061-NLR-NLR-V-23-PONNAMPERUME-v.-GOONESEKERA-et-al.pdf
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Present: De Sampayo J. and Garvin A.J.PONNAMPERUME v. GOONESEKERA et nl78.—D. C. Guile, 16,996 F.
Donation—Power of revocation reserved—Donor may revoke withoutsanction of Court—Is there a time limit ?—Remuneratory donation—Donation propter nuptias.
A donor may expressly reserve a power of revocation andexercise it himself without obtaining a decree of Court.
A donation propter nuptias is not revocable for ingratitude duringthe subsistence of the marriage. But it may be revoked by a'donor who has reserved the power of revocation.
A donatio propter nuptias is not a mere gift made on the occasionof a marriage, but a contract made as an inducement to marry.Where a donor reserves to himself the power to cancel the deed“ at any time hereafter,” there is no time limit within which the*power must be exercised.
f i MLE facts appear from the following judgment of the District-L Judge (L. W. C. Schrader, Esq.):—
This is an action for the partition of a land which belonged to oneKurupan&we Gamage Juwanis. Juwanis sold the same by deed No. 258of March 7, 1919, to the plaintiff and first defendant for valuableconsideration, and the deed P 2 is registered.
Plaintiff and first defendant, therefore, divided the land in equalmoieties, assigning planting interests to the second, third, and fourthdefendants.
It appears, however, that Juwanis by deed No. 3,539 of March 5.1908 (copy of 5 D 2), gifted half of the land and buildings to his niece.Karonchihamy, with a fldei commissum in favour of her children Sipila,Grace, and Noel, and any others unborn, and, subsequently, cancelledor purported to cancel it by deed No. 8,272 of November 30,1914 (P 17).The original donation deed is annexed, and, admittedly, is not registered.
The added party, Nichulas, the husband of the fiduciary doneeand father of the child Noel, intervenes, and claims the two boutiquerooms 2 and 3 put up by him, the planter’s interest of a plantation of58 trees put in by him, and prays that his wife be declared entitled toa half part of the land, and the plaintiffs action be confined to the otherpart. His wife has accepted the revocation and does not join.
The issue is whether the gift is revocable, and whether the plaintiff’sdeed gains priority by registration.
On the first point it has already been held between the partiesthat this deed of gift was not a donatio mortis causa, though it is soexpressed in the document And it does not comply with the requisitesof a donatio mortis causa (Pereira's Institutes 602). The reservationfor cancellation is incidental to the class of deeds mortis causa, andany kind of donation is irrevocable, subject to the exceptions enumerated
1921.
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1921.
Ponntm*pmme v.Oooneaekera
at page 610. None of these apply. Moreover, the deed is chargedwith a reversion to the donee’s children, and once accepted by thefidei commissaries it becomes irrevocable. These were all minors atthe time. Acceptance by the fiduciary donee, their mother, is accept-ance on their behalf. “ In the case of such a donation, acceptance bythe fiduciary donee is a sufficient acceptance on behalf of the unborndescendants.” (27 N. L. R. 279.)
“ In such cases.as the present where the reversioners are the legiti-mate descendants of the donees, acceptance by the fiduciary donee is asufficient acceptance on behalf of the descendants, and preclude thedonor from revoking it.” (18 N. L. R. 222.)
The plaintiffs contention, however, is that all these considerationsapply to cases where no power of revocation is reserved. Here there isthe express power of revocation. This is a lawful power (11N. L. R. 151),and is valid. Mr. Jayawardene’s contention was that the clause ismerely incidental to a donatio mortis causa, and this one is not mortiscausa, though recited as such. Therefore, if it is not mortis causa,it is a deed inter vivos, with an express power of revocation reserved.
I think, therefore, that the deed was revocable.
Next, to take the question of registration. ' The registration ofthe second title entitles it to prevail over the unregistered donation,section 17 of 14 of 91, unless fraud in obtaining such prior registrationcan be established.
The defendant urges that there is fraud and collusion in thismatter. First', Don Juwanis sued the intervenieut in A. C. R. 7,641to enforce the power of revocation of the two boutiques built by thelatter in April, 1913, and the case was dismissed, May, 1915, the Courtholding that the defendant was by right of his wife’s half interestentitled to remain.
Circumstances have now changed, and the revocation has beenexecuted on November 30,1914, and acquiesced in by the donee withoutthe sanction of hear husband. There seems to me, however, to be nodoubt about the right of revocation, and therefore there seems to be nofraud in employing it. The conveyances to the parties in the casewere eminently onerorn titida, and remove presumption of fraud.
In regard to improvements, the parties, I gather, do not reallyobject to paying compensation, and in any case they must. Thedefendant is not a maid fide improver. I enter judgment therefore forpartition of the lands, apportioning half to plaintiff and half to firstdefendant. Improvements as in the surveyor’s return, only that thehouse 1 to plaintiff and first defendant, 2 and 3 to fifth defendant,4 to second defendant to be removed. The compensation for thesecond to fourth defendant’s plantation to be in terms of the plantingvoucher 2 D 1.
Added party to pay costs of contention, inclusive of first defendant’scosts of partition pro raid.
The fifth defendant appealed.
Bawa, K.C. (with him J. 8. Jayawardene). for fifth defendant,appellant.
St. 7. Jayawardene, K.C. (with him Weera.jooria), for plaintiff,respondent.
W. Jayawardenef for first defendant, respondeat.
1081.
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[December 19, 1921. Db Sampayo J.—
This is an action lor the partition of a land, which formerlybelonged to one Jowanis de Silva, the plaintiff claiming half shareof the land, and assigning the other half share to the first defendant.The second, third, and fourth defendants were joined as parties,as they were entitled to certain planting interests and to certainbuildings. The contest in the case is betweenthe plaintiff and firstdefendant on one side and the fifth defendant on the other. Bothparties, however, claim under the same Juwanis de Silva. It appearsthat the fifth defendant in 1904 married Karonchihamy, a niece ofJuwanis de Silva, and that by an informal writing Juwanis de Silvaagreed to gift to Karonchihamy a half of the~ northern half part ofthe land, and to execute a deed in her favour as soon as possible.Four years afterwards, namely, on March 5,1908, Juwanis de Silvaexecuted a deed of gift in favour of Karonchihamy for half sharesubject to certain conditions, and Karonchihamy, on the face of thedeed, accepted the gift, subject to those conditions. The terms ofthis deed are important, and are therefore here quoted in full:—
“ I (Juwanis de Silva), in consideration of the natural love andaffection I have and bear unto my niece (Karonchihamy),and for divers other good causes and considerations me here-unto moving do hereby give and grant unto her, the said(Karonchihamy), her heirs, executors, administrators, andassigns as a donatio mortis causa all that the premises in theschedule hereunder written, &c. To have and to hold thesaid premises of the value of Rs. 2,000 unto her, the said(Karonchihamy), subject to the condition that she, the said(Karonchihamy), shall not sell, mortgage, gift, or otherwisealienate or encumber the said premises in any manner, butthat the same after her death devolve equally on her childrennow living; namely, P. K. Sepila, P. K. Theodora, Grace,and W. Noel, and on any other children that may be bornto her hereafter.'
“ Provided further, that I, the said (Juwanis de Silva), do herebyreserve full power to cancel these presents at any timehereinafter* And I, the said (Karonchihamy), do herebygratefully accept the gift hereby made in manner aforesaidsubject to the conditionsaforesaid.”
The first two of the children, who are constituted^dee commissaries,are children of Karonchihamy by her first husband, and the thirdchild is her child by the fifth defendant. By deed of revocationdated November 30,1914, Juwanis de Silva, mpursuanceof the powerreserved to himself and with the consent of Karonchihamy, revokedthe deed of gift, and thereafter by deed dated March 7, 1919, hesold the land to the plaintiff and first defendant. The fifthdefendant, husband of Karonchihamy, contends that the revocation
Ponnam*perume v.Gooneeekera
1921.
Db SamfavoJ.
JPonnam-ptrum* v.Qodheaekera
( 238 )
is invalid, and that no title vested in the plaintiff and the first'defendant so far as the share gifted to Karonchihamy is concerned.The situation is somewhat anomalous, because Karonchihamyherself, not only consented to the revocation of the deed of gift, butraises no dispute to the claim of the plaintiff and the first defendant.and is not a party to this action. The fifth defendant’s prayer,however, is that Karonchihamy may be declared entitled to a shareby virtue of the deed and by prescriptive possession. It appearsthat the husband and wife are on bad terms, and are separated fromeach other. Mr. Bawa, for the fifth defendant, contends that asgifts by their nature are irrevocable, the power of revocation whichJnanisde Silva purported to reserve to himself is inoperative. – Thereis, no doubt, that under "the Roman-Dutch law gifts inter vivosare generally irrevocable, except for such causes as ingratitude, andeven then the revocation must be effected by decree of Court.It is therefore unnecessary to refer to the well-known authoritieswhich Mr. Bawa cited on that point. What Juwanis de Silva and thenotary meant by calling the gift a donatio mortis causais not apparent.It is obvious, however, that the gift is not a donatio mortis causa,but a gift inter vivos. The question is whether a donor may notexpressly reserve a power of revocation and exercise it himself.1 do not see any principle disentitling a donor to do so. Since agift is purely voluntary, and as it is in the power of the donor togive the property absolutely or a limited interest therein, I thinkthat it iB not contraryto law if he makes a transitory gift, such as agift to be terminated by his own act. The donee Karonchihamyaccepted the gift subject to the specified condition, and the fifthdefendant himself sets up the deed as his wife’s source of title. InGovernment Agent, Western Province, v. Palaniappa Chetty,1 thisCourt held that, notwithstanding the irrevocable character of agift under the Roman-Dutch law, an express power reserved to thedonor is operative, and may be validly exercised by him. Mr. Bawaaccepts this decision as he is bound to do, but he argues that it isnot applicable, because the gift in thi^ case is not a pure donation,but is of the description called remuneratory donation or adonation propter nuptias. which it is contended are whollyirrevocable. But the Court in the above case did not base itsdecision on any distinction with regard to the kind of gift, andI think the ratio decidendi is applicable to the present case.
Moreover, I doubt whether Juwanis de Silva made or intended tomake any remuneratory gift. Properly speaking, remuneratorygifts may be said to be given for consideration, and not as amatter of pure benevolence, or, as Voel 39, 5, 25 put it, such agift is an exchange rather than a donation, and is irrevocable.Juwanis de Silva’s gift was not one of that kind, but may at thehighest be said to be a gift propter nuptias, with regard to which
1 i 1909) u n. L. R. 161.
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Voet lays down in the above lex 25 and in lex 34 that it is notrevocable for ingratitude during the subsistence of the marriage.There is nothing to show, however, that even in such a'case anexpress power of revocation may not be exercised. Voet 39, 5, 34,to which Mr. Bawa referred us, indicates the meaning of donatiopropter nuptias. It is not a mere gift made on the occasion of amarriage, but a contract made as an inducement to marry, andwhen the person who gets the donation fulfils his or her part of thecontract by marriage, the donation, like any other contract, is notcapable of being withdrawn at the instance of one party alone.Is the donation in this case a donation propter nuptiosin this sense ?It is to be noted that the promise and the actual gift was not to thefifth defendant, but to Karonchihamy, so that one element of thiskind of donation is absent. Moreover, neither the informal writingnor the deed shows that the gift was given as an inducement forthe marriage. They do hot even call it a dowry. Lastly, it wasrevoked with the concurrence of the donee herself, and not at theinstance of Juwanis de Silva alone. Both in form and in substanceit is an ordinary gift, though the promise may have been given onthe occasion of the marriage between the fifth defendant andKaronchihamy. I should say that the nature of the gift, if it is tobe claimed as being of a special kind, should be disclosed in theinstrument itself. But even i/ extrinsic oral evidence is admissible,I think the evidence falls far short of what is necessary. The onlyevidence on the point is that of the fifth defendant, and all that hesays is: “ I am married to a niece of plaintiff’s vendor Juwanis in1904. Juwanis agreed to give as dowry half of Bamboragewatta.”In my opinion the gift cannot be considered as a donation propternuptiaa in the true sense of the expression. Even if it were sucha donation, there is no authority for holding that an express powerof revocation reserved in the very deed of donation cannot be validlyexercised. The “dowry,” asgiven and accepted, passed a precarioustitle, and neither Karonchihamy nor the fifth defendant can claimmore.
There are one or two minor points which remain to be considered,it appears that the fifth defendant built one or two rooms on theland at hisexpense, and in 1913 Juwanis de Silva brought the actionNo. 7,641 of the Court of Bequests of Galle to compel the fifthdefendant to accept compensation for the buildings and to giveup possession of the buildings. The action was dismissed, and thedinmiflflft.1 is pleaded as tee judicata, even as regards the title to theland. It appears that the deed of gift had not been revoked at thetime of that action, and that the revocation was made pending theaction. Nevertheless, it is contended for the fifth defendant thatJuwanisdeSilvamighthave had an issue stated at the trial, and thatthat not having been done, the plaintiff, as purchaser from Juwanisde Silva, is under section 207 of the Civil Procedure Code concluded
1921.
Da SamfavoJ.
Ponttam*pervme v.Oconenekera
1921.
Ob Sahpayo
J.
Ponnam-perume v.Goonestkera
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by the dismissal of the action. In my opinion the Court could onlyhave decided the rights of the parties as at the date of the action,and I do not think that an issue as to the effect of the revocationof the gift would or could have been entertained by the- Court.Moreover, if a claim, to the land' could have been set up in thataction, the Court of Bequests would have had no jurisdiction,inasmuch as admittedly the value of the land was much above themonetary limit of the jurisdiction of the Court of Bequests, and,consequently, any decree in that action could not operate as resjudicata.
It was also contended that them was too great a lapse of timebetween the date of the deed of gift and its revocation. But thepower reserved was to cancel the deed “ at any time hereafter,”and there was therefore no time limit within which the powermust be exercised.
It was further urged that the fifth defendant, or rather Karonchi-hamy through him, had acquired a title by prescription, which couldnot be affected by the revocation. Apart from the question whetherby possession the power to revoke can be defeated, which I doubt,the evidence, which is conflicting, does not amount to proof ofprescriptive possession, nor has the District Judge found that thefifth defendant has had possession of the share in question. It isclear, however, that he had possession of the two rooms which hebuilt, and the decree allows them to him.
There is also the question whether the revocation has the effectof depriving Karonchihamy’s children of the fidei commissumcreated in their favour by the deed of gift. That question, however,need not be considered now, as Karonchihamy is still alive, and thechildren may, when the event happens, have their remedy, if any.
In my opinion this appeal must be dismissed, with costs.
Garvin A.J.—I agree.
Appeal dismissed.