161-NLR-NLR-V-47-NONA-KUMARA-Appellant-and-ABDUL-CADER-et-aL-Respondents.pdf
Nona Kumara v. Abdul Coder.
467
1946Present: Keuneman S.P.J. and Jayetfleke J.NONA KUMARA, Appellant, and ABDUL CADER et al.,Respondents.
293—D. G. Keg alia, 1,629.
Sale—Deed of transfer for consideration—Consideration not paid—Deed cannot,on that ground alone, be construed as deed of donation.
The plaintiff, when she was a minor, transferred certain lands to thefirst defendant by a deed which, on the face of it, was a transfer forconsideration. She sought to have the deed declared null and voidon the ground that her signature was obtained to it by undue influence,intimidation and threats. The District Judge held against the plaintiffon the questions of undue influence, intimidation and threats. He held,however, although no specific issue was raised, that the deed was adonation, and therefore null and void, merely because the transferordid not receive the consideration 'mentioned in the deed.
Held, that the deed which, on the face of it, was a transfer for con-sideration could not be held to be a donation merely because the transferordid not receive the consideration. The plaintiff’s remedy was an actionto recover the consideration and not to claim a cancellation of theconveyance.
PPEAL from a judgment of the District Judge of Kegalla.
,N. Nadarajah, K.C. (with him E. B. Wihramanayake and C. R.Qunaralne), for the second defendant, appellant.—The District Judge heldthat the deed No. 8038 of January 19,* 1939 (P 6) was a donation byreason of the fact that no corisideration was paid on it. He also hfeldthat the plaintiff was a minor at the time of the execution of the deed.On these grounds the Judge set aside the deed P 6.
The documents and the evidence in the case do not justify the findingof the Judge that the plaintiff was a minor at the time of execution ofP 6.
Even if the plaintiff was under 21 years of age at the time of executionof P 6 she was a major by reason of Muslim Law which is the lawapplicable to her. Vide Narayanan v. Saree Umma et al1. Majeed v.Paramanayagam2 ; The Age of Majority Ordinance (Cap. 53) [for meaningof the expression “ by operation of law 51 see Lyon v. Reed and others 3and Civil Procedure Code, section 502] ; Ameer Ali on Mohamedan Law4th Edition, Vol. II., p. 605 ; Mulla on Mohamedan Law 7th Editionp. 197.
P 6 is a transfer and sale. The plaintiff cannot contradict her deed.Vide Lunaiha Umma v. Hameed* ; Velan Alvan v. Ponny6 ; EvidenceOrdinance, section 92. As between third parties oral evidence may begiven—Rajah v. Nadarajah and another6.
P 6 cannot be regarded as a gift or donation. (1) Plaintiff does notsay so, (2) Plaintiff’s ease was not presented on that footing, (3) The only
1 (1920) 21 N. L. R. 439.* (1915) 1 C. W. R. 30.
• (1933) 36 N. L. R. 196.5 (1939) 41 N. L. R. 106.
s (1844) 13 M <Ss W 285 ai 305-6.6 (1943) 44 N. L. R. 470.
20—XLVH.
19—-H 16792 (8/68)
468
Nona Kumara v. Abdul Coder.
ground on which deed P 6 was held to be a donation was the failure ofconsideration. For a donation animus donandi must clearly be proved.See Meyer 'and others v. Rudolph’s Executors1 ; Maung Koin and anotherv. Ma Shave La and others1 2. Failure of consideration does not giverise to a claim for cancellation of the deed buu only to claim to sue forthe unpaid consideration. See Jayawardane v. Ameraselcera3 * * ; Moha-medu v. Hassim* ; Wessells : Law of Contract 1937 Edition, Vol. II.,paras. 4875 and 4880 ; Berwick : Voet 19.1.21, p. 184.
In Gunasekera Hamine v. Don Baron6 it has been held that a minor’sdonation is void and cannot be ratified. But that position seems to havebeen considerably modified in later cases. See Silva v. Mohamadu8 ;Ahamadu Lebbe v. Amina Umma7 ; Shorter and Co. v. Mohamed8; Brei/ten-back v. Frankel9. The position seems to be that donation and suretyshipare the only void contracts and all other contracts voidable only.
Even a void contract can be subsequently ratified. See Krause :Voet 39.5.9,p. 21; Sande on Restraints, p. 44, sections 88 and 90;Wessels : Law of Contract 1937 ed. Vol. I., p. 286, para. 851.
The Judge has held that P 6 has been ratified and that finding is correct.
L. A. Rajapakse, K.C. (with him M. I. M. Haniffa and M. Abdulla),for the plaintiff, respondent.—If the deed No. 8038 (P 6) is void it cannotbe subsequently ratified. See Qunasekera Hamine v. Don Baron (supra).Where a deed is a nullity no title can pass on the deed, but for greatersecurity restitutio in integrun was applied for by experienced lawyers.See definition of “ Void ” and “ Voidable ” in Wille’s South African LawDictionary; Wilken v. Kohler10; Harrismith Board of Executors v.Odendaal11. See also Anson on Contracts, 17th Edition, p. 10.
[JAyetileke J.—Voet says even a donation by a minor to his guardiancan be ratified.]
Gunasekera Hamine v. Don Baron (supra) is still good law and is anauthority for the proposition that such a contract cannot be ratified.
See also Wessels : Law of Contract, Vol. I., pp. 8 and 9.( 1937 ed.)
Deed P 6 purports to be a transfer. It does not matter what thetransaction is called ; the whole of the surrounding circumstances mustbe looked into to find out the true nature of the transaction. SeeRajah v. Nadar ajah12 ; de Silva v. de Silva,13. Thus facts which showthat the transaction is not a sale may be proved.
Only the lease to Coonjee Moosa can be relied onto prove ratification,but a close examination shows that that deed does not ratify P 6 at all.Attestation by a witness of a signature does not mean anything more thanthat the signature is correct. See Banga Chandra Dhur Biawas v. JagatKishore A charjya Chowdhuri 14. The learned Judge is clearly wrong inholding that deed No. 8038 (P 6) has been ratified.
1 .9. A. L. ft. (1918) A D 70 at 7fS and 78.* (1937) 39 N. L. ft. 113.
3 L. R. (191?) Indian Appeals 236 at 242.» S. A. L. R. (1913) A. D. 390.
3 (1912) 15 N. L. R. 280 at 282.10 S. A. L. R. 1913 A. D.135at141.
(1913) 16 N. £. R. 368."ft. A. L. R. 1923 A. £>.530at534.
(1902) 5 N. L. R. 273.12 (1943) 44 N. h. R. 470 at 475.
(1916) 19 N. L. ft. 427.(1937) 39 N. L. ft. 169 at 171.
7 (1928) 29 N. 1,. ft. 449.« (1917) J. L. R. 44 Cal. 186 at 187.
JAYETLLEKJ5 J.—Kona Kumara v. Abdul Coder.
469
N.Nadarajah, K.C., in reply.—A deed must be construed from the docu-ment itself. See Perera v. Fernando 1 ; Adaicappa Chetty v. CaruppenChetty 2 ; Lunaiha XJmma v. Hameed 3.
October 10, 1946. Jambthjske J.—
The parties to this action are Muslims. The first defendant was marriedto the plaintiff on November 16,1933, and it is alleged that he was marriedto the second defendant on Febuary 7, 1939. The first defendant wasat the date of his marriage with the plaintiff entitled to the land whichforms the subjeot matter of this action and to several other lands. Inor about the year 1936 he got into financial difficulties and the plaintiff’sfather paid his debts and got him to transfer all his lands to the plaintiffby deed No. 5045 dated September 11, 1936, attested by G. C. Molligode,Notary Public (P 5). By deed No. 8038 dated January 19, 1939, attestedby G. C. Molligodde, Notary Public (P 6) the plaintiff retransferred allthe lands to the first defendant. P 6 is on the face of it an out and outtransfer in consideration of a sum of Rs. 20,000 paid by the first defendantto the plaintiff. The notary’s attestation shows that th6 considerationwas not paid in his presence but was acknowledged to have been receivedby the plaintiff. By deed No. 2795 dated February 17, 1939, attestedby M. S. Akbar, Notary Public (2 D 18) the first defendant gifted theland which forms the subject matter of this action to the second defendantin consideration of marriage and of love and affection. In this actionthe plaintiff sought to have P 6 declared null and void and to have thesecond defendant ejected from the land described in the plaint on theground that her signature was obtained to it by the first defendantby undue influence, intimidation and threats.
The learned District Judge held in favour of the plaintiff on the questionof minority and against her on the questions of undue influence, intimida-tion and threats. He also held that the plaintiff did not receive theconsideration mentioned in P 6. We see no reason to differ from anyof these conclusions. The learned District Judge, however, declared P 6to be null and void on the ground that it was a donation. At the argu-ment before us Mr. Nadarajah contended that the learned DistrictJudge was not justified in holding that P 6 was a donation in the absenceof an issue and, particularly, in the absence of any evidence on thepoint. He further contended that even if the finding can be supportedthe evidence shows that P 6 was ratified by tjie plaintiff after she attainedmajority. An examination of the plaint, which was amended on threeoccasions, shows that no suggestion was made at any time of an originalgift. Indeed the plaintiff did n:>t in her evidence pretend that P 6 wasa gift by her to her husband. It may be that the question was notraised in view of the provisions of section 92 of the Evidence Ordinance(Chapter 11).
However that may be, the plaintiff must stand or fall on the issuesraised at the trial. The plaintiff’s remedy is an action to recover theconsideration from the first defendant and not to claim a cancellationof the conveyance. (Vide Mohamadv, v. Hussim4). We do not think
{1914) 17 N. L. R. 486.(1921) 22 N. L. R. 417.
3 (1915) I C. W. R. 30.
* (1913) 16 K. L. R. 368.
460
KEUNEMAN B.V.J.—Dharmarahia v. Indanara Jsthavira.
that the trial Judge was justified in holding that P 6 was a donationmerely because the plaintiff did not receive the consideration mentionedin it. Counsel for the respondent conceded that if we were of opinionthat the finding of the trial Judge that P 6 is a donation is not correctthe judgment could not be supported. It is therefore unnecessaryfor us to consider the question of ratification. For these reasons wewould set aside the judgment appealed from and dismiss the plaintiff’saction with costs here and in the court below.
Kectneman S.P.J.—I agree.
Appeal allowed.