016-NLR-NLR-V-66-S.-KANAPATHIPILLAI-Appellant-and-E.-VETHANAYAGAM-Respondent.pdf
BASNAYAKE, C. J.—Kanapathipillai v. Vethanayagam
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1963 Present: Basnayake, C.J., and Abeyesundere, J.S. KANAPATHIPILLAI, Appellant, and
VETHANAYAGAM, Respondent
5. C. 3111961—D. C. BcUticaloa, 1487/L
Donation—Gift of another person's property—Subsequent acquisition of title by donor—Validity of gift—Exceptio rei venditae et traditae—Exceptio doli.
A gift of property by a person who ia not the owner of it does not conveytitle to the donee even if the donor subsequently acquires title to the property.The exceptio rei venditae et traditae does not apply to the case of a donation.
Plaintiff instituted action against the defendant claiming title to certainproperty as successor-in-title of a donee under a deed of gift executed on 19thNovember 1899 by a person who had no title to the property at the time ofthe donation but obtained title (by Crown Grant) a month later. The defendantclaimed title by right of purchase on 15th July 1950 from the persons whowere said to have inherited the land on the death of the donor. He had beenin possession of the land for eight years.
Held, that the defendant was entitled to succeed. The plaintiff could notclaim that the donee became the owner of the property on the issue of theCrown Grant to the donor after the deed of donation had been executed. Neitherthe exceptio rei venditae et traditae nor the exceptio doli was applicable in thepresent case.
A PPEAL from a judgment of the District Court, Batticaloa.
W. Jayewardene, Q.G., with S. C. Crossette-Thambiah and N. R. M.Daluwatte, for Defendant-Appellant.
Ranganathan, for Plaintiff-Respondent.
September 17, 1963. Basnayake, C.J.—
The plaintiff Eliyathamby Vethanayagam instituted this actionagainst Sinnathamby Kanapathipillai on the footing that KasupathyParigari Clerk Sinnathamby (hereinafter referred to as Sinnathamby)was the owner of garden bearing lot No. 76572 which is depicted in planNo. 2476 in extent 1 acre 2 roods and 28 perches, and that he donated it.to his wife Kathiramalai Sinnathangam (hereinafter referred to as Sinna-thangam) by deed No. 3769 dated 19th November 1899 attested by K.Kandapody, Notary Public. He also pleaded that on her death intestateleaving property below the value of Rs. 1,000/- her only sister Kathira-malai Annammai became her sole heir. He claims his rights throughAnnammai.
The defendant admitted that Sinnathamby became the owner andpossessed the land referred to in the plaint by virtue of Crown GrantNo. 12524 of 18th December 1899, but he denied that Sinnathangam
lxvt—3
2B. 18162—1.865 (5/64)
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BASNAYAKE, C.J.—Kcmapathipillai v. Vethanayagam
was the wife of Sinnathamby. He also denied that KathiramalaiAnnammai was her only sister and sole heir. He maintained that thedeed of gift did not have the effect of conveying the ownership of the landas it was executed before Sinnathamby received the Crown Grant. Thedefendant claimed that by deed No. 13388 dated 15th July 1950 (D2)attested by P. V. Kandiah, Notary Public, he purchased the land from thepersons to whom the land came by inheritance on the death of Sinna-thamby. The defendant has duly registered that deed and he claimsthat that deed prevails over all other deeds by virtue of prior and properregistration. He also claims that he was entitled to a decree by virtue ofsection 3 of the Prescription Ordinance. Admittedly the defendant isin possession and has cleared the jungle, fenced the land and planted itwith coconut trees.
On the date of the trial it was conceded by the plaintiff that the landin dispute was cleared by and whatever improvements effected thereonhad been effected by the defendant; and that in the event of the plaintiffsucceeding, the defendant would be entitled to compensation in regardto such clearing up of the land and the improvements thereto. It wasagreed, of consent, that the amount of compensation payable by the plain-tiff to the defendant in respect of such improvements would be decidedupon by Mr. Tissaverasinge (Surveyor), the Commissioner appointed byCourt.
Learned counsel for the appellant submitted that the judgment of theearned District Judge was wrong on the following grounds :—
{a) The donation was made at a time when Sinnathamby was not theowner.
(6) It is not established that Annammai was the sole heir of Sinna-thangam.
(c) The defendant being admittedly in possession of the land, theplaintiff has failed to discharge the burden imposed on him bysection 110 of the Evidence Ordinance.
Learned counsel submitted that Sinnathamby had not received theCrown Grant at the time he executed the deed of gift, and that Sinna-thangam did not become the owner of the land on the issue of the CrownGrant to Sinnathamby. Learned counsel for the respondent relying onthe cases of Gunatilleke v. Fermndo1 and Tissera v. William2 maintainedthat on the issue of the Crown Grant the ownership vested in Sinna-thangam. The former case deals with the sale of land by a person whois not the owner and not with the case of a donation by such a person.The latter case deals with a donee who is in possession of property giftedto him by a donor who is not the owner of it. In the course of hisjudgment Keuneman J. observed :
» [mi) 22 N. L. R. 385 (P. C7.).
a (1944) 45 N. L. R. 358.
BAS1STAYAKE, C. J.—KanapathipiVai v. Vethanayagam
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“ Certainly no authority has been cited to me to show that thisexception (exceptio rei venditae et traditae) applies to the case of a dona-tion, nor am I satisfied that a donation of this kind can be regarded asa sale.”
But on the authority of a citation from Perezius on Donations1 he heldthat the exceptio doli mali was available even in the case of donations.. Asagainst that are the following observations of Clarence J. in the case ofDon Maihes v. Punchi Hamy 2 :—
“ But the conveyance being merely a voluntary one, we are disposedto think that Siman’s subsequently acquired title cannot be availedof by plaintiff, and that the plaintiff must take the subject matter ofthe gift as it stood at the date of his conveyance.”
In the quotation cited by Keuneman J., Perezius does not say that theproperty of another can be donated. He says—
“Nor can the property of another be effectually gifted inasmuchas it can be recovered and the ownership therefore is not acquired byhim to whom the gift was made.”
and then he prooeeds to state a special case in which the exceptio doli maliwould lie in the following words :—
“ Moreover the title given by the gift of another’s property is usefulin affording an opportunity of acquiring by usucapio, concerning whichsee 1, 2 & 3 ff. Pro donato. The gift alone, however, has not this effectbut the continued possession through him to whom the gift was madetogether with bona fides which has the effect of adding the ownershipthrough the negligence of the true owner.”
Grotius also takes the view that another’s property may not be donated.This is what he says according to Maasdorp’s translation—
“1. Donation or gift is a promise whereby a person, without beingbound to another, out of liberality binds himself to give that othersomething belonging to himself without receiving anything from himin return or stipulating for anything for his own benefit.”
After explaining what he means by “ without being bound ” he goes onto say—
“ 5. We say belonging to himself, for although the sale of another’sproperty may be valid, as will be shown hereafter, the same rule has notbeen sanctioned by the law with respect to donations, and consequentlythe donor is not bound to warrant the property given.” (Maasdorp’sGrotius, p. 203-204).
1 Book VIII, Tit. LIV, Gh. II.
2 Wendt's Reports, p. 122.
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BASN AYAKE, C.J.—Kanapathipillai v. Vetkanayagam
Scherer’s note on this topic is—
“ For the rest it must be observed that warranty against eviction isdue also in other contracts based upon valuable consideration, but noton those which are gratuitous (causae, lucrativce), such as donation, for adonor is not liable for eviction unless he has acted fraudulently or hasgiven an express warranty against eviction (ibid. p. 596).
Van Leeuwen expresses the same view—
“ All things can be the subjects of gifts which are matters of tradeand can be subjected to our ownership, both corporeal and incorporeal.”(Van Leeuwen—Barber’s translation, p. 89).
The Latin is more expressive—
“ Donari non potest, nisi quod ejus Jit, cui donatur.”
Voet too states that donations can be given of one’s own property only—
“ All things may be donated which are the subjects of commercialdealing, and which thus can be sold, hypothecated and bequeathed.This means one’s own things, but not also those of others so as to havethe effect that ownership should be at once transferred by donation tothe receiver, unless the owner should agree. What was written byPomponius, that ‘ nothing can be donated except what becomes theproperty of him to whom it is donated ’ must be understood in thatsense.”
(Voet Bk. XXXIX Tit. 5 sec. 10—Gane Vol. 6, p. 93).
The authorities are all against the plaintiff-respondent and his claim,that. Sinnathangam became the owner on the issue of the Crown Grant,is not entitled to succeed.
Now as to the second ground there is no evidence that Annammai wasthe sole heir of Sinnathangam. In cross-examination the plaintiff stated :“I do not know about Sinnathamby or his family. I bought this landfor Rs. 100/—”. The plaintiff and his vendor are strangers and he isunable to establish that his vendor was the legal owner. He called as hiswitness the Village Headman of Ninthavoor who stated that he knew theland referred to, that the defendant was in possession of it, that he hadfenced it and planted with coconuts, and that he had done so for the pre-vious eight years. The defendant gave evidence of the devolution of thisland to him as narrated in his answer, but it would appear that even hisevidence is hearsay and does not satisfy the requirements of section 32of the Evidence Ordinance. Section 32 (5) reads—•
“ When the statement relates to the existence of any relationship byblood, marriage, or adoption between persons as to whose relationshipby blood, marriage, or adoption the person making the statement hadspecial means of knowledge, and when the statement was made beforethe question in dispute was raised.”
Pciris v. Commissioner of Income Tax
53
There is nothing to show that the defendant had special means ofknowledge of the relationships he deposed to. In regard to the thirdground of learned counsel for the appellant, section 110 of the EvidenceOrdinance reads—
“ When the question is whether any person is owner of anything ofwhich he is shown to be in possession, the burden of proving that heis not the owner is on the person who affirms that he is not the owner.”
Admittedly the defendant is and has been in possession of the land indispute for the last eight years, and under section 110 of the EvidenceOrdinance the burden is on the plaintiff to prove that the defendant is notthe owner. The plaintiff has not succeeded in doing so. The plaintiffin his evidence says nothing about Sinnathangam or her family. There-fore the statement in the plaint that Kathiramalai Sinnathangam diedintestate leaving property to the value of Ks. 1,000/— and leaving behindher only sister Kathiramalai Annammai as the sole heir is not established.The failure to establish that fact is fatal to his case. It is claimed that hepurchased this land from the person who was the owner, which too hehas failed to establish. In our opinion the appellant is entitled to succeed.We therefore allow the appeal and dismiss the plaintiff’s action.
We declare that the appellant is entitled to the costs both here andbelow.
Abeyesundebe, J.—I agree.
Appeal allowed.