( 26 )
Present : Pereira J. and Ennis J.
VAITIANATHEN v. MEENATCHI et ah
240—D. 0. Colombo, 33,647,
Collation—Roman Dutch law—Ordinance No. 16 of 1876, 8. 89.
The Boman-Dutch law as to collation was superseded by section.39 of Ordinance No* 15 of 1876, and now collation takes placeonly when a parent gives property to his children, either on theoccasion of their marriage or to advance or establish them in life.
A decree can only be amended by a District Judge in terms ofsection 189 of the Civil Procedure Code. It cannot be amendedon the ground that there is an inadvertent omission in the judg-ment, especially when the Judge is not prepared to recognize thatthere is any such omission.
HE facts are set out in. the judgment of the Additional DistrictJudge (L. Maartensz, Esq.):—9
This is an action for declaration of title to an undivided half of
premises bearing assessment No. 99,* situated in Chekku street, and
premises bearing assessment' No. 176, Sea street.
The premises admittedly belonged to Mudaly Selyanayagam, whohad two daughters, Sivamayam, mother of the plaintiff, and firstdefendant.
The plaintiff would, therefore, be ordinarily entitled to the shareclaimed by him.
The first defendant, however, alleges that her father, having giftedcertain of his properties to her sister’s husband by deed, paade a verbalgift of the premises in dispute to her. She claims in the alternativehalf the premises gifted to her sister’s husband, which she contendsshould be brought into hotchpot.
The following issues were agreed to, namely : —
. (1) Werepremises 177and178, Sea street, conveyedto Candapps
Chetty, husband of. Sivamayam, in pursuance of a divisionof property between Sivamayam alias Sivanasam and firstdefendant 7
(2) Werepremises No.29, Chekku street, and 176, Sea street,
allotted to first defendant ?
, Has the first defendant acquired a title there to by prescription ?
If not, is first defendant entitled to be declared entitled to ahalf share of premises 177, and 178, Sea street ?
According to the 'first defendant, her father, before he died, toldher that hehad given twoofhis houses to her sister,and that she,
first, defendant, was to have the remaining two houses, and thatsince her mother’s death in 1886 she was' looked after by her cousinMurugappah,who collectedthe rents and applied -therents * towards –
( 27 )
It w&b clear from the manner in which first defendant gave herevidence that the evidence regarding a verbal gift was fabricated for thepurpose of setting up a title by prescription.
Undoubtedlythe first-defendant was allowedtoretainpossession of
the premisesin disputeafter her father's death,butthis possession is of
no avail because she was a co-owner, ■ and because plaintiff, who wasbora in 1366, was a minor until seven years ago.
I answer the first, second, and third issues in the negative.
As regardsthe fourthissue-, I am of opinionthatsection69 does not
apply to tiiegift in favour of C&ndappa, as liewasneithera grandchild
or child of Selvanayagam.
I give judgment for plaintiff, &c.
There were three appeals in this case. The first defendant'sappeal (A) raised the question as to collation.
W. Jayewardene (with him Koch), for first defendant, appellant.—The plaintiff must bring the lands 177 and 178 into collation. Thequestion is whether the property was intended for the advancementof the child. Even grandchildren are bound to collate. (4 Burge699; Morice’s B. D. Law 262; Voet 37, 6, 13; Grotius 2, 26, 14;Fan Leeuzoen B. D. L. 454,) The Ordinance No. 15 of 1876 has
– merely re-enacted the Roman-Dutch law. (Van der Straaten’sReports, Appendix A.) The same principles still apply. (5 S. C.C. 113.)
The intention to advance the child in life is clear, and the pre-sumption in law is in favour of such an intention. (4 Burge 706;L. B. 20, Equity 155.)
Meenatchi’s possession commenced during her father’s lifetime,and the issue of prescription should have been decided in her favour.
M. de Saram, for the, respondents (appeals 240 A and 5).—Ordinance No*. 15 of 1876, section 39, now applies. It has supplantedthe Roman-Dutch* law. The gift was to the son-in-law; and a giftof that nature is not liable to collation. The child may obtainno benefit whatsover from such a gift.
H. A. Jayewardene, for appellant in appeal B.
Wadsworth, for respondent in appeal C.
Cur. adv. vvlt.
September 10, 1913. Pbrehla J.—
Appeal 240 A by the first defendant and appeal 240 B bythe third defendant involve practically the same points. Thetwo points pressed before us were (1) that -the plaintiff shouldhave brought into hotchpot or collation the lands 177 and 178,Sea street, given by Selvanayagam to his son-in-law KandappaChetty on the occasion of his marriage with Selvanayagam’sdaughter; and (2) that Meen&tchi had prescriptive possession of the
( 28 )
1918. property in claim in this action. As regards the first, a greatVaitianathcn deal °f Roman-Dutch authority was cited, but, clearly, the Roman-v.Meenatchi Dutch law as to collation was superseded by section 39 of OrdinanceNo. 15 of 1876. Under that section collation takes place onlywhen a parent gives property to his children, either on the occasionof their marriage or to advance or establish them in life. In thepresent case property was given by Selvanayagam, not to hisdaughter, but to his son-in-law. If he intended the property to goto his daughter, there was nothing easier than to execute the con-veyance' in her favour. It is in vain to speculate as to the motivesthat induced Selvanayagam to make a gift to his 6on-in-law. Sufficeit to say that motives are conceivable which preclude the idea thatit was intended that the daughter should not, in due time, get herfair share of the remaining property of the estate of Selvanayagam.
On the second point pressed, it is clear that prescription couldnot run against the plaintiff, as she was a minor. It was arguedthat Meenatchi’s possession began in the lifetime of her father,but of this there is, in my opinion, no satisfactory evidence. I woulddismiss appeals 240 A and 240 B with costs.
In appeal 240 C the appellant (plaintiff) appeals from an orderof the District Judge, dated May 21, 1913, refusing to amend thedecree already entered up in the .case. A decree can only be amendedby the District Judge in terms of section 189 of the Civil ProcedureCode, but the appellant's application did not fall within the scopeof that section. It was based on the assumption that there was aninadvertent omission in the. judgment by the District Judge, but theorder appealed from clearly shows that the District Judge was notprepared to recognize that there was any such omission. Thatbeing so, the present order is right. The appellant's remedy wasto appeal from the decree or judgment. I would dismiss the appealwith costs.
Ennis J.—I agree.
VAITIANATHEN v. MEENATCHI et al