Horatala V. Sanchi Et Al.,

Present: Schneider J. and Jayewardene A. J.

HORATALA v. SANCHI et al.

182-D. C. Negombo, 16, 879.

Donation-Action to revoke deed of gift-Ingratitude of donee-Right of transferee to intervene-Civil Procedure Code, s. 18.

Where in an action for the revocation of a deed of gift it appeared that the property had been transferred by the donee, the transferee is a proper party to the action and may be added under section 18 of the Civil Procedure Code.

Per Jayewardene A.. J. -Under the Roman-Dutch law property donated cannot be reclaimed for ingratitude, if the donee has in good faith and without any intention to defraud the donor alienated the same by sale, donation, or any other lawful mode before the question of ingratitude has been raised or the institution of the action for revocation.

APPEAL from an order of the District Judge of Negombo. An action to revoke a deed of gift by which the plaintiff and her husband donated the property in question to the defendant their son subject to certain conditions. The plaintiff, after the death of her husband, brought the present action to revoke the

deed of gift as to her half share on the ground of ingratitude and on the further ground that the donee had violated the conditions attached to the gift. The defendant filed no answer, and the case was heard ex parte and judgment reserved. On the day fixed for judgment, the appellants filed a petition of intervention and asked that they be added as defendants to the action. They claimed the property as purchasers in execution against the donee. Their application was refused, and they appealed.

Weerasinghe. for appellants.

H. V. Perera, for plaintiff, respondent.

January: 30, 1925. Jayewardene A. J. -

This is an action to revoke a deed of gift. The plaintiff and her husband gifted in the year 1908 the property referred to in the plaint to the defendant, their son, subject to certain conditions. The plaintiff's husband died some time ago, and the plaintiff brings the present action to revoke the gift as to her half share on the ground of ingratitude and as the donee had violated the conditions attached to the gift. The defendant filed no answer, and the case was heard ex parte and judgment reserved. On the day the case was to be called for judgment, the appellants filed a petition of intervention, and asked that they be added as defendants to the action. The defendants claimed the property in question as purchasers in execution against the donee. They alleged that the property was sold by the Fiscal in the year 1917. and that they had obtained a Fiscal's transfer on August 4, 1924, a few days before the action was instituted. Their application to intervene was refused, and they appeal. Assuming the Fiscal's sale to be a genuine one, it is clear that at the date of the action the defendant was not entitled to the property, and the legal owners of it were the appellants. According to Voet a donation can be revoked for failure to fulfil the conditions annexed to a donation and for gross ingratitude (39, 5, 22). In the evidence given by the plaintiff no statement is made with regard to the breach of any condition by the defendant, and the plaint does not state which of the conditions annexed to the gift have been violated, and this case may therefore be regarded as one to set aside the deed of gift on the ground of ingratitude or on similar grounds alone. Under the Roman-Dutch law property donated cannot be reclaimed for ingratitude, if the donee has, in good faith and without any intention to defraud the donor, alienated the same by sale, donation, or any other lawful mode before the question of ingratitude has been raised or the institution of the action for revocation. Voet 39. 5, 24: Maasdorp, vol. 3, p. 102: Nathan, vol. 2. s. 1090, p. 1161.

The donee being divested of his right to the property, and being no longer interested in the property, the proper person

Click Here to Read the rest of this document