046-NLR-NLR-V-51-PUBLIC-TRUSTEE-Appellant-and-UDURUWANA-Respondent.pdf

194
"DIAS J.—Public Trtutae v. Vduruu-ana
Even if it Is a donatio mortis causa no notarial execution is necessary.Ordinance No. 7 of 1840 does not apply to donations.
Being a donatio inter vivos, and there being no implementation of thepromise, only the promise to pay money exists. The Registration ofDocuments Ordinance does not apply to a promise to pay money.Choses in action arc specially excluded. The Registration of DocumentsOrdinance deals only with title to movable property. The Ordinanceis not intended to cover instances like this—Charlesworth v. Mitts1 ;Encyclopaedia of Laws of England. 2nd Ed., Vol. II., p. 242.
Mohamed Bhoy v. Maria Dias2. Assignment of money deposited inCourt did not require to be registered. Appuhamy v. Appuhamy3.GunatiUke v. Ramasamypillai*.
Cur. adv. vult.
November 22, 1949. Dias J.—
The late Mr. N. D. A. Silva Wijeysinghe, the “ Padikara Mudaliyar ”,on his death-hed in the presence of witnesses expressed the intentionto give the plaintiff, his old and faithful servant, who was then presentby the bedside, a donation of Rs. 10,000. Mr. S. J. C. Kadirgamar,Proctor, who had been summoned by the dying man from Colombo toKandy, testified to that fact. The learned District Judge accepted theevidence of Mr. Kadirgamar. Mr. Kadirgamar is a professional manwho has no motive for stating what is untrue. Furthermore, his evidencedoes not stand alone. The evidence of Mr. Kadirgamar and that of theother witnesses, including two modicaJ men, may be summarised as follows.The dying man stated not once, but several times, that he wanted towrite cheques for Rs. 10,000 in favour of the plaintiff, Rs. 10,000 in favourof the Bishop of Kandy, Rs. 1,000 in favour of his motor car driver,and he also expressed his desire to make better provision for his wife,who was not present. The plaintiff, whon he heard his master expressthis intention to donate Rs. 10,000 to him, placed the palms of his handstogether in oriental fashion and bowed low to his master sayingsomething which Mr. Kadirgamar did not hear. The plaintiff saysthat he bowed to his master saying that he thankfully accepted thedonation. That is precisely how a Sinhalese man of lowly status wouldsignify his acceptance and thanks to his master for largess promised.The cheque books, however, were not available in the nursing home.The plaintiff was, therefore, sent to the Queen’s Hotel where the PadikaraMudaliyar had been residing. The plaintiff returned with the chequebooks, but the doctors forbade the dying roan to write or sign anydocuments, as they believed any exertion on the part of the patientmight prove Instantly fatal. The Mudaliyar then instructed Mr.Kadirgamar to execute a codicil to his will giving effect to his intentions.Mr. Kadirgamar, however, had no licence to practise as a notary at Kan-dy. Proctor Mr. Guruswaray was fetched, and the two notaries busiedthemselves in drafting the codicil. The plaintiff swore that the dyingman repeated his intention to donate Rs. 10,000 to him a second time,and that on each occasion he signified his acceptance and thanked hismaster. Before the codicil could be signed, the mudaliyar expired.
‘ (1892) A. C. 231 ot 233.* (1932) 33 N. L. R. 3 ct 330.
* (1908) 11 N. L. It. 323.* (1919) 21 X. L. tt. 204.
DIAS J.—Public Trustee v. Uduruicana
195
Tlic plaintiff sued the Public Trustee, the executor of the deceasedman, to recover this sum of Rs. 10,000. The District Judge gave himjudgment, and the Public Trustee appeals.
The law applicable is the Roman Dutch Law. Under that system ofjurisprudence a “ donation ” is an agreement whereby one person calledthe “ donor ", without being under any legal obligation so to do andwithout receiving or stipulating for anything in return gives or promisesto give something to another, who is called the “ donee ” l. A donationis perfected in one of two ways : (a) either by the donor expressing hisintention to make the donation, followed by the actual deliver}' (tradiiio)of the thing donated to the donee: or (6) by the donor expressing hisintention to make the donation coupled with the acceptance of thedonation by the donee. Donations are perfected by tradition, or evenwithout tradition, when the donor's intention to give and the donee’sintention to receive have been clearly expressed. In that case, the doneecan compel tradition—Parasatly Ammah v. Setupillai2, TiUekeratne v.Tenmkoon '1, D. C. Matara 20,8624, Wickremasinghe v. Wijetunge6,Fernand# v. Weerakoon *. A donation is a bilateral agreement to whichthere must- be two consenting parties—Welappu v. Mudalihamy7.Under the Homan Dutch Law no particular form is required for theacceptance of a donation inter vivos. In every case, it is a question offact whether or not there are sufficient indications of the acceptanceby the donee—Hendrick v. Suditaratne.8, de Silva v. Ondaaljee9.Acceptance of a donation can be established by circumstantial evidence—Lokuhamy v. John10, Binduwa v. Unity11. In some cases acceptancemay even be presumed from the facts—Wickremesinghe y. Wijetunge(supra), Fernando v. Alwis12, Fernando y. Fernandon. A donationwhich has not been accepted is void. The right to challenge a donationas being void for non-acceptance is not restricted to the donor—Kana-pathipillai v. Kasinather l4.
Therefore, if A with the intention of making a donation of Rs. 100 toB says “I will donate to you the sura of Rs. 100” and B signifieshis acceptance of the gift, provided B can persuade the Court that the facteare as he states, he will be entitled to obtain a decree against A, or hislegal representative, for that sum of Rs. 100 if the donation is not paid.In the present case the evidence which the learned District Judgeaccepted shows conclusively that the deceased man unequivocallyintended to donate a sum of Rs. 10,000 to the plaintiff and unequivocallyintimated that fact to the plaintiff who accepted the donation both bywords and signs. The plaintiff would, therefore, be entitled to sue theexecutor of the deceased donor to recover that money, unless some otherlegal fetter exists which prevents him from so doing.
1 Voat XXXIX 5. 1., 3 Moasdorp (4thed.) p. lOt, 2 Nathan (2nd cd.) p. 1155.
(1872) 3 jV. L. R. 271.
Hum. (43-45) 155.
Vand. (1871) 268.
■ (1913) 16 N. L. R. 413, 3 C. A. C. 52.
(1303) 6 N. L. R. 212.
' (1903) 6 N. L. R. 233.
* (1912) 3 C. A. C. 80.
(1890) 1 S. C. 11. 19.
Ram. (72, 75, 76) 215.
» (1910) 13 N. h. 11. 259.
(793-5) 37 N. L. R. 201.I® (1944) 46 N. L. R. 44.14 (1937) 39 N. L. R. 545.
196
DIAS J.—-Public Trustee v. Vdurwvana
It was argned that if a donation had been created, it was a donatiomortis causa, and was therefore invalid for want of proper execution.The question, however, is whether this is a donatio mortis causa ?
The requisites of a donatio mortis causa are—(1) It must be revocable,otherwise it would be a donatio inter vivos ; (2) It must be conditionalon the death of the donor; (3) Some mention must be made in thedonation itself of the death of the donor ; and (4) It must be executedbefore five witnesses, or a notary and two witnesses. Donations mortiscausa may be created in one or other of three ways ; (a) By the donorgiving something in mere general contemplation of death, but withoutany fear of an early death or any imminent danger upon the understandingthat the property donated is not to become the property of the doneountil the donor’s death; (b) When the gift is made in fear of deathfrom a present illness, or from a particular imminent danger, with theunderstanding that it is not to become the property of the donee untilthe death of the donor from the particular illness or danger; or (c)where the donation is made in such special fear of death, but on the.understanding that the dominium is to pass to the donee at once, but thatthe property is to be returned if the donor recovers or escapes from theparticular illness or danger. The lirst two of these may be made eitherwith or without delivery, but in the third there must be delivery, asownership cannot pass without it. In case of doubt, a donation must bepresumed to be one inter vivos, rather than mortis causa even thoughat the time of the gift the donor may have been in actual fear of death1.
In the case we are considering, not only was there no mention at allmade by the donor of his death, or that the donation to the plaintiff wasto be conditional on his death, but the facte and circumstances also indicatethat the donor did not expect to die and he desired to create an un-conditional donation. I am clearly of opinion that this was a donatiointer vivos, and did not require any special mode of execution.
The caseof Parampalam v. Arunachalam8 was cited in this connection.I can find nothing in that case which is inconsistent with the view Ihave formed. It is to be observed that while Garvin J. based his judgmenton the ground that the document sued on was a promissory note, andtherefore governed by the English law regarding valuable consideration,Dalton J. based his decision on the ground that the document being adonatio mortis causa was inoperative for want of due execution. Dalton J.also held that although the intention of the donor was to create a donatiomortis causa, that intention was frustrated by the failare to create it in thepresence of at least five witnesses, or the formality of notarial execution—see also Fernando v. Coder3. If the transaction we are considering inthis case is a donatio mortis causa, which 1 think it was not, it would beinoperative for want of due execution.
In the case of a donatio inetr vivos, however, no special mode of executionis necessary. The mere intention to donate when clearly expressed bythe donor in writing or verbally when coupled with a clear acceptance
1 I Maasdorp (6th ed.) p. 252 ©t seq.
2 Nathan (2nd ed.) p. 1167, Voet XXXIX 6. 3.
» (1927) 29 A*. L. R. 269.
a (1931) 9 T. /,. It. at p. 9.
DIAS J.—Public Trustee v. Uduruwana
197
by the donee by nods, words or signs, is sufficient to create a valid donatioinier vivos which the Courts will enforce, provided the plaintiff canpersuade the Court to believe his case.
In passing I may be permitted to point out that under the RomanDutch Law, a promise made by an employer to an employee, e.g., to paythe latter a pension or a gratuity in consideration of his past faithfulservices, is called a donatio remuneratoria, and was enforceable in theCourts. Since the decision of the Privy Council in Jayawicfcreme v.Amarasuriya1 it is settled law that a lawful promise deliberately made todischarge a moral duty, or to do an act of generosity or benevolence,can be enforced under the Roman Dutch Law—the justa causa debendito sustain a promise being something far wider than what the EnglishLaw treats as good “ consideration ” for a promise. In Fichardt, Ltd. v.Faustman s a promise made by an employer to an employee to pay hima pension in view of the servant’s past faithful services was held to beenforceable, though not registered.
It was next contended that this donation was a “ bill of sale ” withinthe meaning of sections 17 and 1$ of the Registration of DocumentsOrdinance, 1927 (Chapter 101) (as amended by Ordinance No. 13 of1947, sections 3 and 4), and that, therefore, there having been no handingover of the money which was donated to the donee, the donation was notvalid or effectual, as it was not created by a writing and registered asrequired by section 18 (6).
This raises the question as to what precisely is the legal relationshipor obligation which is created by a donatio inter vivos when the propertydonated is not handed over to the donee ? Van Leeuwen’s CensuraForensis9 has the following passage: “ A gift is perfected as soon as thedonor has expressed his intention, whether in writing or verbally—even by bare agreement; and, for this reason a gift at the present daygives rise to an action [i.e., a cause of action) with this limitation, however—that it is not considered perfected before acceptance on the part of thedonee ha9 followed …. And this is understood to take place notonly by words, but also by nods, and other signs between persons whoare present and consenting ”. It is, therefore, clear that, whereas inthe case of a donatio inter vivos where the gift is perfected by the intentionto give coupled with the actual handing over of the thing donated to thedonee, the latter obtains a chose in possession, on the other hand, inthe ease of a donatio inter vivos where the gift is perfected by the intentionto give coupled with acceptance by the donee, and there is no transferof property, the latter obtains a chose in action, namely a cause of action,or the right to sue either the donor or his legal representative for thepayment of the money or handing over the thing donated. In this casewe are dealing with a donation which falls within the second category.The plaintiff’s right under this donation was a chose in action and nothingmore.
Section 17 (1) of Chapter 101 (as amended by Ordinance No. 13 of1947, section 3) enacts that “ In this Ordinance, unless the context
1 (1918) 20 tf. L. R. 289.
a S. A. L. R. (1910) Appellate Division 168.
9 (1896 edition) by Ember dc Macjadyen p. 90.
DIAS J.—Public Trustee v. Udurvwatui
otherwise requires, the expression “ bill of sale ” shall include (inter alia)a transfer, declaration of trust without transfer “ and any other assuranceof movable property whether absolute, or by way of mortgage orotherwise The word “ assurance ” was defined in Gunelilleke v.Ramasamypillai1 to include “ a conveyance Assuming for purposesof argument that a donation without a transfer of property can be calleda conveyance, the appellant is met by the provisions of section 17 (2)which provides that “ Nothing in this Chapter shall apply ….to c,hoses in action ”. In my opinion this is fatal to the apjxdlant anddemolishes his argument on this point.
The object underlying sections 17 and 18 of the Registration ofDocuments Ordinance is to prevent false credit being given to peoplewho are allowed to remain in possession of movable property whichapparently is theirs, but the ownership of or title to which they haveparted with. Therefore, the law provides that, in certain eases wherethere is no transfer of the movables, the transaction must be evidencedby a writing which must be registered. If this is not done the transactionis not valid or effectual—see s. 18. The law strikes at the documentand not at the transaction itself—Appuhamy v. Appubamy In thatcase the deed of gift donated the stock-in-trade, goodwill, l>ook-deblsand other debts of a business without any delivery of possession to thedonee. It was held that while the transaction was not valid and effectualin the absence of registration in so far as the stock-in-trade was concerned,it was a valid donation so far as the book-debts and other debts (chosestn action) were concerned. There are several cases in the law’ reportswhich illustrate this principle. In The Chartered Bank v. Rodrigo 3 it washeld that a debt is a chose in action, and, therefore, exempted bysection 17 (2). In Julie r. John4 it w’as held that the right to recoverunder a judgment is a chose in action, and its assignment need not beregistered. The facts of the case of Mohamed Bhoy v. Maria Dias*are instructive. The plaintiffs and tho defendants owned undividedshares in a land which was the subject of a partition action. Thedefondants by a notarial document duly registered in the Land Registryagreed to convey to the plaintiffs the divided portions which would beallotted to them in the final decree, or, if the Court ordered the land tobe sold, they assigned to the plaintiff all sums of money which they maybecome entitled to in lieu of their shares in the land. The Court orderedthe land to be sold. When the plaintiffs applied to draw out the moneyfrom Court, the defendants objected. It was held that the deed did notdeal with movable property, and was, therefore, not a “ bill of sale ”needing registration under the Registration of Documents Ordinance.
If the appellant’s argument is sound, then every donation in whichthe money donated is not handed over to the donee forthwith would beliable to be impeached for want of registration. I am clearly of opinionthat sections 17 and 18 have no application to the facts of this case.
1 (1919) 21 K. L. R. 203.
(19.32) 35 -V. L. R. at p. 330, and so© Charltsworth t Miles (1892) App. Cosat p. 235 (II of L).
» (1940) 41 A'. R. at p. 451.
(192.5) 6 C. L. R«c. 98.
(1908) 11 -V. L. R. 325.
WIJEYEWARDENE C-J-—Associated Cement Companies, Ltd.,
Bombay v. Commissioner of Income Tax
199
What Chapter 101 aims at doing is to prevent the creation of real rightsin movable property when there is no dolivery of possession, except bya writing and registration.
The appeal is dismissed with costs.
Windham J.—I agree.
Appeal dismissed.