1919.      Present: Ennis A.C.J, and Loos A.J.

FERNANDO et al. v. SOYSA.

117-D. C. Chilaw, 6,022.

Donation to take effect after donor's death-Donation inter vivos-Mortis causa-Executrix de son tort-Widow selling property without joining    the    children-Debts.

A gifted a property to B "as a gift that cannot be revoked at any time for any reason whatever, which' is to be owned by him after   my    death."

Held, that was not a donation mortis causa, but a donation inter  vivos

" A donation inter vivos vests at once in the donee, and it is only the delivery of the property which is postponed till a later date; and with the consequence that the donation is transmitted to . the donor's   heirs    if    the    donee    happens    to    die    before    the    donor."

THE  facts appear from the judgment.

Samarawickreme, for the appellants.

A. St. V. Jayawardene, for the respondent.

July 7, 1919.   Ennis A.C.J.-

This was an action for declaration of title to a half of a defined one-fourteenth portion of a  land called Davulkurundumukalana. It appears that the land was granted in 1889 by the Crown to one  Domino  Perera,   who  divided  it  into  two  portions,   and  sold

the  western  half   on   November  24,   1892,   to   Catherina  Fernando. Catherina Fernando divided this western portion into seven portions, and gifted a separate one-seventh to each of her children. The deed  of gift to Augustinu is P 2,  No.  13,807 of July 28,  1894,  and it conveyed to Augustinu for the love and affection she bore towards him, " as a gift that cannot be revoked at any time for any reason whatever, which is to be owned by him after my death. " Augustinu Fernando died before his mother,  leaving as his heirs his widow Martha Perera and two children, the first and second plaintiff in the case.    Martha Perera on June 18, 1902, joined in a deed with the six surviving children of Catherina, and conveyed to Domino Perera " all the right, title, and interest, which we, the said vendors, and our heirs and assigns, hold. "In the recital, Martha Perera, who was the seventh-named party in the deed, stated that " she was entitled to a share through my husband,  and also mentioned in the deed of gift bearing No.  13,807. "    In acknowledging receipt of the con­sideration,  the deed,   on behalf of Martha  Perera,  says:     " I,   the seventh named, received my share for the payment of a part of the amount payable unto   the   said   two   Chetties by my above-named deceased husband Augustinu Fernando upon mortgage bond bearing No. 15,014 dated May 7, 1898. "    The learned Judge says that this document  of   1902   conveyed  to  Domino  Perera   the   whole  of   the one-seventh share gifted to Augustinu by his mother, if it conveyed anything   at  all.    But   the  first  issue   in   the   case,   which   was   as to   whether   the   one-seventh   gifted   to   Augustinu   formed   part   of Augustinu's estate, was answered in the negative, on the ground that the gift was subject to the condition that the donee should become the owner after the donor's death,  and that Augustinu predeceased his mother, that there was a revocation of the gift in his favour, and no title vested in the heirs.    This conclusion is the first point challenged on the appeal.    The respondent in this connection cited a passage from Maasdorp, vol. 3, 9.    This passage was based on Voet, 3, 5, 3, and is only a small portion of the paragraph in Voet.    It was " an incomplete donation is one, which is given with the intention that the thing is not to become the property of the donee until some other event has taken place, or that it is to become his property at once, but is to revert to the donor upon the happening of a certain event. " Voet in 39, 5, 3,  dealing with complete  and incomplete donations, says that in the category of incomplete donations are donations mortis causa and donati