047-NLR-NLR-V-54-RATNAYAKE-Appellant-and-MARY-NONA-et-al-Respondents.pdf
Ratnayake v. Mary Nona
197
1952Present: Gratiaen J. and Gunasekara J.RATNAYAKE, Appellant, and MARY NONA et al., RespondentsS. G. 87—D. G. Negombo, 14,631
Donation—Subsequent birth of child to donor—Action for revocation of gift—Prescrip-tive period—Prescription Ordinance (Cap. 55), ss. 6, 10.
A donor’s right to institute an action for the revocation of a deed of gift-on the ground of the subsequent birth or legitimization of a child becomesprescribed three years after the time when the cause of action accrued, A claimof this nature falls within the ambit of section 10, and not section 6, of thePrescription Ordinance.
2*J. If. B 22248 (12/52)
19S
GRATIAEN J.—Jtalnayake v. Mary Nona
Ap:
PEAL from a judgment of the District Court, Negombo.
" H. V. Perera, Q.C., -with H. W. Jayewardene, for the defendantappellant.
N. E. Weerasooria, Q.C., with Ivor Misso and A. Nagendra, for thesubstituted plaintiffs respondents.
Cur. adv. wit.
June 13, 1952. Gratiaen J.—
Under a notarial conveyance Pi dated 15th June, 1940, the originalplaintiff, who was an elderly widower, had donated the property towhich this action relates to his nephew the defendant. The donationwas duly accepted, and the title to the property accordingly passedto the defendant.
The plaintiff was keeping a mistress (the 2nd substituted plaintiff)at the time of the transaction. On 22nd December, 1942, an illegitimatechild (the 3rd substituted plaintiff) was bom to this union. Veryshortly thereafter he decided to regularise his association with the ladyconcerned, and he married her on 21st January, 1943. In consequence,the child became legitimated..
The plaintiff instituted the present action against the defendant on26th November, 1947—i.e., more than 4 years after the date of hismarriage—to have the deed of gift PI “ annulled and cancelled ” by theCourt. He claimed that the subsequent birth of. the child entitled himto relief from the consequences of his former liberality. As an alter-native ground for revocation he pleaded that the defendant had beenguilty of “ gross ingratitude ”, but this allegation was not establishedat the trial and no longer arises for consideration.
Although the deed of gift expressly purported to be “ absolute andirrevocable ”, it is common ground that under the Roman Dutch Lawa donor nevertheless retains-—except in the case of remuneratory gifts,dowries, or donations propter nuptia-s—“ the discretion and the right torevoke a gift on account of the subsequent birth of children ” (Voet39-5-26) or “ when natural children have subsequently been legiti-mated ”.(Voet 39-5-27).
The learned Judge entered judgment as prayed for in the plaint, andrejected the special defences whereby it was pleaded (a) that the causeof action to have a deed revoked on the ground of the subsequent birthof a child did not survive to the donor’s legal representatives or heirsafter his death, and (6) that in any event the action was prescribed.
In the view which I have taken it is unnecessary to answer the interest-ing question of law raised by the first plea, because in my opinion thelearned Judge was not justified in holding that a claim of this naturefalls within the ambit of Section 6 of the Prescription Ordinance (Cap.55). It seems to me that an action to have a gift revoked on the groundof the subsequent birth of a child is based on a cause of action “ notexpressly provided for ” in the Ordinance, and therefore becomesprescribed within 3 years from the time when the cause of action hasaccrued (Section 10).
GRATIAEN J.—Ralnayaka c. Mary Nona
109
The relevant words of Section 6 of the Prescription Ordinance areas follows :—
No action shall be maintainable upon any written promise,contract, bargain, or agreement . . . unless such action shall be broughtwithin six years from the date of the breach of such . . . loritten promise,,contract or bargain.”
Before deciding whether these words apply to the present proceedings,it is necessary to examine the precise nature of the common law remedywhich is available to a donor in a revocatory action of this kind.
“ The law, declaring what the paternal duty in regard to progenystill to be begotten is, takes for granted, contrary to the principles ofstrict law (which are in other respects applied to donations) this tacitlypresumed condition, namely—‘ if no children shall subsequently havebeen bom to the donor 5 . . .”(Voet 39-5-30). The presumption is
not rebutted “ unless the donor has expressly renounced his right torevoke for that reason ” (Voet 39—5—31)..
Voet explains that “ it must not be imagined that a donation is in-validated on account of the subsequent birth of children by the mereoperation of law, and that the donor is again forthwith made the ownerof the donated property; but rather that this cancellation must besued for by him, and the donated property must be reclaimed by himby a personal action (ccmdictio) (39—3—35). The personal actionis called into existence on the subsequent birth of the child, which isdescribed as “ a purely accidental happening giving occasion for thecancellation In other words, the cause of action arises as soon asthe child is bom, and the donor may “ repent of his liberality ” in orderthat he may fulfil “ his obligations of paternal duty(Voet 39-5-31).
When the equitable jurisdiction of the Court to grant restitutio in integrumis invoked “ by means of the querula ” (Voet 39—5—35), it is left to thediscretion of the Judge to determine whether the gift should be cancelledhaving regard to all the circumstances which were relevant “ at thetime when the gift was made ”.(Voet 39-5—32). In other words, the
donor must prove that “ the conditions are suitable for the revocationof the gift ” (Voet 39—5—35). It is the Court’s decree and not the merewish of the donor that operates to invalidate the gift.
Mr. Weerasuriya has argued that Section 6 of the Prescription Ordi-nance applies because the relief claimed is for the enforcement of a“ tacit condition of the written agreement I do not doubt that anaction for the enforcement of an implied term or condition of a writtenagreement may in certain circumstances be regarded as an action toenforce the written agreement itself. Dawbarn v. Ryall 1. But thisdoes not conclude the question. Even if that be the true theoreticalexplanation of the basis of a revocatory action with which we are nowconcerned, the language of Section 6, as I read it, seems appropriateonly to proceedings for the enforcement of a right which flows directlyfrom the breach of an express or implied corresponding obligationimposed by the contract on the other party to “ the written promise,contract, bargain or agreement.” The Section is inapplicable where,
{1914) 17 N. L. R. 372.
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GRATIAEN J.—Ratnayake v. Mary Nona
as has- happened in this case, the cause of action proceeds not fromsuch a breach but from some fortuitous supervening circumstancewhich the law, on equitable considerations, regards as having destroyedthe original foundation of the donation so as to call for a judicialdetermination of its future operation.
The “ tacit condition ” suggested by Voet as the theoretical expla-nation of a revocatory action can, in a sense, be equated to a contractualresolutive condition .which, if subsequently fulfilled, invalidates thecontract which was valid at its inception (Voet 18—5—1). As Wessellsexplained in The Law of Contract in South Africa 1, “ a contract subjectto a resolutive or resolutory condition creates a legal bond betweenthe parties, but in such a way that if the condition is fulfilled the legalbond is broken, and the parties are restored as much as possible to theirformer condition. By the fulfilment of the resolutive condition, thecontract ceases to exist.”
But is there any need in the present context to discover some logicalexplanation for the remedy which the Roman Butch Law recognises inrevocatory actions ? As in the well-known “ frustration ” cases incommercial transactions, some may explain the remedy by speakingof the disappearance of the assumed foundation of the basis of the-contract, others by reading an implied term into the written instrument.Constantine Steamship Line v. Imperial Smelting Co.2. Lord Sumnerwould perhaps describe it as “a device by which the rules as to absolutecontracts are reconciled with a special exception which justice demands”.Hirji Mulji v. Cheong Yue Steamship Co.z. Suffice it to say in thewords of Lord Simon that, “ whichever way it is put, the legalconsequence is the same.”
Section 6 of the Prescription Ordinance does not apply for the simplereason that the cause of action involves no “ breach ” of any obligationby the donee, for it would be facetious indeed to impute any “ blameto him for the happy event which had taken place in the donor’s house-hold. In fact, no obligation to restore the property could arise unlessand until a decree for cancellation had been pronounced. The decisionsof this Court in Government Agent, Western Province v. Pallainappa Chetty*and Ponnamperuma v. Gunasekere5 are distinguishable because theywere concerned only with deeds of gift which expressly empowered thedonor to revoke the gift by his own act and without the intervention ofthe Court. In such an event, the donee’s repudiation of the right ofrevocation would clearly have constituted a “ breach ” of the contractgiving rise to a cause of action contemplated by Section 6. In this-case there was no such breach, and Section 10 of the Ordinance applies-because no special provision has been made for a cause of action of this-kind. If that be the correct view, it was conceded in argument beforeus that the action was prescribed. I would therefore set aside thejudgment appealed from and dismiss the plaintiff’s action with costsin both Courts.
. Gukasekaea J.—I agree.
Appeal allowed.
Vol. 1, pages 432 and 437.3 (1926) A. G. at page 510.
(1942) A. C. 154.4 (1908) 11 N. L. R. 151.
5 (1921) 23 N. L. R. 235.