080-NLR-NLR-V-27-KANDAPPA-v.-CHARLES-APPU-et-al.pdf
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Present: Dalton J. and Jayewardene A. J.KANDAPPA v. CHARLES APPU et al.302—D. C. KegaUa, 6,652.
Kandyan law—Dowry deed—Valuable consideration—Revocability.
Under the Kandyan law a deed of gift given. by parents inpursuance of a promise before marriage, as dowry, before or at thetime of marriage or even after marriage is one for valuableconsideration, and is irrevocable.
In such a case the donees are not bound to prove that the deedoperated as an inducement to contract the marriage.
Ram Menika v. Banda Lekam1 considered.
P
LAINTIFF sued first defendant, his son-in-law, for the declara-tion of title to a land on the ground that the deed of gift (D2)
by which he gave the property to his deceased daughter, the firstdefendant’s wife, has been revoked by a subsequent deed (PI). Thedefendant maintained that the deed was irrevocable as it was givenby way of dowry. The learned District Judge held that the deedof gift was executed as a marriage settlement and that the defendantwas induced to marry the plaintiff’s daughter by reason of thesettlement. He dismissed the plaintiff’s action, holding that thedeed was irrevocable.
Hayley (with him C. V. Ranaivake), for plaintiff, appellant.
H. V. Petrera for defendant, respondents.
March 29,1926. Jayewardene A.J.—
In this case the plaintiff is suing his son-in-law and his grand-children, who have been added as parties, for a declaration that heis the owner of the land described in the plaint, on the ground thatthe deed of gift No. 9,670 of June 22,1907, (D2) by which he giftedthe property to his deceased daughter, the first defendant’s wife,ha6 been revoked by him by a subsequent deed, No. 30,237 of March23, 1921 (PI). The defendants contend that the deed of gift isirrevocable as it was given as dowry and as an inducement to thefirst defendant to marry the plaintiff’s daughter. The learnedDistrict Judge found on the facts that the deed of gift was executedas a dowry deed of gift or as a marriage settlement, in considerationof first defendant’s marriage with the plaintiff’s daughter, and that
1926.
75 N. L. li. 407.
12(61)29
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1980. the first defendant was induced to marry the plaintiff’s daughter
by reason of the said gift or settlement. He held, therefore, that
Ja.ykw.ab- the deed of gift was irrevocable, and dismissed plaintiff’s
DUNK A.J. ,.6
action.
Kandapfmv. CharlesAppu
It is contended for the plaintiff that the deed of gift does not fallwithin the class of gifts which are considered irrevocable under theKandyan law, and that the deed was not, in fact, a dowry deed,and was not the consideration for the first defendant’s marriage, asit was executed after the marriage and granted not in his favourbut in favour of his wife. It is, no doubt, true that the deed wasexecuted about a month after the marriage, but the evidence shows,and the learned District Judge finds, that the plaintiff had agreedto settle property worth Rs. 1,000, on his daughter on her marriage,that the defendant, when he found on the eve of his marriage thatthis had not been done, threatened to break off the engagement, andthat the plaintiff then agreed to give instructions to a notary todraw up a dowry deed the next morning, and accordingly gaveinstructions to the notary early on the morning of the weddingday and in the result this deed of gift was drawn up and signedsome days later. The plaintiff admitted that he went to the notaryon the morning of the wedding day and instructed him to draw upthe deed, and that the registration“of The marriage took place afterhe had given instructions for the deed.
On these facts the District Judge found, in my opinion rightly,that the promise of the plaintiff to give this deed of gift was whollyor partly the inducement to contract the marriage. That being so,the fact that the deed was executed after the marriage is of littleconsequence. Is a deed of gift given under such circumstancesrevocable under the Kandyan law ? The text writers make nospecial'reference to gifts in consideration of marriage, and suchgifts are not included among irrevocable gifts under that law,Perera’a Armour pp. 91 and. 95. There are, however, severaldecisions of this Court in which the law applicable to cases of thiskind has been discussed and laid down. The first case is Ukku v.DintutvaJ In that case a deed of gift had been given by thehusband’s father in favour of his son and daughter-in-law, and onthe face of the deed it appeared to be a mere voluntary deed madeout of free will and affection. The facts proved, however, showedthat the deed was given in consideration and in contemplation of avalid marriage being effected between the grantees. This Court held,that as the marriage of the parties constitued valuable considera-tion for the deed, it became irrevocable. It is to be noted thatthere, as in the present case, the promise was made before themarriage, but the deed was executed after its registration. But in'Dingiri Menika v. Dingiri Menika,2 it was held, that a donation1 (1878) 1 S. C. C. 89.1 (190G) 9 X. L. /?. 131.
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made by a person in favour of bis daughter-in-law in contemplationof her marriage with the donor’s son was revocable under Kandyanlaw, and in the course of his judgment Lascelles A.C.J. said :—
M This exception to the general rule (that is of irrevocability asextended by this Court in the case of Heneya v, Sana1)where it was decided that a gift of land purporting to bemade in consideration of assistance rendered and 'moneyadvanced by the donee to the donor was not revocable underKandyan law. Sir J. Phear in this case said : * We thinkit plain that the deed A, upon which the plaintiff relies ashis ground of title, was a conveyance to him from theowner for valuable consideration of a very substantialcharacter.'
“ It has been pressed upon us in the present case that the so-calledgift, being in consideration of the marriage of the doneewith the donor's son, was in reality a transfer for valuableconsideration, and so within the principle of Sir J. Phear’sjudgment.
“ It is true that by English law marriage is for certain purposes avalid consideration, but this circumstance is not sufficientto establish the proposition that donation in con«id«PRtinn-of marriage constitutes an exception to the general rule ofKandyan law with regard to the revocable character ofdonations.
“ Ths fact that there is no mention of any such exception in thetext-books on Kandyan law and in reported decisions isalmost conclusive evidence that it does not exist, fordonations in consideration of marriage are among thecommonest of transactions."
and Middleton J. said :—
<c We have been referred to no decisions of this Court showingthat it has ever been held that a grant or donation inconsideration of marriage under the Kandyan lawwas irrevocable, and such authorities on the customarylaw to which we have access do not appear to contemplateany exception of such a nature to the general rule ofrevocability.
In the case before us the donee has in fact accepted by signingthe later deed (marked Dl) the modification of the foimergifts indicated in that document. It hardly lies, therefore,in her mouth to object to the variation of the gifts whichshe has according to the Notary's evidence specificallyagreed to in that deed."
1 (1878) 1 S. C. C. 47,
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Jaybwar-DENE A.J.
Kandapjav. CharltsAppu
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1926.
Jaybwa»*I-BNE A.J.
Kandappat?. Charles4ppu
The case of Ukku v. Dintuwa (supra) is not referred to in thejudgments, and was evidently not cited at the argument. Thefact mentioned by Middleton J. that the donee on the first deedwas a party to the second deed would almost amount to anacknowledgment by her of the donor’s right to revoke and a waiverof her own right to object to the revocation The Acting ChiefJustice, however, made no point of this fact. This case was citedat the argument in Tikiri Kumarihamy v. de Silva} and wascommented on by Hutchinson C. J. He said :—
“ The appellant referred us to Dingiri Menika v. Dingiri Menika(supra) in which a grant of land to a woman, in considerationof the fact that the grantor’s son was to be married to her,was held to be revocable, on the ground that a grant ofthat kirrl is a gift and not a transfer for value. Thereasoning of the Court was this. All ‘ donations ’ arerevocable; a grant in consideration of marriage is a‘donation,’ therefore it is revocable, there being noauthority in Kandyan Law to the contrary. The argumentassumes that such a grant is a ‘ donation,’ that is, a gift.That question, however, does not arise h ire . . . .”
The learned Chief Justice appears to question the law as laid downby Lascelles A.C. J.
The question was again raised in Ram Menika v. Banda Lekam(supra), where the donor, the father, had gifted certain property asdowry to his daughter on the occasion of her marriage. The donorsubsequently executed another deed conveying the same propertyto a third party The donee contended that the gift in her favourwas for valuable consideration, namely, her marriage, and wasirrevocable. This Court (Pereira and Ennis JJ.) held, that as therewas nothing to show that the gift was wholly or partly a reason orinducement to contract the marriage, it must be regarded as a free-will gift, and so revocable. It distinguished the case of Ukku v.Dintuwa (supra), and purported to follow Dingiri Menika v. DingiriMenika (supra). Pereira J. who delivered the judgment of theCourt proceeded to state the rule to be applied in deciding thequestion whether a deed of gift is revocable or not. In his opinion,when a dead of gift has been given in consideration of something tobe done by the donee in the future, as for instance, in considerationof an intended marriage, and that thing is done by the donee beinginduced to do so by the giving of the deed, it would be inequitableto allow the deed to be revoked. In fact, such a deed would notfall within the category of donations. But where a deed is givenas a return for something already done, e.g.. in consideration of amarriage that lias already taken place, or even in contemplation ofmarriage in cases where the donor is under no legal liability to give1 (1909) 12 N. L. R. 74.
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such a deed, it is a deed of gift in the real sense of the term, asthere is no consideration in law but a mere inducement or motiveactuating the donor to exercise his generosity. He thought thatUkku v„ Dintuwa (supra) came within the first class, and DingiriMenika v. Dingiri Menika (supra) within the second, as he thoughtthat there was nothing to show that the gift was a reason or induce-ment to contract a marriage. In Ukku v. Dintuwa (supra) thefather-in-law had promised to his intended daughter-in-law that ifshe should marry his son he would execute a deed making someprovision for her, and on the faith of this promise she had marriedthe donor’s son. In his opinion there was no real conflict betweenthese two cases. Then dealing with the point that the deed of giftin question had been given as dowry to the daughter, hesaid:—
*’* It is said that this is a dowry, and that dowry is usually theinducement agreed upon, in the course of negotiations fora marriage, for contracting the marriage. That may be soin some cases, but the proposition is not one of universalapplication. Adowry maybe a spontaneous and free will giftby a parent to the contracting parties. It may even comeas a surprise on the donees. Each case must depend uponits own circumstances. In the present case all the materialthat we have before us is that at (not before) the marriageof Bam Menika, the donor on the deed in question promisedto give Bam Menika lands of the value of Rs.1,000, and afterthe marriage the donor donated the lands promised.There is nothing to show that this promise was, wholly orpartially, the inducement to contract the marriage. Foraught that appears on the record, it was a freewill gift, themotive for it being the marriage that at the time of thepromise was taking place.”
The result of this decision is to modify the broad principle laiddown in Dingiri Menika v Dingiri Menika (supra), and to declarethat a deed of gift given as dowry, or in contemplation of marriage,would be irrevocable if it operated an an inducement to contract themarriage.
In the case of a deed of gift given as dowry to a bride by herparfents who may be said to be under a legal liability to give it, thelaw regards it as a conveyance for valuable consideration, and Ido not think the donee should be called upon to prove that themarriage took place as a consequence of, or was induced by thedowry, that would be presumed. The distinction drawn by thelearned Judge should, I think, be restricted to cases where gifts are
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Jayswab*DENE A.J.
Kandappav. CharlesAppu
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1926.
Jayewar.
BENE A J.
Kawiappav. OharlesAppu
given on the occasion oi a marriage by friends or relations of the bride.For, as Hutchinson C.J. said in Jayasekera v. Wanigaratne1:—
“ A conveyance of land by father to, or for the benefit of, hisdaughter by way of dowry on her marriage is, primd facie,a conveyance for valuable consideration. It is posi ible, ofcourse, and it is a thing which is done every day, for theparents or friends of a bride to give her a present on theday of her marriage, a pure gift, which does not form theconsideration or any part of the consideration for thebridegroom marrying her. But that is not dowry. And inthis country, as in most others, the dowry is almost alwaysthe consideration for the man taking the woman as hiswife. 'The fact of the deed being called a ‘ deed of gift *cannot make any difference, if it is clearly proved whatthe real nature of it was.”
See also Theodoris Fernando v. Rosalin Fernando.2
I would say that in every case where the parents give a deed asdowry before or at the time of marriage, or even after marriage, if itbe in pursuance of a promise made before marriage the deed shouldbe regarded as a deed for valuable consideration, and so irrevo-cable . I do not think that the donees should be called upon to provethat the deed operated as an inducement for the marriage. Thepresent case can also be distinguished from Ram Mentha v.Banda Lekam (supra) on the facts, for here the promise was beforethe marriage and it was after the donor had given instructions tothe notary that the first defendant consented to marry the plaintiff’sdaughter. The promise was, therefore, clearly the inducement tocontract the marriage. These facts, however, bring D 2 within theclass of donations which, in the opinion of Pereira J. are irrevocable.As regards the contention that as the dowry deed was in favour of thedaughter, and not in favour of the son-in-law, there was no valuableconsideration because it was not an inducement for the daughter tomarry the first defendant, and the husband derived no benefit from,and had no control over the wife’s property, the parties beingKandyans, I do not think there is any substance in it. The husbandderives advantage from the property settled on the wife. He isrelieved to some extent from the provision which he would otherwisehave to make for her. If he lived amicably with his wife, her incomewould contribute to the expenditure of the family which wouldotherwise fall on him exclusively. During marriage the question ofseparate property would hardly arise and the income will be used aB acommon fund for the benefit of the wife and family, and the propertyitself will be under the control and management of the husband.The husband will therefore obtain considerable assistance in sustain-ing the onera matrimonii from the dowry property of his wife. Such
M1909) 12 N. L. R. 364 (365)._ a (1901) 5 N. L. R. 230.
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a deed is, in my opinion, for valuable consideration even asregardsthehusband, as it operates as an inducement to him to contract themarriage. In the local cases I have cited : Theodoris Fernando v.Rosalin Fernando (supra), and Jayasekera v* Wanigaratne (supra),the deed was in favour of the wife, and in VkJeu v. Dintuwa (supra)it was in favour of the husband and wife. In all these cases, thedeeds were held to be for valuable consideration. And in RamMenika v. Banda Lekam (supra), although the deed was in favourof the donor's daughter, it was not suggested that that factprevented the deed from being regarded as one for valuableconsideration.
The dowry deed in question in this case is, therefore, for valuableconsideration even as regards the first defendant, the husband, andis irrevocable. The appeal will be dismissed with costs.
Dalton J.—I agree.
Appeal dismissed.
1926.
Jayhwab-XHBNB A.J.
Kandappav. CharlesAppu