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PUBLIC TRUSTEE v. MRS. N. SENEVIRATNE
NLR54V145
1952 Present : Gratiaen
J. and Gunasekara J.
PUBLIC TRUSTEE, Appellant, and MRS. N. SENEVIRATNE,
Respondent
S. C. 459-D. C. Colombo, 1,942
Donation-Cheque given by
donor-Refusal of Bank to honour the cheque-Death of donor-Right of donee to sue
legal representative.
Under Roman Dutch law a donation may be made not only by giving and
delivering but also by promising. Both the giving causa donationis and the
promising causa donationis are equally donations.
R. offered to donate to plaintiff a sum of Rs. 5,000 and plaintiff accepted the
offer. Contemporaneously with the acceptance of R.'s offer to donate Rs. 6,000,
plaintiff received a cheque for that amount from R. The Bank, however, refused
to honour the cheque on the ground that R.'s signature was doubtful. Before R.
could satisfy the Bank in regard to the authenticity of his signature, he died.
In an action instituted by the donee to recover the amount involved from the
administrator of R.'s estate-
Held, that the mere drawing of the cheque did not serve
automatically to appropriate to the donee's benefit an equivalent sum of money
lying to the donor's credit at the Bank. Nevertheless, under Roman Dutch Law,
the plaintiff was entitled to sue on R.'s promise simpliciter.
APPEAL
from a judgment of the District Court,
Colombo.
N. E. Weerasooria, Q.C., with E. R. S. R. Coomaraswamy, for the
defendant appellant.-The District Judge has taken the view that the cheque was
an assignment of the money in the hands of the banker. This view was based on an
English case, Bromley v. Brunton 1[(1868) L. R. 6 Eq. 275.], which,
it is submitted, is not good law. See the judgment of Romer J. in re Owen, Owen
v. Inland Revenue Commissioners 2[(1949) 1 A. E. R. 901.]. See also
re Swinburne 3[(1926) Ch. 38.], and Re Beaumont 4[(1902) 1
Ch. 889.].
H. W. Jayewardene, with S. J. Kadirgamar, for the plaintiff respondent.-Bromley
v. Brunton (supra) was not followed in later cases because in English law there
must be delivery. Roman Dutch law is different. A promise to pay money is
implied in the transaction and must be given effect to. No delivery of the gift
is necessary. The cheque was only a direction to the bank to pay the money. See
Morice : English and Roman Dutch Law, 2nd ed., p. 108 ; Parampalam v.
Arunachalam 5[(1927) 29 N. L. R. 289.]; Public Trustee v. Uduruwana
6[(1949) 51 N. L. R. 193.].
N.. E. Weerasooria, Q.C., in reply.-There is no evidence that the
deceased promised to give money. That was not the case of the plaintiff. He
relied solely on the cheque. The District Judge was wrong in law as to the
effect of the cheque.
Cur. adv. vult.
June 9, 1952. GRATIAEN J.-
This is an appeal by the Public Trustee, who is the administrator of the estate
of a deceased gentleman named P. D. R. W. Siriwardene (but better known during
his lifetime as " Peter Rodrigo "), against a judgment and decree of the
District Court of Colombo ordering him to pay to the plaintiff a sum of Rs.
5,000 out of the deceased's estate. The action relates to a transaction which
had taken place a few days before Rodrigo died in November, 1947, leaving a last
will whereby he bequeathed the entirety of his estate to charitable causes.
The Public Trustee admittedly had no personal knowledge of the circumstances
upon which the plaintiff's action was based, and he therefore put her to strict
proof of her claim. In addition, acting apparently on information received from
some disgruntled relatives of Rodrigo, he repudiated the transaction by
challenging Rodrigo's mental capacity at the relevant date ; he also raised
certain special defences such as were set out in his plea of undue influence. It
is but fair to the plaintiff to record the fact that all these allegations were
conclusively proved to be without substance. Mr. Weerasooria very properly did
not contest any of the findings of the learned District Judge on these issues,
an
