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WEERASOORIYA et al. v. WEERASOORIYA et al.
NLR13V376
Present : The Hon. Sir Joseph
T. Hutchinson, Chief Justice,
and Mr. Justice Wood Renton.
WEERASOORIYA et al. v. WEERASOORIYA et al.
D. C, Galle, 8,919.
Husband and wife-Gift by husband in fraud
of the community-Action by heirs of wife to set aside gift-Is administration
necessary?
The Roman-Dutch Law allows a husband who is married in community 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 which she would otherwise have on his death to a half of the common
property, it is a fraud on her rights, and she or her heirs can claim to 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 of gift granted by
the husband, on the ground that the gift was a fraud on the community, was held
not to be an action to recover property within the meaning of section 547 of the
Civil Procedure Code.
" What they are seeking to set aside is a deed of gift; if that is done, then,
after an administrator is appointed, they or the administrator may be able to
recover the property; but if they fail in this action, there is perhaps nothing
to administer."
THE
facts are fully set out in the judgment of the Chief Justice.
Sampayo, K.C. (with him H. A. Jayewardene, for the defendants, appellants.-Even
under the Roman-Dutch Law children of a married man and unmarried woman are not
prohibited from
taking from their father by will or by
donation. Those born of a married man and unmarried woman are not considered to
have . been born in adultery. See Van Leeuwen Gens. For. 3, 4, 39; .Karonchihamy
v. Angohamy;1 Wickremenayaka v. Perera.2
Donations by the husband, though excessive and immoderate, are good, unless a
clear fraud on the community was intended by the husband. See 1 Nathan 227; Voet
23, 2, 54, 55. Bawa, for the plaintiffs, respondents.-It is not necessary for
the plaintiffs to argue that gifts to adulterine bastards are bad. They are
concerned with the wife's half share only.
Lewishamy v. De Silva 3 is a direct authority in favour of the plaintiffs; a
deed of gift in fraud of the community is liable to be set aside under the
Roman-Dutch Law.
The considerations which apply to wills apply to donationes causa; now neither
spouse can deal with property of the other spouse by will. Counsel cited I
Maasdorp 200.
Sampayo, K.G., in reply.-Donatio mortis causa is not like a will on all points.
There is no authority for the proposition that a person who cannot make a will
cannot make a donatio mortis causa. Counsel cited Sinirisamy v. Nonis, Uduma
Levvai v. Mayatin Vava.5
If the husband is gifting away all the community property, the law gives the
wife the right to obtain an injunction or a separatio bonorum; the husband has
otherwise an unfettered right of disposition.
There is no proof that the wife had not sufficient property left after making
the gifts.
Cur. adv. vult.
October 12, 1910, HUTCHINSON C.J.-
, The plaintiffs seek in this action a declaration that two deeds of gift, No.
2,877 dated October 12, 1883, and No. 3,370 dated August 6, 1896, are invalid,
and should be cancelled. They say that they and the 16th defendant are the
children of the 1st defendant by his wife 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 by a woman
called Balahami and two other women, with whom he lived in adultery during his
wife's life; that the 1st defendant and his said wife were entitled to the
properties mentioned in the plaint; that by the deed No. 2,877 he gave some of
those properties to some of the defendants; that by the deed No. 3370 he gave
the whole of the said properties to the 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 10th,
