Kallamma v. Sellasamy.
1941Present: Howard C.J. and Soertsz J.
KALLAMMA et al. v. SELLASAMY.
36—D. C. Kandy, 5,437.
Collation—Gift given on the occasion of marriage—Marriage does not take place—Gift liable to collation—Matrimonial Rights and Inheritance Ordi-nance, s. 35 (Cap. 47).
Under section 35 of the Matrimonial Rights and Inheritance Ordinancetwo classes of gifts are liable to collation, viz., (a) those given on theoccasion of marriage, and (b) those given to advance or establish childrenin life, unless it appears either expressly or impliedly that it was intended'that they should be released from that liability.
For a gift to fall into the former category, it must be clear that thedonor by way of partial anticipation of what the donee would ultimatelyget from him makes him a gift because so important an event in his lifeas marriage is taking place or is about to take place.
The fact that the marriage did not take place does not release the giftfrom liability to collation.
For a gift to fall into the latter category it must be elear that when thedonor made the gift he had in contemplation the fact that the doneewould inherit a certain share of his estate on his death and that in' anticipation of that event decided to draw on the ultimate share in order,presently, to advance or establish the child in life.
^^PPEAL from a judgment of the District Judge of Kandy.
The question argued in appeal was whether the deed of gift No. 7781is liable to collaition within the meaning of section 35 of the MatrimonialRights and Inheritance Ordinance.
H. V. Perera, K.C. (with him R. C. Fonseka), for the first respondent,appellant.—The point for adjudication is whether the property gifted tothe appellant by his father is liable to collation. The Roman-Dutch lawon collation is much wider than our law. See Maasdorp’s Institutes ofSouth African Law, vol. I., p. 172 et seq, (5th ed.). Our law on the subjectis stated in section 35 of the Matrimonial Rights and Inheritance Ordi-nance (Cap. 47). That section introduces an encroachment on the oldRoman-Dutch law and restricts collation to the two kinds of gifts mentionedtherein.
To understand the nature of the gift, one should not go beyond thewords of the deed. The attendant circumstances should not be consideredfor the purpose of contradicting the declarations in the deed. It cannotbe said that the gift in the present case was given to advance or establishthe appellant in life. What was conveyed was merely a reversionaryinterest. Norcanthe gift be regarded asone made on the occasion of
marriage. Ithadonly a casual or accidentalconnection with the
marriage. On the face of it, the deed of gift was given for love andaffection. The District Judge himself has found that this is a simple andordinary gift,buthas strained the factsof thecase to bring it into
collation. Simpledonations, unless madeon theoccasion of marriage,
cannot be subjected to collation—Cooray v. Perera Further, themarriage must take place before the deed can be regarded as one given onthe occasion of marriage. In this case, the marriage did not take place.
* (1883) 5 S. C. C. 113.
SOERTSZ J.—Kallamma v. Sellasamy.
N. Nadarajah for the second, third, and fourth respondents.—It is inevidence that the appellant gave notice of marriage. The deed of giftwas clearly given on the occasion of this contemplated marriage. It wasa donatio ante nuptias and is liable to collation—Cooray v. Perera Thereservation of the life-interest does not detract from the character of thegift.
'Hie gift can also be regarded as one made to advance or establish theappellant in life. A large sum given to a son in one payment' might bepresumed, in the absence of evidence, to be an advancement by way ofportion. See Lewin on Trusts (1927), p. 374, note (e).
The onus is on the appellant to show that his father waived all rightsto collation. Section 35 of the Matrimonial Rights and InheritanceOrdinance and Cooray v. Perera (supra) justify the -conclusion reached bythe District Judge.
H. V. Perera, K.C., in reply.—Ante-nuptial gifts are operative onlywhen the marriage takes place. As there was no marriage it was opento the donor to have claimed a revocation, but he did not do so, thusshowing that he waived his rights in favour of the appellant. The giftwas a simple one.
Cur. adv. vult.
June 17, 1941. Soertsz J.—
The question that arises for decision on this appeal is whether thesubject matter of the deed of gift No. 7781 executed on November 1, 1937,is liable to collation as a gift made by a father to a son, within the meaningof section 35 of the Matrimonial Rights and Inheritance Ordinance (Cap.47, Legislative Enactments).
There appears to have been much controversy among Roman-Dutchlaw text writers and cpmmentators in regard to the kind of gifts that wereliable to be brought into collation. There is a learned discussion on thesubject in the case of Cooray v. Perera*, but in view of the fact that tiielaw governing us in regard to this matter is to be found in section 35 ofthe Matrimonial Rights and Inheritance Ordinance, there is really nooccasion for us to examine in detail what the position was before 1876,although it will be necessary to make brief reference to the earlier law inorder to elucidate the law as it stands. Section 35 enacts as follows : —
“ 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 their deceasedparents above the others either on the occasion of their marriageor 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. ”
The clear implication of this provision is that two classes of gifts arenow liable to collation, namely, (a) those given on the occasion of marriage,and (b) those given to advance or establish children in life, unless itappears either expressly or impliedly that it was intended that theyshould be released from that liability.. But under the Roman law, and
* (1SS3) 5 s. C. c. 113.
1 Ibid at 114.
SOERTSZ J.—Kallamma v. ScHasamy.
in the Roman-Dutch law originally, in the absence of indication to thecontrary, all gifts were liable to collation for the presumption of law wasthat a parent intends that there should be perfect equality among hisheirs (see Nathan Common Law S. A., vol. III., p. 1933). But, later on,gifts made simpliciter, gifts of a remuneratory character, and gifts oradvances made for preparing and qualifying a son for a profession or forteaching him a trade or calling were free from collation if there wasnothing to show a contrary intention. (See Ibid p. 1934). But underthe law that governs us to-day, the material consideration is whetherwhat was given was given “ on the occasion of marriage ” or “ to advanceor establish in life Consequently it would hardly be relevant to inquirewhether a gift made on the occasion of marriage is a dotnatio simplex or adonatio remuneratoria for in either case, it would be liable to collationunless expressly or impliedly exempted from collation. Such an inquirywould, however, be relevant for the purpose of ascertaining whether thereis an implied exemption to be gathered from the nature of the gift and fromother circumstances.
On the material before us in this case, I do not think it can be said thatthe gift in question was given to advance or establish the first respondent-appellant in life. The phrase “ advance or establish in life ” must begiven a special meaning or the result would be that every gift from parentto child would be liable to collation inasmuch as a gift by conferringa benefit, indirectly advances or establishes one in life. For a gift tofall into the class of gifts intended to advance a child in life it must bereasonably clear from all the circumstances that when the parent madethe gift he had in contemplation the fact that the child would inherit acertain shai£ of his estate on his death, and that in anticipation of thatevent decided to draw on the ultimate share in order, presently, to advanceor establish the child in life. In this case, there are no circumstances fromwhich such an inference can be drawn. At the date of the gift the doneewas already established in life' in a manner suitable to his social status,and he continued in the same way after the gift.
The only question, then, is whether this was a gift “on the occasion ofmarriage ”, and the answer to that, of course, depends on the true meaningof the phrase on the occasion oj the marriage. I do not think it can bemaintained that it means on the occasion on which the marriage takesplace. It must, I think, be given a wider meaning and made co-extensivewith .the connotation of the Latin phrase employed by the Roman-Dutchtext writers—propter nuptias—which would include a gift “ in contempla-tion of marriage ”. Given that meaning, I find it difficult to accede toMr. Perera’s contention that the liability to collation of a gift “ propternuptias “ depends on whether or not the contemplated marriage takesplace, and that if it does riot, the donor is entitled to get back the gift onthe ground of a failure -of consideration, and that if he omits to do thatand dies intestate, there can be no question of collation. In the SouthAfrican case of Jooste v. Jooste’s Executor1 referred to in Vol. III., Nathanp. 1933, it was stated that “advancements made by parents and debtsowing to them but not satisfied during their life-time must, in the absence
1 8 S.C. 288.
– SOERTSZ J.—Kallamma v. Sellasamy.
of any indication of a wish to the contrary, be collated …. Thefact that the parent -did not sue the child …. is not, taken byitself, a sufficient indication of a wish to the contrary ”.
The real question seems to be whether the donor by way of partialanticipation of what the donee would ultimately get from him, makeshim a gift because so important an event in his life as marriage is takingplace, or is about to take place. If that is what appears from all thecircumstances, the gift must be regarded as one made “ on the occasion ofmarriage ” and is liable to collation unless it can be prdved that thedeceased parent, expressly or impliedly, "released the property fromcollation.
In this case, the evidence is very strong, almost overwhelming, that amarriage between the donee and a bride whom the donor greatly desiredfor the donee was imminent at the time of the gift, and although there isnothing in the deed itself by way of reference or allusion to this marriage,—an omission probably due to the Notary keeping to the beaten track ofthe phraseology of the ordinary deed of gift,—the conclusion seemsirresistible, in view of the other documentary evidence, that the impendingmarriage was the occasion for the gift. Once that position is reached,it is for the donee to show that the donor expressly or impliedly releasedthe gift from collation. It is impossible to hold that the donee has shownthis. All he can point to is that although the marriage did not take place,the gift was not recalled. But that is explainable on the hypothesis thatthe donor was satisfied that the gift having been made " on the occasionof marriage ” would be liable to collation. Besides as I have alreadypointed out by reference to the South African case the failure to sue isnot a sufficient indication of a wish to exempt. Moreover, the documentRD 4 negatives the view that there was a release from collation.
Mr. Perera submitted that, in the circumstances of this case, the mostthat can be said on behalf of those claiming collation is that the gift wasmade in order to induce the donee who does not appear to have beenvery enthusiastic about the proposed marriage, to surrender his reluctanceand marry the bride his father had chosen, and he argued that a gift sogiven is not liable to collation because, he submitted, it could not be saidthat such a gift is made “ on the occasion of marriage ” or in the Latinpfirase “ propter nuptias ”. The authority of Voet appears to me to beagainst this contention. He says (bfc. 37.7.3) : —
“ Quod vero interpretes nonnuli voluerunt, conferendas non esse res. illas, quas praeber donationem propter nuptias pater filio dedit, utpotiretur nuptiis puellae nobilis, a qua alioquin tulisset repulsam,admittendum nonest : eo quod id quod amplius datum, re ipsa parcenseri debet ipsius ante nuptias donationis, nec aliud videri potestpater egisse, quam quod amplioris propter nuptias donations ostenta-tione nurum pellexerit ad nuptias sui filli quern admodum et generosdotis majoris specie pellici solitos fuisse colligi potest ex 1. pen. ff dejure dot. Tuldenus ad tit C. de collation num. Peregrinus defidei commissis art. 36. Num. ' 134 Ant. Matthaeus de succession:disput: 17.n.l0. Vinnius de collationib. Cap. 13.n.l3.
520WIJEYEWARDENE J.—Ratna-yafce v. de Silva.
Freely rendered, the passage just quoted says : —
“ Indeed, the opinion of some commentators that those things neednot be collated, Which, a father has given to his son over and above thegift in view of his marriage, so that he might be able to secure analliance with a young lady of good social standing who might otherwisehave rejected him, cannot be accepted, for the reason that, what hasbeen given over and above, must needs be reckoned a part of thepre-<nuptial gift; nor would it appear that in such a case, the fatherhad any other object than by means of a display of a larger pre-nuptialgift to entice a daughter-in-law to a marriage with his son, just as sons-in law used to be attracted by the appearance of a larger dowry, ascan be gathered form ”—and Voet goes on to cite considerable authorityfor this proposition.
If'something given to a son to attract a reluctant bride to marriageis subject to collation, it necessarily follows that a gift to induce arecalcitrant bridegroom to the same end is likewise subject tocollation.
For these reasons I reach the conclusion that the property in questionis liable to collation! The appeal must therefore be dismissed with costs.
Howard C.J.—I agree.
KALLAMMA et al. v. SELLASAMY