8 AMARAKOON, C.J. —Rajadurai v. Alahadevan
1978Present: Samarakoon, C.J., Ismail, J. and
KANAPATHIPILLAI RAJADURAI, Defendant-Appellant
AMBIKAPATHY MAHADEVAN and ANOTHER, Plaintiffs-
S. C. No. 318/74 (F)—D. C. Jaffna No. 4898/MS
Promissory Note—Case presented on basis that document is a promissorynote—Need for consideration and for delivery of note to payee—Enforceability—Bills of Exchange Ordinance (Cap. 82) sections85, 86.
Where a case was presented to Court on the basis that a writing(PI) was a promissory note and action had been instituted underChapter LIII of the Civil Procedure Code, but it was found at thetrial that there had been no consideration on the alleged documentnor any delivery thereof to the payee—
Held : That the plaintiff had failed to prove that the documentsued upon was a promissory note and the action could not1 succeed.The finding of the learned District Judge that judgment could beentered for the plaintiffs on the basis that the said document PItogether with another deed produced at the trial created an enfor-ceable family settlement could not be supported.
Cases referred to:
Jinadasa v. Silva, (1932) 34 N.L.R. 344.
Sendirigapitiya v. Demalamane, (1913) 16 N.L.R. 478.Paranipalam v- Arunachalam, (1927) 29 N.L.R. 289.
Appeal from a judgment of the District Court of Jaffna.
C. Thiagalingam, QC., with K- Kanag-Isvaram, for thedefendant-appellant.
No appearance for the plaintiffs-respondents.
Cur. adv. vult
July 27, 1978. Samarakoon, C.J. *
The plaintiffs-respondents (husband and wife) sued the defen-dant-appellant for the recovery of a sum of Rs. 10,000. The actionwas instituted under the provisions of Chapter LIII of the CivilProcedure Code. The plaint is dated 10th August, 1972. It allegedthat by Deed No- 6425 dated 9th June, 1962, (D2) S. M. Kanapalhi-pillai the father of the 2nd plaintiff-respondent and the defen-dant transferred to the defendant his business known as“ Pillaiyar Vilas ” for cash to be paid to the father and the father’sbrother in instalments. Para 3 of the plaint alleged that “ in factthe consideration for the said transfer was in addition to thecash agreed to be paid by the defendant to the said Kanapathi-pillai in instalments and by the defendant to his full brotherSivalingam was the writing No. 2328 dated 9th October 1966 (PI)”
SAMARAKOOX, C.J. —Rajadurai v. Mahiuiaoan
whereby the defendant promised and undertook to pay to thesecond plaintiff and three others F.s. 10,000 each at the age ofmajority or on marriage. The plaint went on to state that thoughthe Deed stated it to be a Deed of Agreement “ it is in fact aDeed of Promise to pay money”. The plaintiffs alleged thatthe defendant failed to honour the promise when they married.The defendant denied that there was such promise and deniedliability to the plaintiffs-respondents. At the trial it was admittedthat the said Deed No. 6425 was in fact a transfer though pur-porting to be a donation. The learned Judge held that D1 and Pitaken together create enforceable family settlements and enteredjudgment for the respondents as prayed for. The defendant hasappealed against this order.
PI recites that in consideration of the Deed of Donation D2and in consideration of the love and affection the defendantbears unto his father and the father’s three daughters he agreesand covenants that he will pay Its. 10,000 to' each of the daughterson their attaining majority or on then- marriage. The issue raisedwas on the basis of a promise by the defendant to pay money tothe 2nd plaintiff and her two sisters. This is not a contract forthe benefit of third parties as known to the Roman Dutch Law(see Wesssls—Law of Contracts, Ed. 2 page 513 section 1753) andthe Law of Sri Lanka, Jinadcsa v. Silua, 34 N.L.R. 344. It wasconceded at the trial that PI was not a donation or gift as therewas no acceptance. The case; that was presented toCourt was that PI was a promissory note, a positionthat was not presaged in the plaint. Counsel for therespondent relied on the Bills of Exchange Ordinance (Cap.82). A promissory note is defined in section 85 of that Ordinance.No doubt a particular form of words is not necessary for the vali-dity of the note but the form must be such as to show an intentionto make a note. Sendirigapitiya v. Devialamane, 16 N.L.R. 478.This document PI is notarially attested, it is termed a covenantand agreement, it mentions the method of recovery, and it pro-vides for a succession should anyone of the persons be non-exis-tent. Furthermore, there is no consideration. The deed of dona-tion referred to is P2, but it was agreed at the outset betweenparties that it was in fact a deed of transfer on which moneywas paid. This consideration therefore was non-existent. “Loveand affection ” is not consideration under the English Law (whichgoverns the case) to support a promise, and therefore PI wasnot enforceable. Parampalam v. Arunachalam, 29 N.L.R. 289 at293- There was no delivery of the note to the alleged payee(Vide section 86 of the Bills of Exchange Ordinance). The plain-tiffs do not appear to have oven known of its existence at the
'VH AM OTHERAM. J.—Randeniya v. C. WE.
time it was executed because they pleaded that it was executedin Jaffna but, after a copy of it was obtained, it was discoveredthat the place of execution was Pungudutivu. The Plaintiffs havetherefore failed to prove that PI was a promissory note. Thelearned Judge’s finding of a settlement cannot be supported. Thiswas not the contention of the plaintiffs. I would therefore allowthe appeal. However, there will be no costs of appeal or in theDistrict Court.
Ismail, J.—I agree.
Gitnasekera, J.—I agree.