1927 Present: Garvin and Dolton JJ.

PARAMPALAM v. ARUNACHALAM.

166-D. C. Colombo, 20,181.

Donation-Husband and wife-Gift of promissory note-Consideration-Donatio mortis causa-Due execution-Ordinance No. 5 of 1852.

Where a person gave his wife, with the intention of providing for her after his death, a document in the following terms: -

On demand I, the undersigned Parampalam Arunachalam of ....., do hereby promise to pay to my wife Rosamma Annam Arunachalam or order the sum of Rs. 10,000 towards her affection.

(Signed) P. ARUNACHALAM

Held, that the wife was not entitled to claim the money from the estate of her husband-

Per GARVIN J., on the ground that the document, being a promissory note, was not enforceable for want of consideration:

Per DALTON J., on the ground that the document, being a donatio mortis causa, was inoperative for want of due execution.

APPEAL from an order of the District Judge of Colombo.

The defendant is the widow of Parampalam Arunachalam and administratrix of his intestate estate. In an account filed by her as administratrix the defendant showed as a liability of the estate a sum of Rs. 10,000 payable upon a promissory note made by her husband in her favour. The exact terms in which the document was drawn are set out in the head-note. The plaintiff instituted the present action for a declaration that the defendant was not entitled to recover any money from the estate upon the promissory note in question.

The learned District Judge held that the defendant was entitled to recover on the footing of a promise to pay made to her by her husband.

Hayley, K.C. (with Canakaratne), for appellant.-On the question of consideration English law applies (Ordinance No. 5 of 1852, s. 2). The test is whether the defendant's rights and liabilities are in any way affected by the note (Palaniappa Chetty v. de Mel 1[16 N. L. R. 242.]).

[GARVIN J.-The note was subsidiary to the main object, which was to make provision for her after his death.]

Subsidiary in one way, but the note contained the whole contract.

[GARVIN J,-The statement on the document, that it is given" for affection," negatives consideration. In the face of that statement is this a promissory note? ]

The document is within the definition of a promissory note, but it may not be enforceable for want of consideration. Supposing there was consideration in fact, a statement in the note that there was no consideration will not render it invalid.

English law must be resorted to both to determine whether there is a promissory note and to determine whether it is enforceable.

The whole contract is contained in the note. Therefore the only action that lies is an action on the note.

[GARVIN J.-Suppose this document is merely put in as evidence of a promise?]

Here there is no contract at all outside this note. There is no evidence of a loan or sale or other contract as evidence of which the document may be produced. It is produced as the whole contract, and not as corroborative evidence of a contract. The whole action must turn on the note, and the question as to its validity must be determined by English law.

If the transaction be looked upon as a gift with immediate possession, all that the donee gets is a piece of paper; if without possession, there is a donatio mortis causa, but the document is obnoxious to Ordinance No. 7 of 1840. A donatio mortis causa resembles a legacy (Voet XXXIX. 6, 4) and requires the formalities necessary for a will (Van der Keesel, ss. 492, 493: Oliphant v. Grootboom 1[3 E. D. C. 11.]; Nathan, vol. II., pp. 166-167). Instead of a will the deceased has executed a note.

H. V. Perera (with Croos Da Brera), for respondent.-English law does not apply. The action is not on the note. Where the rights involved in the action do not depend on the rights and obligations arising on the note the English law does not apply. The connection referred to in section 2 of