022-NLR-NLR-V-46-SELLASAMY-Appellant-and-KALIAMMA-et-al.-Respondents.pdf
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SIR JOHN BEAUMONT.—Sellasamy and K alia mm a.
[In the Privy Council.]
1944 Present : Lord Thankerton, Lord Wright, Sir John Beaumont.
SELLASAMY, Appellant, and KALIAMMA et al.,Respondents.
36 D. C.—(Test.)—Kandy 5,437.
Collation—Gift given «n contemplation of marriage—Occasion of marriage—Release of 'property from collation—Burden of proof—MatrimonialRights and Inheritance Ordinance (Cap. 47), s. 35.
A gift given in contemplation of marriage is a gift given on the “ occasion of marriage ”, within the meaning of section 35 of the Matrimonial-Rights and Inheritance Ordinance and a child is bound to bring such igift into collation whether the marriage takes place or not.
The burden of proving that the property was released from collationis on tbe person who asserts it.
^y^PPBAL from a judgment of the Supreme Court-.-1 ■
Cut. adv. vult.
November 27, 1944. Sir John Beaumont.—
This is an appeal from the judgment and decree of the Supreme Courtof the Island of Ceylon dated June 17, 1941, affirming an order ofthe District Court of Kandy, dated February 3, 1941, in proceedings*for the administration of the estate of one Ponniah who died in the year1936. The appellant is the eldest son -of Ponniah by his first marriage
1 42 N. L. R. 516.
SIR JOHN BEAUMONT.—Sellasamy and Kaliamma.
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and the respondents are children by a subsequent marriage. After thedeath of Ponniah, his widow applied for letters of administration to hisestate which were granted on June 28, 1937, various matters, which,were in dispute between the parties, being referred to a judicial settlement.The only dispute which is relevant to this appeal is as to whether theappellant is bound to bring into hotchpot in the distribution of the estatea gift made to him by his father on November 1, 1927. Both the lowercourts have held that the appellant is so bound.
The relevant facts may be stated shortly. The appellant was born inthe year 1896, and in the year 1926 his father was anxious that he shouldmarry a cousin, by name Ponnamma. On September 7, 1927, theappellant gave to the Registrar of Marriages of the Division of MataleSouth in the District of Matale written notice that a marriage was intended■ to be held within three calendar months from the date thereof betweenhimself and Ponnamma who was described in the notice. The deed of giftwhich has occasioned this dispute was made on November 1, 1927, that isduring the currency of this notice. It was executed by the deceased,Ponniah, and the appellant, and it states that in consideration of naturaloffspring love that the deceased had towards the appellant in expectationof all necessary aid and assistance from him during the deceased’s lifetimeand diverse other good causes, the deceased gave unto the appellant as anabsolute gift irrevocable on any account the immovable property thereindescribed, of the value of Rs. 6,000, subject to the donor’s life interest,and the appellant accepted the gift. The contemplated marriage' did not ,in fact take place, and, although the donor lived until the year 1936, hetook no step to recall the gift.
The question whether this gift is liable to be brought into hotchpot bythe appellant in the distribution of his father’s estate depends upon theconstruction of section 39 of Ordinance No. 15 of 1876 (subsequentlyreplaced by section 35 of Chapter 47 in the Revised LegislativeEnactments issued in 1938), which is in the following terms: —
“ Children or grandchildren by representation becoming with theirbrothers and sisters heirs to the deceased parents are'bound to bringinto hotchpot or collation all that they have received from their deceasedparents above the others, either on the occasion of their marriage or toadvance or establish them in life, unless it can be proved that thedeceased parents, either expressly or impliedly, released any property sogiven from collation ”.
Although the deed of gift does not mention the contemplated marriage,the lower courts were clearly right in admitting evidence as to the circum-stances in which the deed was executed and the state of the donor's •knowledge at that date. The principal argument for the appellant beforetheir Lordships has been that a gift cannot be said to have been made onthe occasion of a marriage if in fact no marriage takes place. If theexpression “ on the occasion of their marriage ’’ be held to mean on thehappening of the marriage, the occasion of the marriage and the occasionof the gift being the same, such a construction would rule out the normalcase of a gift by a parent to a- child made shortly before or after the child’smarriage designed to help the child to set up a matrimonial home. Such
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JAYETTLEKE J.—Ratnayake and Inspector of Police, Moratutoa.
gifts oan seldom be made upon the actual solemnization of the marriage.Their Lordships agree with both the lower courts in thinking that this istoo narrow a construction to be placed upon the section. They think thatthe relevant consideration is what at the time of the gift, was the donor’sintent. If the marriage or contemplated marriage was a factor inducingthe gift, then the gift was made on the occasion of the marriage, and, intheir Lordships’ view, it is irrelevant that a marriage, in fact, never tookplace. Both the lower courts construed the section in this sense, and so•construing it, held as a fact that the gift was oh the occasion of themarriage. Their Lordships see no reason for departing from their normalpractice of not interfering with a concurrent finding of fact.
It was further argued that the donor impliedly released the propertygiven from collation within the last sentence of the section, because, duringthe nine years in which he lived after the date of the gift, he took no stepsto recall it. Once it be accepted that the gift was made on the occasion•of the marriage the burden is upon the appellant to prove that the pro-perty was released from collation and there are concurrent findings offact by the lower courts that there was no such release; these findingsagain their Lordships accept.
Their Lordships will humbly advise His Majesty that this appeal bedismissed and that the appellant pay the respondents’ costs of the appeal.
Appeal dismissed..