27 NLR 203

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 27 NLR 203
• Date: 11 September 1925
• Case Number: NLR27V203
• Type of Document: Case report

203

Present: Schneider and Dalton JJ.

ARUMOGAM VALLIAMMA et al. v. KANAGARATNAM.

107-D. C. Batticaloa, 5,396.

Donatio propter nuptias-Acceptance-Marriage of donees-Registration of marriage--Postponement of possession-Refusal to give notice- Condition precedent.

Acceptance is necessary for the validity of a donatio propter nuptias. Where a donatio propter nuptias has not been accepted at the time of its execution the subsequent marriage of the donees may amount to acceptance.

Where such a donation was expressed in the following terms :- " We hereby give, endorse, assign, and set over the immovable property, hereinafter described to our daughter, Sellatangam, and Kanagaratnam (defendant), the bridegroom-elect; "

After which came the following clause:-"The immovable property shall be taken charge of by our daughter, the said Sellatangam, and bridegroom, Kanagaratnam, from the day of registration and consummation of their marriage lawfully."

Held, that the deed gave an absolute grant, and that it did not make registration of the marriage a condition precedent to the transfer of title under it; the effect of the latter clause being to deprive the donees of the right of possession to the property immediately.

Held, further, that where the marriage could not be registered owing to the refusal of the father (one of the donors) to give his consent to it the donors were not entitled to withhold possession of the property from the donees.

204

THE plaintiffs in this action sued the defendant for the cancellation of deed of gift No. 5,111 dated September 11, 1919. Sellatangam, the daughter of the plaintiffs, was married to the defendant, and on the date of the marriage the said deed of gift was executed in their favour.

The deed itself contained the provision that the property was to be taken in charge of by the donors' daughter and son-in-law from the day of registration and consummation of their marriage -lawfully.

Thereafter defendant and Sellatangam continued to live as husband and wife for several years, during which time the husband repeatedly requested his father-in-law the first plaintiff to give the requisite consent to the registration of be marriage, but the father-in-law put him off on various pretexts.

Sellatangam died on May 28, 1922, and in the administration of her estate the present lands were included. Objection was then taken by the plaintiffs that the deed was of no effect inasmuch as the marriage was not registered.

The present action was brought to set the deed aside, and the learned District Judge gave judgment in favour of the plaintiffs, holding that, as the marriage had not been registered, title to the land had not passed to the defendant.

Hayley (with him Soertsz), for defendant, appellant.-This is an action by the parents to oust the defendant out of downed lands. Plaintiffs by deed No. 5,111 of September 11, 1919, conveyed this among other lands to defendant and his wife, their daughter. She died on May 28, 1922, leaving the husband and one child as heirs to her estate. Plaintiffs now claim that the deed is of no effect inasmuch as a condition precedent to its taking effect, viz., registration of the marriage has not taken place.

The real purport of the deed was to make a settlement on the marriage, and the mere fact that registration is mentioned, perhaps by the notary, cannot take away the effect of the deed. It seems to be that, now that the daughter is dead, plaintiffs wish to deprive the defendant of the property. What the deed really required was a lawful marriage and that has been consummated and there is a child of that marriage.

Besides, registration is merely an incident in the marriage. The parties have been married according to custom, and that is sufficient compliance with the condition in the deed.

Even if registration be a condition precedent, the condition is still ineffective as non-fulfilment thereof was due to plaintiffs' default. The wife was a minor at the date of the marriage and was so till her death. The father's consent was necessary and there is evidence that he repeatedly put off the registration.

205

There is an implied covenant in a condition of this kind that the other party must do all that is necessary to put the party charged with default in a position to fulfil the condition (vide 10 Hal. 479 ; also Welb v. Plummer1[1 2 B. & A. 746.] Shrewsbury v. Gould 2[ 2 B. & A. 487.]).

To put the argument in another way, plaintiffs having originally prevented registration are now estopped from relying on it and turning it against us. Spencer Bower on Estoppel, p. 214.

In the actual course of things registration takes place after the marriage and hence may even be treated as a condition subsequent which is now no longer possible of accomplishment. In any event full dominion having been conveyed by the deed and possession of the lands also granted to the defendant, if there was such a condition it must be deemed to have been waived.

Lastly, the action as at present constituted cannot stand. The plaintiffs in the present action seek to vindicate title to one of the lands in the deed. Therefore the deed itself cannot be set aside as it will affect other lands as well.

Drieberg, K.C. (with him H. H. Bartholomeusz), for plaintiffs, respondents.-When the full terms of the deed are referred to it becomes quite clear that both defendant and his wife had an interest in getting the condition fulfilled. She does not seem to have been keen in getting the marriage registered. If consent was unreasonably withheld application could have been made to the District Judge. What would appear to have taken place is that the period of probation was not gone through satisfactorily by the defendant. In 1920 a property appears to have been gifted to the daughter alone with a fidei commissum.

The condition regarding registration is a condition going to the root of the matter, and even if it lies entirely with the plaintiff, still he can refuse to fulfil the condition and the deed loses its validity.

Besides, there is no acceptance on this deed sufficient in law to constitute an acceptance. The learned Judge has not dealt with this matter. Maternal uncle's acceptance is no acceptance. The only acceptance then is marriage. But what marriage ? A registered marriage.

[SCHNEIDER J.-The operative part gives an unfettered grant. The registration is only the point of time at which possession is given.]

On the question of the waiver of the condition it must be noticed that it is a condition affecting interest in land and therefore cannot be lightly varied. Certainly not by an oral agreement or by conduct implied from the circumstances of the case.3[3 Ameer Ali s. 92 and 22 Madras 261.]

206

Hayley, in reply.-Possession was to be given on the registration. if this is to deemed a condition precedent it must be deemed been waived as defendant was put in possession of this and several of the other lands soon after the marriage, and has been in possession since.

September 11, 1925. SCHNEIDER J.-

Sellatangam, the daughter of the plaintiffs, was married according to Hindu custom to the defendant on September 11, 1919. On that day, presumably before the marriage ceremonies were performed, the plaintiffs executed deed No. 5,111 in Tamil. Of three translations of it which are in the record, I accept the two which are both marked D 1. They are almost identical. One is by a sworn translator. I quote below from the other translation which is by the Interpreter Mudaliyar of the lower court. The deed commences : " On the 11th day of September, 1919, we (plaintiffs) do hereby give, endorse,...