088-NLR-NLR-V-12-JAYESEKERE-v.-WANIGARATNA-et-al..pdf
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1909.
November 26.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
JAYESEKERE v. WANIGARATNA el al.
D. C., Galle, 8,720.
Conveyance for dowry is for valuable consideration, though called gift in
deed—Priority by registration—Acceptance.
A conveyance of land by a father to his daughter by way ofdowry on her marriage is, primd facie, a conveyance for valuableconsideration. Such a deed gains priority over an anterior deedof sale by prior registration.
The fact of such a deed of conveyance being called a deed ofgift cannot make any difference, if it is clearly proved what thereed nature of it was.
No question of acceptance arises with respect to a dowry deed.
A
PPEAL from a judgment of the District Judge of Galle (W. E.Thorpe, Esq.).
This was an action for the partition of Kabarayamullewatta-addarakumhura, 68 kurunies in extent. The original owner wasone Dines. Plaintiff-appellant, who married a daughter of Dines,claimed, inter alia, 30 kurunies by “ gift deed ” (P 2) as dowry at
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marriage, and sought partition according to pedigree P 1 filed in 1909.the case. P 2 was dated Deoember 3, 1884, and was registered on November 26.May 26, 1885. It was not accepted on the face of it.
Plaintiff’s rights were contested by the tenth defendant and firstdefendant, respondents (both also sons of Dines), who claimed thewhole field by D 1, by which Dines sold to the first and tenthdefendants on October 21, 1878, the entirety of the field. D 1 wasregistered on November 22,1886. The respondents oontended that,inasmuch as P 2 was a deed of gift, it could not gain priority overD 1 by registration.
The learned District Judge held that D 1 and P 2 were genuine ;that P 2 would prevail over D 1 by registration if if was accepted,and if plaintiff had possession; that there was no acceptance; andthat plaintiff had not possessed the field.
Plaintiff appealed.
, Van Langenberg (with Hayley), for the appellant.
A. St. V. Jayewardene, for the respondents.
The following authorities were cited at the argument:—Fernandov. Fernando} Hamine v. Hamine* ValupiUai v. Katiravaloe,3 DingiriMenika v. Dingiri Metnika et ai.,* Stroud.
Cur. adv. •milt.
November 25, 1909. Hutchinson C.J.—
1 do not assent to every word of the judgment of the DistrictJudge, but I think that the conclusion at which he arrived will haveto be accepted.
The deed P 2 of December 3, 1884, on which the appellant relies,purports to have been executed by Don Dines de Silva in favour ofhis daughter “ on the day of her marriage as dowry.” He had infact previously by deed D 1 dated October 21, 1878, conveyed totwo others of his children the same lands, of which he conveyed apart by P 2, so that it seems that there was some fraud on his partwith regard to one or the other of those deeds. But there is noevidence of any fraud in connection with P 2 on the part of thedaughter or her husband. And a conveyance of land by a fatherto, or for the benefit- of, his daughter by way of dowry on hermarriage is, primd facie, a conveyance for valuable consideration. Itis possible, of course, and it is a tiling which is done every day, forthe parents or friends of a bride to give her a present on the day ofher marriage, a pure gift, which does not form the consideration orany part of the consideration for the bridegroom marrying her.
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. The
1 (1901) 6 N. L. B. 230.* (1892) o Tam. 94.
1 (1906) 1 Bal. 162.* (1906) 9 N. L. B. 131.
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190&. fact of the deed being called a “ deed of gift ” cannot make anyNovember 26. difference, if it is dearly proved what the real nature of it was.Hutchinson As, therefore, P 2 was made for valuable consideration, no ques-tion can arise whether it was accepted or not, and it prevails over. D 1 because it was registered first. The respondents had thereforeto prove title by prescription. They claimed in their answers tohave a prescriptive title, and one of the issues settled was “ posses*sion,” which was doubtless intended to refer to that claim.
The District Judge finds that the plaintiff never had possession,but that possession has all along.been with the first and tenthdefendants in accordance with the sale carried out by D 1 in 1878.He places too much reliance on the fact of the entry of the re-spondents’ names in the Grain Tax Register. He says that theyappear there “ as the sole ownersbut that is not so; the namesentered are “ Don Nik de Silva, D. Don Comelis de Silva, and others.”If the entry of the tenth defendant’s name in 1883 is of any valueas evidence that he was one of the two co-owners under D I, thewords “ and others ” are at least equally strong as evidence thatthose two persons were not the sole owners. The fact is that theseregisters are of no value at all as evidence of the title of the personsentered in them as owners, without evidence as to the persons bywhom and on whose information and the circumstances underwhich the names were entered. The entry of A’s name by anofficer proves nothing in itself, but if it was done on B’s requestor information it would be strong evidence against any claim by B.On the whole of the evidence, however. I do not think that wecould set aside the finding of the District Court and find that therespondents have not proved a prescriptive title, and I think thatthe appeal should be dismissed with costs.
Middleton J.—1 agree.
Appeal dismissed.
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