Jayesekere V. Wanigaratna

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Middleton.

JAYESEKERE v. WANIGARATNA et al.

D. C., Galle, 8, 720.

Conveyance for dowry is for valuable consideration, though called gift in deed-Priority by registration-Acceptance.

A conveyance of land by a father to his daughter by way of dowry on her marriage is, prima facie, a conveyance for valuable consideration. Such a deed gains priority over an anterior deed of sale by prior registration.

The fact of such a deed of conveyance being called a deed of gift cannot make any difference, if it is clearly proved what the real nature of it was.

No question of acceptance arises with respect to a dowry deed.

APPEAL from a judgment of the District Judge of Gale (W. E. Thorpe, Esq. ).

This was an action for the partition of Kabarayamullewatta-addarakumbura, 68 kurunies in extent. The original owner was one Dines. Plaintiff-appellant, who married a daughter of Dines, claimed, inter alia, 30 kurunies by " gift deed " (P 2) as dowry at

marriage, and sought partition according to pedigree P 1 tiled in the case. P 2 was dated December 3, 1884, and was registered on May 26, 1885. It was not accepted on the face of it.

Plaintiff's rights were contested by the tenth defendant and first defendant, respondents (both also sons of Dines), who claimed the whole field by D 1, by which Dines sold to the first and tenth defendants on October 21, 1878, the entirety of the field. D 1 was registered on November 22, 1886. The respondents contended that, inasmuch as P 2 was a deed of gift, it could not gain priority over D 1 by registration.

The learned District Judge held that D 1 and P 2 were genuine; that P 2 would prevail over D 1 by registration if it was accepted, and if plaintiff had possession; that there was no acceptance; and that plaintiff had not possessed the field.

Plaintiff appealed.

Van Langenberg (with Hayley), for the appellant

 A. St. V. Jayewardene, for the respondents.

The following authorities were cited at the argument: -Fernando v. Fernando, 1 Hamine v. Hamine, 2 Valupillai v. Katiravaloe, 3 Dingiri Menika v. Dingiri Menika et al., 4 Stroud.

Cur. adv. vult,

November 25, 1909. Hutchinson C. J. -

1 do not assent to every word of the judgment of the District Judge, but I think that the conclusion at which he arrived will have to be accepted.

The deed P 2 of December 3, 1884, on which the appellant relies, purports to have been executed by Don Dines de Silva in favour of his daughter " on the day of her marriage as dowry. " He had in fact previously by deed D 1 dated October 21, 1878, conveyed to two others of his children the same lands, of which he conveyed a part by P 2, so that it seems that there was some fraud on his part with regard to one or the other of those deeds. But there is no evidence of any fraud in connection with P 2 on the part of the daughter or her husband. And a conveyance of land by a father to, or for the benefit of, his daughter by way of dowry on her marriage is, prima facie, a conveyance for valuable consideration. It is possible, of course, and it is a thing which is done every day, for the parents or friends of a bride to give her a present on the day of her marriage, a pure gift, which does not form the consideration or any part of the consideration for the bridegroom marrying her. But that is not dowry. And in this country, as in most others, the dowry is almost always the consideration or part of the consideration for the man taking the woman as his wife. The

1 (1901) 5 N. L. R. 230.                                                                 3 (1892) 5 Tam. 94.

2 (1905) 1 Bal. 162.                                                                         4 (1906) 9 N. L. R. 131.

fact of the deed being called a " deed of gift " cannot make any difference, if it is clearly proved what the real nature of it was. As, therefore, P 2 was made for valuab

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