Jayavickreme Et Al. V. Amarasuriya

[PRIVY COUNCIL.]

Present: Earl Loreburn, Lord Atkinson, Lord Scott Dickson, and Sir Arthur Channell.

JAYAWICKREME et al. v. AMARASURIYA.

D. C. Galle, 11,862.

    Consideration-Justa causa-Compromise of threatened action-Verbal agreement to pay money-Action to enforce the verbal agreement- Agreement enforceable, though the fist threatened action was not enforceable in late-Duty of Judge to frame proper issues on the facts proved at trial.

The plaintiff averred that the defendant held certain property received by him from his mother in trust for himself and the plaintiff in equal shares; that the plaintiff had threatened to institute against him a suit to compel him, in performance of that trust, to assign to her an undivided half share of this property; that after much negotiation an amicable settlement was arrived at on the terms following: first, that the plaintiff should refrain from instituting the contemplated action, and should not assert title to any share of the aforesaid properties; and secondly, that the defendant should in consideration thereof pay her a sum of Rs. 150,000 in five yearly instalments.

The District Judge held that the defendant made the promise, but that there was co trust as alleged by the plaintiff. He dismissed the action, holding that the compromise could not be supported, because the alleged trust which the plaintiff threatened to enforce by action was not enforceable at law, nor a justa causa debendi.

Held, that the plaintiff could have successfully maintained an action against the defendant on the promise mentioned, even if no suit had ever been threatened and no compromise ever been made, inasmuch as the promise was made deliberately, after much negotiation, in discharge of the moral obligation found to rest upon the defendant to do an act of generosity and benevolence to his sister. " But however that may be, if the plaintiff had threatened to institute a' suit to compel the defendant to discharge this moral obligation and do this act of benevolence to her, and had undertaken not to proceed with that suit on the terms that he (defendant) should make the above-mentioned promise, the promise could have been enforced, whether the suit was likely to fail or not."

"If at the trial the District Judge, who had full control over the record, had amended the issue so as to suit the facts proved, he should have given a decree in favour of the plaintiffs for the sum sued for. He did not do so. He, on the contrary, seized the word ' trust ' used in the plaint, and having found that no trust existed,

decided against the plaintiffs, although they had established before him a good and meritorious cause of action according to the system of law applicable to the case."

" It may well be that according to English law, as a general rule, an existing moral obligation not enforceable at law does not furnish good consideration for a subsequent express promise, but according to the Roman-Dutch law a promise deliberately made to discharge a moral duty or to do an act of generosity or benevolence can be enforced at law, the justa causa debendi, sufficient according to the latter system of law to sustain a promise, being something far wider than what the English law treats as good consideration for a promise."

June 4, 1918. Delivered by LORD ATKINSON: -

The original defendant, Henry Amarasuriya, died since the commencement of this action, and his widow and executrix has been made a defendant in the suit. She is the sole respondent. The female plaintiff and the original defendant were sister and brother, children of T. D. S. Amarasuriya, deceased, who died in the year 1907 possessed of some considerable property, which he left by will to his widow. The widow subsequently made over this property to the deceased defendant, without making any substantial provision for the female plaintiff and her family.

The action was broug

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