reply is thatthe Roman-Dutch Law has been superseded by section 35 of the Matri-monial Rights and Inheritance Ordinance (Cap. 47) and that the liabilityis not dependent upon the heir’s claiming a share in the inheritance,and is moreover a liability to surrender the property itself to the executor
1 1935 Edn., p. 103.
418
GIINASJEKARA J.—Jainudeen v. JSelurugiah
or administrator if it is within his power to do so at the time of thedeceased’s death, without any option merely to bring into account itsvalue ; and that therefore the order in question was in effect a declarationof title in favour of the estate and operated as a cancellation of Ponniah’sgift to Sellasamy.
The section is in these terms :
“ Children or grandchildren by representation becoming with theirbrothers and sisters heirs to the deceased parents are bound to bringinto hotchpot or collation all that they have received from theirdeceased parents above the others either on the occasion of theirmarriage or to advance or establish them in life, unless it can be provedthat the deceased parent, either expressly or impliedly, released anyproperty so given from collation .”
This provision no doubt altered the law as regards liability to collation,but it did not give a new meaning to the expression “ bring into hotchpotor collation ”, which was a term of art that was already known to thecommon law. Moreover, it may well happen that where some of thechildren are liable to collation, “ all that they have received from theirdeceased parents above the others ” is not represented by any specificparcel or parcels of land or any other specific thing, and that the excesscan be brought into collation only by bringing its value into account.It seems to me that the context of the expression “ bring into hotchpotor collation ” in the section confirms rather than negatives the view thatthe legislature did not intend to take away the heir’s option to dischargea liability to collation by bringing the value of the property into account.
In support of the view that the order of the 3rd February, 1941, in effectdeclared Ponniah’s estate to be entitled to the property, Mr. Wikrama-nayake contended that what was in issue was whether the property wasrightly included in the inventory. There was no issue, however, as to thetitle to the property. The issue as formulated by the District Judge inhis order in that case was
“ whether the 1st respondent (Sellasamy) who was given a deedof gift No. 7881 of 1927 (1113) by his father Ponniah should bring theproperty gifted into collation if he wishes to inherit as an heir. ”
The decision that the property must be brought into collation did nothave the effect either of declaring that Ponniah’s estate was entitled toit or of divesting Sellasamy of his title under the deed of gift. Thejudgment that is appealed from must therefore be set aside and theplaintiff must be declared entitled to the property and to have the defen-dant ejected therefrom. There is no evidence in support of the plaintiff’sclaim for damages and he is therefore not entitled to a decree for damagesThe defendant must pay the plaintiff’s costs in this Court and the Court'below.
Swan J.—I agree.
Appeal allowed.