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Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Wood Benton.
WEERASOOBIYA et al. v. WEERASOOBIYA et al.
D. C., OaUe, 8,919.
Husband and wife—Gift by husband in fraud of the community—Actionby heirs of wife to set aside gift—Is administration necessary tThe Roman-Dutch Law allows a husband who is married incommunity of property to make gifts of the common property;and his gifts, although extravagant, will be valid against his wife;but if the object of the gift is to deprive his wife of the right whichshe would otherwise have on his death to a half of the commonproperty, it iB a fraud on' her rights, and she or her heirs can claimto have it revoked so far as she has been* thereby defrauded.
An action by the heirs of a deceased wife to set aside a deed ofgift granted by the husband, on the ground that the gift was* a fraudon the community, was held not to be an action to recover propertywithin the meaning of section 547 of the Civil Procedure Code.
“ What, they are seeking to set aside is a deed of gift; if thatis done, then, after an administrator is appointed, they or theadministrator may be able to recover the property; but if theyfail in this' action, there is perhaps nothing'to administer.”
HE facts are fully set out in the judgment of the ChiefJustice.
Sampayo, K.G. (with him H. A. Jayewardene, for the defend-ants, appellants.—Even under the Roman-Dutch Law children ofa married man and unmarried woman are not prohibited from
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taking from their father by will or by donation. Those born of a Oct. 12,1910married man and unmarried woman are not considered to havebeen bom in adultery. See Van Leeuwen 0en8. For. 3, 4, 39;v,
Karonckihamy v. Angohamy;1 Wickremenayaka v. Per era.7& Weeraaoonya
Donations by the husband, though excessive and immoderate,are good, unless a clear fraud on the community was intended bythe husband. See 1 Nathan 227; Voet 23, 2, 54, 55.
Bawa, for the plaintiffs, respondents.—It is not necessary for theplaintiffs to argue that gifts to adulterine bastards are bad. Theyare concerned with the wife’s half share only.
Lewishamy v. De Silva 3 is a direct authority in favour of theplaintiffs; a deed of gift in fraud of the community is liable to beset aside under the Roman-Dutch Law.
The considerations which apply to wills apply to donationes mortiscausa; now neither spouse can deal with property of the otherspouse by will. Counsel cited 1 Maasdorp 200.
Sampayo, K.G., in reply.—Donatio mortis causa is not like a willon all points. There is no authority for the proposition that aperson who cannot make a will cannot make a donatio mortiscausa. Counsel cited Sinirisamy v. Nonis, TJduma Levvai v.
If the husband is gifting away all the community property, thelaw gives the wife the right to obtain an injunction or a separatiobonorum; the husband has otherwise an unfettered right ofdisposition.
There is no proof that the wife had not sufficient properly leftafter making the gifts.
Cur. adv. vult.
October 12, 1910, Hutchinson C.J.—
The plaintiffs seek in this action a declaration that two deeds ofgift, No. 2,877 dated October 12, 1888, and No. 3,370 dated August6, 1896, are invalid, and should be cancelled. They say that theyand the 16th defendant are .the children of the 1st defendant, by hiswife Nonababa, to whom he was married in community; that(paragraph 6) the defendants numbered 2, 3, 5, 6, 7, 8, 9, 10,11, 13, and 15 are the illegitimate children of the 1st defendant bya woman called Balahami and two other women, with whom helived in adultery during his wife’s life; .that the 1st defendant andhis said wife were entitled to the properties mentioned in the plaint;that by the deed No. 2,877 he gave some of those properties tosome of the defendants; that by the deed No. 3370 he gave the wholeof the said properties to the 2nd, 3rd, 5th, 6th, 7th, 8th, 9th,10th, 11th, 13th, and 15th defendants; that Nonababa died intestateon January 31, 1908, leaving as heirs to her half of the commonproperty the plaintiffs and the 16th defendant; and they allege that
1 (1896) 2 N. L. R. 276 (280).3 (1906) 3 Bed. 43.
* 3 (1908) 11 N. L. R. 177.4 (1903) 3 Bal. 24.
6 (1907) 10 N. L. R. 347.
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Oct. 12,2910 the deeds are invalid for want of acceptance, and on the ground thatHutchinson they are in favour of illegitimate children begotten in adultery.
C. J. An answer was filed for 1st, 2nd, 5th, and 7th to 14th defendants,Weerasooriya which was afterwards adopted on behalf of the 15th defendant.
v. They said that the action is not maintainable until administrationWeeraeoonya .gouj> ^he estate of Nonababa, which is over Rs. 1,000 in
value; they denied that Nonababa and the 1st defendant were evermarried, and denied the allegations in paragraph 6 of the plaint;and they asserted that the donees under deed No. 3,370 were thelegitimate children of the donor and his lawful wife, Balahami.
The 4th defendant is the husband of the 3rd, the 12th is thehusband of the 11th; and the 14th is the husband of the 13th.No answer was filed by the 3rd, 4th, 6th, or 16th defendants. The6th defendant was said to be resident out of Ceylon, and was neverserved with the summons.
At the trial it was argued that deed No. 2,877 was revoked by.No. 3,370, which included all the lands in No. 2,877. The contestwas therefore only as to No. 3,870. On the issues of fact the DistrictCourt found that Nonababa was the lawful wife of the 1st defendant,married to him in community of property, and that the plaintiffsare his children by her, and that Balahami was not his wife; andthose findings are not seriously questioned. The other issues were : —
Is the action maintainable for want of administration?
Is it maintainable without a prayer for declaration of title?
Are the deeds invalid for want of acceptance?
Or because the donees were adulterine bastards? –
Or because they were a fraud on the community?
The: District Court answered the 1st and 2nd in the affirmative,and held that deed No. 3,370 was 14 bad as regards one-half of theproperty concerned, on the grounds .that the donees are adulterinebastards and .that it is a fraud on the community." Be accordinglydecreed that deed No. 2,877 be cancelled, and that deed No. 3,370be declared, invalid and cancelled as regards one-half of the propertyconcerned. The 1st to 15th defendants appeal; but I would drawthe attention of the District Court to the fact that there is no proxyfor the 6th defendant, and that the decree and the order for pay-ment of costs are probably not binding on him. The foundationof the plaintiffs* claim is that they and the 16th defendant are theheirs of Nonababa, and as such became entitled on her death toone-half of the common property. The learned Judge says thatin this action they are not seeking to recover the property. They,could not in .this action claim tot recover it, because the half of it ismuch beyond the value of Rs. 1,000, and no administration hasbeen taken out to Nonababa. What they are. seeking is to set asidea deed of gift; if that is done, then, after an administrator isappointed, they or the administrator may be able to recover theproperty; but if they fail in this action, there is perhaps nothing
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to administer. That view is in accordance with the decision inLmvishamy v. De Silva,1 and the ruling of the District Court on thefirst issue was right. And the ruling on the 2nd and 5th issues hasnot been questioned.
Mr. Sampayo, for the appellants, has contended that, assumingthat Nonababa was, and that Balahami was not, the wife of the 1stdefendant, the law does not prohibit a gift by a married man to hisbastard ohildren born to him by an unmarried woman whilst hiswife was living. The. District Judge has, however, decided the case,in effect, on the ground that this gift was “ a fraud on the community, ’1that is, a fraud on the wife’s rights in the common property; and 1think that his judgment should be supported on that ground.
The impugned deed, which is in English, reoites that “ in considera-tion of the love and affection which I bear towards my children,”naming them, "I do hereby give and grant donatio mortis eausaunto the said” doneesL the properties described in the schedules,to hold in equal shares, subject to the following conditions: (1) Thatthe donor reserves to himself the right to sell, mortgage, or other-wise dispose of the property during his life; (2) that' the donees andtheir heirs shall be entitled to and possess the property'after hisdeath; (3) that the donees shall not sell, mortgage, or otherwisealienate the property or any part of it to any one but among them-selves. It is therefore a deed of gift, revocable by the donor duringhis lifetime, and not taking effect at all until his death; so that,although it is not a donatio mortis causa as the donor calls it, it isin substance a will.
The husband has the power to manage and to dispose of thecommon property, and Voet, on the Pandects, 23, 2, 54, says thata gift by him, although immoderate and savouring of lavishnessand prodigality, is upheld, ” unless it appears that a husband whowas thrifty enough in other respects, and not given to uselessextravagance, acted with liberality at the last , moment of his lifeso as to commit a fraud upon his wife or upon her heir, and withoutany other probable reason for his gift. If, for instance, he gave aconsiderable part of his patrimony to his own nearest relations,such as the children by a former marriage or others, or if he bestowedthe gift upon a stranger at a time when his wife was ill or at the pointof death, or supposing that there were other circumstances fromwhich a presumption of fraud was quite clear. In such cases it isright that the wife or her heirs should be relieved. And upon thedissolution of the marriage the wife or her heirs first deduct (from theestate) so much as was unreasonably consumed in liberality, or ifafter the payment of the debts there is not enough left, then thewife or her heirs can have recourse to the actio Payliana in order torevoke the donation so far as the wife has been thereby defrauded.”This statement is recognized as good law, and reproduced in otherauthorities, such as Nathan 1, 221. .
i (7906) 3 Bal. 43.
out. a, mo
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Oct. 18, 1810 By deed No. 2,876 dated October 12, 1888, the donor, recitingn^-TT71Vru that he had four children by his wife Nonababa (viz., the plaintiffsC. J. and the 16th defendant),, and that since his wife’s desertion heWeenisooroyo been living with Balahami and had several children by her,v. and that he wished to give all his property between his legitimateWearasoanya aruj jjg illegitimate children, gave certain lands to each of his fourlegitimate children to belong to them after his death, and reservingto himself the right to 8ell or mortgage or otherwise dispose of themduring his life. By deed No. 2,877 dated the same day he madesimilar gifts of other lands to his illegitimate children by Balahami.Then by deed- No. 8,870 he gave to his illegitimate children all theproperties included in both the earlier deeds, and also some jewelleryand furniture. So that it seems that the two earlier deeds were ineffect, though not in express terms, revoked by No. 8,870; and thatby the latter deed he purported to give his illegitimate childrenpraetioally " all his property.”
This deed seems to me to be exactly such a one as, according toVest’s Statement of the law, can be attacked by the wife or her heirsby an action such as this. The husband (who has died since thisaction was instituted) gives by it practically the whole of his pro-perty to his illegitimate children after his death. It is in effect, ifnot in form, a will; and his only object in making it must have beento benefit his illegitimate Children at the expense of his wife and herheirs; to deprive her of the right which she would otherwise havehad to half of the common property which remained on is death.It does not appear to me to matter whether the donees were hisillegitimate children or strangers. If I rightly understand theBoman-Dutch Law on this subject, it allows a husband who ismarried in community of property to make gifts of the oommonproperty; and his gifts, although extravagant, will be valid againsthis wife; but if the object of the gift is to deprive his wife of the rightwhich she would otherwise have on his death to a half of the commonproperty, it is a fraud on her rights, and she or her heirs can claim tohave it revoked so far as she has been thereby defrauded.
I think that the appeal should be dismissed with costs. If the6th defendant is not bound by the decree, the District Court- canamend the decree in that respect.
Wood Benton J.—
.The plaintiff s-appellants, alleging themselves to be the legitimatechildren of the 1st defendant-appellant and a woman Nonababa,sue in this action for the cancellation of two deeds of gifts, Nos. 2,877and 3,370 executed by the 1st defendant-appellant in favour ofthe 2nd to the 15th defendants-appellants, who according to therespondents, are adulterine bastards of the 1st defendant-appellant.The grounds on which cancellation is claimed are: (1) that the gifts;being to adulterine bastards, are invalid in law; and (2) that, apartfrom thati they were a fraud by the 1st' defendant-appellant, who was
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married to Nonababa in community, of her rights in the oommon Oet. 12,1910property. The defendants-appellants denied that the 1st defendant-—-
appellant had been married to Nonababa at all; and they alleged ^ Wood^
that, in any case, the action could not be maintained without
administration to her estate, and also that the respondents’ claim Weeraaooriyawas prescribed. The following issues were framed at the trial:— Weerasooriya
Is the action maintainable for want of administration?
Is it mintainable without a prayer for declaration of title?
Was first defendant married to Nonababa, mother of- plaintiffs?
Was first defendant married to Balahami ?.
Are the deeds invalid for want of acceptance ?
Or because the donees were adulterine bastards ?
Or because they were a fraud on the community ?
Is plaintiff’s claim barred by prescription ?
On all these issues the learned District Judge found in favour ofthe respondents. Without admitting the correctness of the learnedJtidge’s decision that the first defendant-appellant was lawfullymarried to Nonababa, Mr. de Sampayo argued his case on the basisthat that finding was correct, and confined his argument to the twopoints which I have already mentioned, namely, (1) the invalidityof the gifts on the ground' that the donees were adulterine bastards,and (2) fraud on the community. It is, in my opinion, unnecessaryto deal with the first of these points, for I think that the learnedDistrict Judge’s decision can be, and ought to be upheld on thesecond. It is admitted that by Boman-Dutch Law a husbandmarried in community has full power to alienate inter vivos thecommon property. This power is subject, however (see Burge, 2nded., vol. III., chapter IX., p 463 et seq.) to various checks infavour of the wife. The relations between the spouses could becontrolled to some extent by stipulations in the marriage contract,and where it appeared during the marriage that the husband wasspending the common or his wife’s property and reducing her topoverty, she might claim separatio bonorum at law, and an interdictby the Court placing the husband and his property under curatela onthe ground of his being a spendthrift. In addition to these remedies,
Voet describes another which was available to the wife or her heirson the dissolution of the marriage (Voet, lib. XXIIL, tit. 2, s. 54).
It may be desirable to quote what Voet says on this subject in hisown language:—
Ex donatione mariti, licet ilia immoderata, licet ad profusionematque prodigalitatem spectans, uxori apud Hollandos vicinasquegentes damnum inferri, venue est. Nam si et Venete et died absumtaper maritum uxori noceant, nocere magis debent effuse et sine satisgravi causd donate, cum turpior, majoreque cum uxoris injuridconjuncta sit dissipatio patrimonii scortis facta, quam modum excedensac justam non habens causam donatio: nisi appareat, maritum, incceteris parcum satis, nec inutili deditum profusioni, in fraudem
Oet. IS, 1910 uxoris, aut heredum . ejus liberalitatem majoris momenti sine ullAyVooD probabili donandi caued exercuisse; dum vel proximioribus ex euoRbnton J. intgTet liberie puta priorie thori, aliisve cognatis notabilem patrimoniiWeerasooriya partem dedit, vel etiam extraneo prorsus donatario contulit eo tempore,
quo uxor jam infirma vel morti- vicina erat, vel alice adsvnt circum-
etdntice, ex quibus preesumtio fraudie abunde elueeaoit: tune enimuxori vel heredibufi ejue succurri cequum eet, eatensue saltern, ut solutomatrimonio prius tantundem deduat uxor aut heredes ejus, quantumliberalitate sine causd facta coneumtum est, aut, ei deducto cere alienonon tantum supersit, Pauliana uxori ejusv'e heredibus actio accomo-detur ad revocandum donationem quatensus uxori fraudi fuit.
In support o| this observation Voet refers to the followingauthorities: Ita fete poet multos allegatoe Rodenburch de jure■ conjugum, tit, 2, cap. 1, num. 10, 11. D. Joh. & Someren de jurenovercarum, cap. 4, num.-1, 2, 4, 5. Abr. d Weeel de connubial, con.Societ., tract 2, cap. 3, num. 47 et eeqq. Oroenewegen ad. pr: Inetit.quib. alien. Ucel vel non. num. ult.
I have been unable to obtain access to any of these authoritiesexcept, through the kindness of Mr. de Sampayo himself, to Groene-wegen and A. Wesel. I do not see that the former helps us muchas to fraud on the community. The latter deals with the subjectin tract 2, chapter 111., e. 48, in the following terms.
Quod ei e contra in fraudem uxorie donoverit maritue, quo uxorem,ejusve hceredee quceetibue etante matrimonio fastis interverteret,veluti si, uxore jam infirma, et morti vicina, multurn donatione largitusfuerit: si cuncta bona, vel maxima eorum partem donaverit, utiqueintelligendus erit maritue fraudance uxoris consilium habuisse. 1.ompes 17, § Luciue ff. quce in fraud, credit. Igitur accomodandaerit uxori revocatoria actio, adinetar Pauliance, vel quaridoque directaret vindications ei concedetur.
In Nathan’s Common Law of South Africa, e. 392, also, fraud onthe community is dealt with, and a reference is given to a case,Linde v. Beyers,1 which is unfortunately not ■ available to us inCeylon, where the law as to fraud on the community would seemto have been discussed. On these authorities Mr. de Sampayoargued (1) that the remedy belonged to the wife alone, and thatwhere, as here, she had not complained, no right of action survivedto her heirs; (2) that such an action as the present would only bemaintainable where there had been on the husband’s part an activeintention to defraud the wife of her share of the common property,and that no such intention was disclosed by the evidence; and= (8)that, id any event, it was only where there was not enough left inthe estate after payment of debts- to satisfy the wife’s claim thatshe or her heirs had a right of action, and that that right of actionwas merely a right to revoke the donation to the extent to whichshe had been defrauded out of her property. Mr. de~ Sampayocontended that, even if we were against him on the first and second
* is. a. 411.
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points, all that the Roman-Dutch Law authorized us to do was to Oa. 12,1910send tiie ease back for an inquiry as to whether or not there was Wornany room under the circumstances for the application of the remedy Bbhtos J.with which we are here concerned.WetratooHya
As rgards the right to bring the action, I can see no ground in any mof the few texts that I have been able to find on the subject for holding eeraaoor*Vathat, it did not belong to the heira even if the wife had not chosento avail herself of it. Voet distinctly says that it does belong tothe heirs alternately with the wife, and it seems reasonable that thisshould be the case, inasmuch as a fraud on the community in favourof third parties necessarily imports a prejudice to the lawful heirs.
We were referred by Mr. de Sampayo, in support of his argument.that fraudulent intention on the husband's part was necessary, tothe section in Voet (s. 55) immediately following .that in which hespecifically deals with the subject. Mr. de Sampayo relied on thefoUowing passage: —
Potto sicut donando maritus uxori suae nocere potest, ubi nonapparet manifestum uxoris fraudandoe propoaitum, ita longe magianon acqvirendo id, quod acquirers potuisset.
I do not think, however, .that any of the Roman-Dutch writerson this subject can have meant to do more than to hold that mereimprovident expenditure on the husband's part would not constitutea fraud on the community, and that it is a necessary element inthe composition of that wrong that all the circumstances shouldpoint .to .the husband’s intention to deprive the wife of what isher due. I think that here, as in other departments of the law,fraudulent intention may be established as a necessary inferencefrom all the circumstances of the case. The following passage fromA. Wesel, which immediately precedes the one already quoted, seemsto me to throw some light on the subject:—
Quid enirn si maritus donaverit ob id ipsum, quod existimaret e resocietatis fore, communitatique quant maxinte conducere, ut devinctumhaberei earn, in quem Jonationem confert, licet in eo evcntusexpectationi non respondent? Evidens namque est maritum id omnecijisse ad miiiistrandi animo, non frustrandi, cum Uberalitatemjucundiorem debitor grains, clariorem ingratus faciat ut dicebatPI ini us in Pancgyr Trajan.
If this view of the law is correct, I think that there are abundantcircumstances in the present case from which an inference of fraudmay be deduced. I do not agree with Mr. de Sampayo that weare bound to exclude from consideration' circumstances occurringafter the execution of the deeds, with which we are here concerned,in determining whether or not the 1st defendant-appellant intendedto defraud his wife. We are entitled, I think,’to take account ofhis conduct as a whole, both before and after the date , of theexecution of the deeds, for the purpose of determining what hisreal- intention was.. Moreover, I think that in deciding thisquestion the ordinary legal distinction between motive andintention must be kept in view. If the circumstances taken as a
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Oet. It, 1010 whole point to the conclusion that the 1st defendant-appellantWood intended to defraud his wife of her share in the common property,i Rkstoh J. if is quite immaterial what his motive for doing so may have been. •Weeramoriya If I am right on that point, then .the facts to which Mr. de Sampayo'called our attention, namely, the long separation between husband
0 and wife, the • affection borne by the • 1st defendant-appellant tohis illegitimate children, and the fact that he was not on friendlyterms with some at least of his legitimate children, although theymay have constituted a motive for what he did, will not preventhis act from being a fraud on the community, if it appears that hewas aware of his wife’s rights, and that, he meant to deprive herof them. The fact, too, if it be a fact, that a considerable proportionof the property dealt with in the deeds here in question was broughtinto community by the husband himself will not suffice to negativefraudulent intention. He must be taken to have been aware thatunder the law his wife had an eventual interest in that propertyalso. If we eliminate these considerations, then it seems to methat the 1st defendant-appellant’s disposal in favour of his illegiti-mate children of practically the whole property in common, hisdisinherison for the most part of his legitimate children, his denialsubsequent to the execution of .the deeds in question of their statusas such, with his failure to give evidence at the trial, constitutecircumstances which justify a court of law in holding that theexecution of these deeds is a fraud on the community. I shouldperhaps mention at this stage that in the case of Leurishamy v.De Silva 1 it was impliedly held by Lascelles A.C.J. and Middleton
J.that in such a ,case as the present, where a marriage in communitywas contracted prior .to Ordinance No. 15 of 1876, an action forfraud on the community will lie in the Courts of the Island.
The only other point that has to be deal.t with is Mr. de Sampayo’sargument that in any case the plaintiffs-respondents are onlyentitled to an inquiry as to the extent of the prejudice suffered bythem in consequence of the execution of the deeds, whose can-cellation is sought in these proceedings. No issue was raised on..this point at the trial-, nor, so far as I can see, was any suggestionmade that any property had been left other than that dealt within the deeds out of which the respondents’ claim could be satisfied.I do not think that we ought to allow this point to be raised at thestage which the litigation has now reached. It was admitted at-the trial that .the deed No. 2,877 had been revoked by the deedNo. 3,370, as the latter included all the lands comprised in theformer.. It is, therefore, admittedly only with the cancellation of thepresent deed that we are concerned in this action. I agree to theorder proposed by His Lordship the Chief Justice.
' (1906) 3 Bal. 43. .
WEERASOORIYA et al. v. WEERASOORIYA et al