Public Trustee V. Uduruwana

1949 Present : Dias and Windham JJ

PUBLIC TRUSTEE, Appellant, and UDURUWANA, Respondent

S. C. 359-73. C. Kandy, 2,968

Donation Donatio inter vivos-Donatio mortis causa-Chose in action-Bill of  sale Registration of Documents Ordinance (Cap. 101), Sections 17 and 18.

A, when he was at the point of death, stated, in the presence of witnesses including B, that he desired to give a gift of Rs. 10,000 to B who had been his faithful servant. B, by words and signs, accepted the donation.

Held, (i) that there was a valid donation.

(ii) that the donation was one inter vivos and not a donatio mortis causa needing execution in the presence of five witnesses or by means of a notarial document.

(iii) that the right of B under the donation was a chose in action and, therefore, was valid and effectual without the writing or registration mentioned in sections 17 and 18 of the Registration of Documents Ordinance.

APPEAL from a judgment of the District Judge, Kandy.

E. B. Wikramanayake, K.C., with H. W. Jayewardene, for defendant appellant.-There is no evidence of an offer or a definite acceptance by the plaintiff. Plaintiff cannot accept an offer made to a third party and make it a binding promise. Even if there was a valid offer and acceptance, the gift fails as the promise failed to be implemented. It is in evidence that the deceased on finding that he could not implement the promise gave orders that the terms should be embodied in a codicil ; and he died before it was executed. Even if a cheque had been given it would have been revoked by his death, and now he cannot be in a better position because the cheque was not given to him. In any event this is a donatio mortis causa and not a donatio inter vivos. The evidence discloses that the promissor was conscious of death. Parampalam v. Arunachalam [ (1927) 29 N. L. R. 289.]. A donatio mortis causa requires the formalities necessary for a will-Parampalam v. Arunachalam- (supra) ; Voet XXXIX, 6, 4 ; Meyer and others v. Rudolph's Executors [(1918) A. D. 70 at 85.]. Finally, the gift is void for not complying with provisions §§17, 18 of Ordinance No. 23 of 1927.

H. V. Perera, K.C., with B. H. Aluwihare and R. S. Wanasundera, for plaintiff respondent.-There is clear evidence of offer to plaintiff and acceptance by him. There is evidence of such offer and acceptance on two occasions. Acceptance may be by conduct. There is a difference between a promise which would be binding on acceptance, giving rise to legal rights and obligations, and the implementation of such promise. In this case the implementation of the promise was frustrated. The point that this a donatio mortis causa was not raised in the lower Court. Reference to death is essential in a donatio mortis causa- There must also be evidence to indicate restoration of possession in case of Survival. "Voet XXIX. 6. 1 ; Censura Forensis (Barber's Translation) p. 94, article 25. Relies on Parampalam v. Arunachalam. Dalton J. held on the facts that it was donatio mortis causa. This is clearly a donatio inter vivos.

Even if it is a donatio mortis causa no notarial execution is necessary-Ordinance "No. 7 of 1840 does not apply to donations.

Being a donatio inter vivos, and there being no implementation of the promise, only the promise to pay money exists. The Registration of Documents Ordinance does not apply to a promise to pay money. Choses in action are specially excluded. The Registration of Documents Ordinance deals only with title to movable property.. The Ordinance is not intended to cover instances like this-Charlesworth v. Mills [(1892) A. C. 231 at 235] ; Encyclopaedia of Laws of England, 2nd Ed., Vol. II., p. 242.

Mohamed Bhoy v. Maria Dias [ (1908) 11 N. L. R. 325.]. Assignment of money deposited in Court did not require to be registered. Appuhamy v. Appuhamy [ (1932) 35 N. L. R. 329 at 330.]. Gunatileke v. Ramasamypillai [ (1919) 21 N. L. R. 20

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