Tissera and William
1941Present: Keuneman J.
TISSERA, Appellant, and WILLIAM, Respondent.
235—C. R. Panadure, 9,121.
Donation—Doneein possession ofproperty—Claimby donor’s heirs
A donee, who is in possession of property gifted to him may availhimself ofthe exceptio doli when he is sued by the donor or by any
person claiming under him.
113 N. L. B. 264.
2 29 N. L. B. 411.
(1904) A. C. 179.
KJECTNEMAN J.—-Tissera and William
PPEAL from a judgment of the Commissioner of Requests,Panadure.
G. P. J. Kurukulasuriya for plaintiff, appellant.
A. Rajapakse, K.C. (with him D. Abeywickreme) for defendants,respondents.
Cur. adv. vult.
June 13, 1944. Keuneman J.—
The facts of this case are as follows : —The premises in question belongedoriginally . to Dona Agnes Hamine, who mortgaged the property onDecember 15, 1929, by Mortgage Bond 1305 to Babunhamy. There-after Dona Agnes Hamine and her husband Marthelis Tissera by deedD 1, No. 1,351 of July 21, 1930, donated the premises to their daughter,•the second defendant, and her husband, who entered into possession of thepremises. The donation was made in consideration of natural love andaffection for the seeond defendant, and also in consideration of themarriage which was shortly to be solemnised. Thereafter Babunhamyput the mortgage bond 1,305 in suit and purchased the property himselfby P 1, No. 1,449 of November 1, 1935. We may take it that the title ofDona Agnes Hamine was thus determined. But Babunhamy by deedP 2—No. 1626 of November 10, 1936—transferred the premises toMarthelis Tissera, husband of Dona Agnes Hamine, and one of the donorsin D 1.
Marthelis Tissera died thereafter, leaving his widow, Dona AgnesHamine and several children including the plaintiff and the seconddefendant. Dona Agnes Hamine by deed P 3, No. 571 of March 29,1941, purported to transfer a half share of the premises to the plaintiffwho now sues the second defendant for this as well as for the inherited-share-from Marthelis Tissera.
The only issue which has been determined in the case is issue 9:■“ Does the purchase by Marthelis Tissera on deed 1626 of November 10,1936 (P 2) aecrue to the benefit of the defendants? ”
The learned Commissioner decided this issue in the affirmative.Counsel for the appellant argued that under this issue the Commissionerhas utilized the exceptio rei venditae et traditae, and that this exceptionis not applicable to the case of a donation. Certainly no authority hasbeen cited to me to show that this exception applies in the case of adonation, nor am I satisfied that a donation of this kind can be regardedas a sale.
Voet (XXXIX 5, 10) dealing with donations states as follows:—“ Whena donation of all one’s property is made simply, without any expressmention of future property, it is the better opinion that the donation isunderstood to be of the present property only and not of future propertyalso, first because …. in case of doubt "the presumption shouldnot be in favour of a donation, secondly because a donation is strictijuris and on that account should receive a stricter construction so as toburden the donor as little as possible …. and lastly becausewith regard to legacies also the same rule of interpretation is applied, viz.,
KEUNEMAN J.—Tissera and William
that in the case of doubt present property only and not future propertyis included therein See Voet’s Commentaries, de Sampayo’s Transla-tion, p. 15).
But even if this particular point is decided in favour of the appellant,
I do not think it is the end of the matter. Voet (XXI 3, 2)—see Berwick’sVoet, 1902 edm., p. 544—points out that while the purchaser still possessesthe thing and the same persons that are liable to be sued by him bring anaction to evict the property from him, he may repel the vendor and otherlike persons either by the exceptio rei venditae et traditae or by theexceptio doli.
As regards the latter plea Voet states that “ One acts dishonestly'who tries to evict a thing sold by himself and to stultify his own act;equity dictating that a plaintiff should be all the more liable to be repelledby an equitable plea (exceptio) when he is himself liable to be sued onaccount of the eviction.” Berwick’s note makes it clear that not onlythe vendor but those claiming under him, such as persons to whom hehas subsequently sold the land, can be repelled by this plea.
Can the exceptio doli be raised by a donee? Perezius on Donations8.54.14 (Wiekramanayake’s Translation, p. 10) states as follows: —
" Nor can the property of another be effectually gifted inasmuch asit can be recovered and the ownership therefore is not acquired by himto whom the gift was made .. wherefore if a father donates
the property of his son, the son can lawfully claim it back unless he is theheir of his father, for if he succeeds to his father and wishes to claim backthe property gifted from the other man he will be repelled by the exceptio-doli mali
This is not the identical case we are considering, but I think thepresent case is stronger. Here Marthelis Tissera had no title at the timehe donated. He subsequently obtained title. If he had brought theaction, I think he could have been repelled by the donees in possession byvirtue of the exceptio doli. I think the same fate must befall the plaintiffwho claims under Marthelis Tissera.
I may add that the case of Don Mathes v. Punchihamy 1 deals with adifferent state of facts. There the original owner Siman, who had titleonly to a fractional share gifted the whole property to the plaintiff.Thereafter Siman acquired title to the remainder' of the property.Plaintiff who had not obtained possession sued for the whole property,but his title was only upheld to the fractional share which Siman hadat the date of the gift. Clarence J. added that ‘‘ the conveyance beingmerely a voluntary one, we are disposed to think that Siman’s subse-quently acquired title cannot be availed of by the plaintiff, and that theplaintiff must take the subject-matter of the gift as it stood at the date ofthe conveyance ”. With respect I agree with this decision. But thereis a considerable difference between the rights of a plaintiff in a case andthose of a defendant in possession, and I am of opinion that a defendantin possession can avail himself of the exceptio doli.
The appeal is dismissed with costs.
Wendt’s Heps. 122.
TISSERA, Appellant, and WILLIAM, Respondent