ARUMOGAM VALLIAMMA et al. v. KANAGARATNAM

036-NLR-NLR-V-27-ARUMOGAM-VALLIAMMA-et-al.-v.-KANAGARATNAM.pdf


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Present: Schneider and Dalton JJ.ARUMOGAM VALLIAMMA et al. v. KANAGARATNAM.107—D. C. BaUicaloa, 5,396.
Donatio propter nuptias—Acceptance—Marriage of donees—Registrationof marriage—Postponement of possession—Refusal to give notice—Condition precedent.
Acceptance is necessary for the validity of a donatio propternuptias. Where a donatio propter nuptias has not been acceptedat the time of its execution the subsequent marriage of the doneesmay amount to acceptance.
Where such a donation was expressed in the following terms :—“ We hereby give, endorse, assign, and set over the immovableproperty, hereinafter described to our daughter, Sellatangam, andKanagaratnam (defendant), the bridegroom-elect; *’
After which came the following clause:—“ The immovableproperty shall be taken charge of by our daughter, the saidSellatangam, and bridegroom, Kanagaratnam, from the day ofregistration and consummation of their marriage lawfully.’*
Held, that the deed gave an absolute grant, and that it did notmake registration of the marriage a condition precedent to thetransfer of title under it; the effect of the latter clause toeing todeprive the donees of the right of possession to the propertyimmediately.
Held, further, that where the marriage could not be registeredowing to the refusal of the father (one of the donors) to give hisconsent to it the donors were not entitled to withhold possessionof the property from the donees.
192&
( 204 )
1925.
ArumogamVctUiamma tKanaga-ratnam
' I 'HE plaintiffs in tbis action sued tbe defendant for the can-collation of deed of gift No. 5,111 dated September 11, 1919.
>. Sellatangam, the daughter of the plaintiffs, was married to thedefendant, and on tbe date of the marriage the said deed of gift wasexecuted in their favour.
The deed itself contained the provision that the property wasto be taken in charge of by the donors’ daughter and son-in-lawfrom the day of registration and consummation of their marriage -lawfully.
Thereafter defendant and Sellatangam continued to live ashusband and wife for several years, during which time the husbandrepeatedly requested his father-in-law the first plaintiff to givethe requisite consent to the registration of the marriage, but thefather-in-law put him off on various pretexts.
Sellatangam died on May 28, 1922, and in the administrationof her estate the present lands were included. Objection was thentaken by the plaintiffs that the deed was of no effect inasmuchas the marriage was not registered.
The present action was brought to set the deed aside, and thelearned District Judge gave judgment in favour of the plaintiffs,holding that, as the marriage had not been reigstered, title to theland bad not passed to the defendant.
Hayley (with him Soertsz), for defendant, appellant.—This is anaction by the parents to oust the defendant out of dowried lands.Plaintiffs by deed No. 5,111 of September 11, 1919, conveyed thisamong other lands to defendant and bis wife, their daughter. Shedied on May 28, 1922, leaving the husband and one child as heirsto her estate. Plaintiffs now claim that the deed is of no effectinasmuch as a condition precedent to its taking effect, viz.,registration of the marriage has not taken place.
The real purport of the deed was to make a settlement on themarriage, and the mere fact that registration is mentioned,perhaps by the notary, cannot take away the effect of the deed.It seems to be that, now that the daughter is dead, plaintiffs wish todeprive the defendant of the property. What the deed reallyrequired was a lawful marriage and that has been consummatedand there is a child of that marriage.
Besides, registration is merely an incident in the marriage.The parties have been married according to custom, and that issufficient compliance with the condition in the deed.
Even if registration be a condition precedent, the condition isstill ineffective as non-fulfilment thereof was due to plaintiffs’default. The wife was a minor at the date of the marriage and wasso till her death. The father’s consent was necessary and there isevidence that he repeatedly put off the registration.
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There is an implied covenant in a condition of thiB kind that theother party must do all that is necessary to put the party chargedwith default in a position to fulfil the condition {vide 10 Hal. 479 ;also Welb v. Plummer,1 Shrewsbury v. Gould2).
To put the argument in another way, plaintiffs having originallyprevented registration are now estopped from relying on it andturning it against us. Spencer Bower on Estoppel, p. 214.
In the actual course of things registration takes place after themarriage and hence may even be treated as a condition subsequentwhich is now no longer possible of accomplishment. In any eventfull dominion having been conveyed by the deed and possession ofthe lands also granted to the defendant, if there was such a conditionit must be deemed to have been waived.
Lastly, the action as at present constituted cannot stand. Theplaintiffs in the present action seek to vindicate title to one of thelands in the deed. Therefore the deed itself cannot be set asideas it will affect other lands as well.
Drieberg, K.C. (with him H. H. Bartholomeusz), for plaintiffs,respondents.—When the full terms of the deed are referred to itbecomes quite clear that both defendant and his wife had an interestin getting the condition fulfilled. She does not seem to have beenkeen in getting the marriage registered. If consent was unreason-ably withheld application could have been made to the DistrictJudge. What would appear to have taken place is that the periodof probation was not gone through satisfactorily by the defendant.In 1920 a property appears to have been gifted to the daughteralone with a fidei commissum.
The condition regarding registration is a condition going to theroot of the matter, and even if it lies entirely with the plaintiff,still he can refuse to fulfi the condition and the deed loses itsvalidity.
Besides, there is no acceptance on this deed sufficient in law toconstitute an acceptance. The learned Judge has not dealt withthis matter. Maternal uncle’s acceptance is no acceptance. Theonly acceptance then is marriage. But what marriage ? Aregistered marriage.
[Schneider J.—The operative part gives an unfettered grant.The registration is only the point of time at which possession isgiven.]
On the question of the waiver of the condition it must be noticedthat it is a condition affecting interest in land and therefore cannotbe lightly varied. Certainly not by an oral agreement or by conductimplied from the circumstances of the case.3
1 2B. At A. 746.* B. & A. 487.
3 Ameer Ali s. 92 and 22 Madras 261.
1925.
Arumogam
VaUiammav.Kanaga-ralnam
( 206 )
1925.
ArumogamValliamma v.Kanaga-ratnam
Hayley, in reply.—Possession was to be given on the registration.If this is to be deemed a condition precedent it must be deemedto have been waived as defendant was put in possession of this andSeveral of the other lands soon after the marriage, and has been inpossession since.
September 11, 1925. Schneider J.—
Sellatangam, the daughter of the plaintiffs, was married accordingto Hindu custom to the defendant on September 11, 1919. Onthat day, presumably before the marriage ceremonies were per-■formed, the plaintiffs executed deed No. 5,111 in Tamil. Of threetranslations of it which are in the record, I accept the two whichare both marked D 1. They are almost identical. One is by asworn translator. I quote below from the other translation whichis by the Interpreter Mudaliyar of the lower court. The deedcommences : “ On the 11th day of September, 1919, we (plaintiffs)do hereby give, endorse, assign, and set over the immovable propertyhereinafter described to our daughter, Sellatangam, and Kanaga-ratnam (defendant), the bridegroom-elect.” This is followed bythe description of nine allotments of land immediately after whichcomes the following clause :—
“ The immovable property above described with all plantationsand rights appertaining to them shall be taken chargeof by our daughter, the said Notary KaruwathambySellatangam, and “ bridegroom ” Kadramatamby UdairKanagaratnam from the day of registration andconsummation of their marriage lawfully, and they, theirheirs, and assigns for ever shall possess and enjoy as dowryproperty; and consenting to deliver annexed the deedsaforesaid, together with this, we set our signatures andgranted this deed. The said Notary KaruwathambySeUatangam being a minor, her maternal uncle ArumakamKandappen of Navatkadu on her behalf and KadramatambyUdair Kanagaratnam, have gladly accepted the deed.”
The contention of the plaintiffs is that the deed never took effectfor two reasons. One reason being that the registration of themarriage was a condition precedent to its taking effect. The secondbeing that the donation required acceptance, and there was noacceptance.
The defendant’s contention is that the dominion of the propertiestransferred passed to the transferees immediately upon the executionof the deed, and it was only the right to possess which was postponedtill the registration of the marriage. He also contended that theregistration of the marriage was expressly waived by the plaintiffs,and that-the plaintiffs thereafter delivered possession of the pro-perties to him. .Although no issue was expressly formulated to
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that effect, the defendant appears to have contended in the lowercourt, and did, in fact, contend on appeal that the second plaintiff’srefusal to give his consent to the notice of marriage to the Registrarof Marriages had rendered it impossible to effect a registration ofthe marriage of the defendant and his wife who is now dead.
The learned District Judge held in favour of the first contentionof the plaintiffs, namely, that as the marriage had not been regis-tered title to the land in claim in this action bad not passed to thedefendant and has wife by virtue of deed No. 5,111. He also heldthat the deed was not one which required acceptance inasmuch asit was for valuable consideration.
1926.
SCHNEIDBB
J.
ArumogamVaUiamma v.
Kanaga-
rcUnam
It would be convenient to deal first with the question whetherthe deed required acceptance to render it effectual. I venture todiffer from the learned District Judge on this point. Under theRoman-Dutch law the transaction would be a donatio propternuptias. Speaking of donations generally, Voet says : “ Donationsare therefore not valid unless they are accepted by the donee andthus receive his assent. For, benefits or gifts are not acquired byan unwilling person so that, without acceptance, donations areineffectual for lack of the duorum consensus which donations incommon with other kinds of agreements and alienations require.1”It would, therefore, appear that the donations to the defendantand his wife required acceptance to render it effectual. Voetreferring to a special case of a donation made to donees, who areabsent, in contemplation of their marriage lays down that thesubsequent marriage of the donees would be considered as anacceptance of the donation. He says: “In one case, however,acceptance of the donation is not by our law required for its per-fection ; namely, when a donation is made by means of dotal pactsto a bridegroom or bride who happens to be absent at the> time,inasmuch as, where the marriage with a view to which the donationis made has taken place, acceptance is from the very circumstancesconsidered to have intervened.” Although the evidence in thiscase might be regarded as proving that neither of the donees wasabsent at the time the donation was made, yet, arguing from analogy,the marriage of the donees in this case subsequent to the executionof the deed might be regarded as an acceptance by them. Evenif the subsequent marriage of the defendant and his wife cannot be. regarded as an acceptance of the donation by them, there are othercircumstances in. the case which prove that they accepted thedonation; As regards the defendant himself there is the acceptanceby him on the face of the deed itself. There is also on the face ofthe deed the acceptance on* behalf of the defendant’s fife by hermaternal uncle, as the defendant’s wife was a minor at the time.This is not a valid acceptance, but it at least indicates that she was
1 Voel (de Sampayo's Trans,) X^XXIX. tie; 5. p. IS.
27/16 *
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1925.
SoHNEIDEK
J.
ArumogamVaUiamma v.Ranaga-ratnam
willing to accept the gift. Subsequent to the marriage of the defend-ant and his wife, there is evidence that they entered into possessionof some of the lands which were gifted, and I even accept the evi-dence as proving that they entered into possession of the very landwhich is in dispute in this case. I would hold, therefore, that thedonation was accepted by the defendant and his wife. Accordinglyif it were acceptance only that was necessary to give effect to thedeed 1 would hold that title had passed under the deed to thedefendant and his wife.
I will now proceed to consider the facts in the case. It is wellproved that the defendant and his wife after their marriage inSeptember, 1919, continued to live together as husband and wifein the house of the wife’s parents, the plaintiffs. In January, 1920,they were in possession of a coconut land which was said to havebeen included in the deed of donation. In July, 1920, the defendantasked his father-in-law for possession of the field which is inclaim in this case, and was told that he could obtain the produce ofit from a man called Kangany who was looking after the lands ofhis father-in-law. The defendant applied to the Kangany butreceived a refusal. In September, 1920, a child was born to himand his wife. After the birth of this child the defendant wantedthe marriage registered. He brought the Registrar of Marriages tothe house of the plaintiffs, but his father-in-law, the second plaintiff,said that the marriage should be registered on an auspicious day.The defendant registered the birth of the child on October 25, 1920,naming himself as the father and stating that the parents of thechild were married according to the “ custom of the country.” Theinsistence of the defendant upon the marriage being registered ledto a quarrel between him and the second plaintiff, and he left thehouse. In January, 1921, he went to India to attend some festivalthere and returned in March to his own mother’s house. His wifeand her mother, the first plaintiff, came to him and wanted him togo back to his wife’s house. He refused unless the marriage wouldbe registered. They promised to have it done and he went to thehouse of his parents-in-law. About the month of March, 1921, thedefendant once again brought the Registrar of Marriages to thehouse and both plaintiffs said that registration was not necessaryas the child’s birth had been registered. The defendant appearsto have accepted this statement of the plaintiffs, and it would seemthat a reconciliation of the parties had taken place. In April, 1921,the second plaintiff by deed D 3 donated three allotments of paddyland to his wife, the first plaintiff, subject to the condition that uponher death the defendant’s wife was to succeed to the property.The defendant says that after this date he entered into possession ofall the lands given to him and his wife including the land in claimin this action. In support of his statement he produced the twoletters marked D 4 and D 5. These letters do corroborate bis story

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that from about January, 1922, the downed lands were given over tohim. The document D 8 shows that in October, 1921, the defendantleased one of the downed lands for a term of one year. The disputebetween the parties appears to have begun after the death of thedefendant's wife.. These facts were relied on by the defendantas proving that the plaintiffs waived tbeir right to insist upona registration of the marriage, and that they were thereby estoppedfrom questioning the defendant’s title.
On behalf of the plaintiffs it was submitted that it was a termof the contract between the parties that the marriage should beregistered, and that this term could not be varied by any oral agree-ment or by the conduct of the parties, but that the variation must beby a notarially attested document as the contract related to aninterest in land. 1 am not convinced that this argument is sound,but it is unnecessary to consider it as it does not arise in the view Itake of the facts.
I am of opinion that the deed No. 5,111 (D 1) contains nothingdetracting from the grant of an absolute title made by its operativewords. In the absence of any words in the deed which without anyambiguity detract from the absolute grant in the operative part ofthe deed, the deed must be construed as having operated to passtitle to the donees named in it. That portion of the deed whichrefers to the taking charge of the properties by the donees clearlydoes not deprive the donees of the dominion conveyed by theoperative words. In my opinion the words that the donges shalltake charge ” of the properties “ from the day of the registrationof their marriage ” and that “ their heirs and assigns forever shallpossess as dowry property ” only indicate, and were intended toindicate, the point of time at which the possession of the doneesand their successors was to begin. Those words are wholly inaptto create a condition precedent before a transfer of any interestcould take place under the deed. I am unable to regard themas even creating a condition precedent before the transfer ofthe right of possession would, take place. To my mind the onlyeffect of those words is to deprive the donees of the right which theywould otherwise have had of insisting upon their right of possessionbeing given immediately. Accordingly, I would hold that theplaintiff’s main contention that the deed passed no interest what-ever fails.
There is one reason why the plaintiffs could not succeed in thisaction in resisting the defendant’s claim to the possession of theland in dispute. The provision in the deed that the donees werenot to have possession until their marriage was registered impliedthat the donees on their part would do all that was necessary tohave the marriage-registered, and that the plaintiffs-would, on theother hand, do on their part whatever was necessary for thatpurpose. The marriage of the donees could not be registered under
12(01)29
1925.
Sohltrid&i*
J.
ArumogamVaiUammav.Kanaga*raknam
1925.
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Schneider
J.
ArumogamVatUamma v.Kanaga-ratnam
the Ordinance until due notice of the registration of the marriagehad been "given under the provisions of the Ordinance. Under theprovisions of sections 23, 24, and’25. the defendant’s wife beingunder 21 years of age, the second plaintiff, her father, should have .given his written consent to the marriage. His refusal to give thatconsent made it impossible for the marriage to be registered. Itis true that the defendant or his wife might have applied to theDistrict Judge for obtaining consent to the marriage, but that theyhad that right makes no difference to the fact that the registration ••of the marriage was prevented by the act of the plaintiffs. Thefirst plaintiff appears to have acquiesced in her husband’s refusalto give the necessary consent to the marriage. While on this pointI would say that I do not believe the second plaintiff when he saysthat the defendant’s wife also objected to the registration of themarriage.
Mr. Hayley on behalf of the defendant-appellant cited the followingpassage from the Laws of England1:—
“ If the terms of an agreement show that the parties contem-plated that a certain thing, as to which there is no expresscovenant, would be done before another thing, as towhich there is an express covenant, is done, it is a questionwhether the agreement can be read as comprising a cove-nant to do the foimer. If the two things are so involved.that the parties cannot be supposed to have intended toimpose an obligation to do one without imposing also anobligation to do the other, then there is, by construction, acovenant to do the first thing (1). But otherwise it is notto be assumed that the parties intended to bind themselvesto do the first thing because they entered into the contractin tbe expectation that it would be done, treating it as athing certain to take place and providing only for the eventof its taking place. In such a case there will usually beno covenant implied to do. the first thing, but if it is notdone, then the express covenant to do other thing does notbecome operative.”
In the deed under consideration there was an express provisionthat there should be a registration of the marriage. That expressprovision implied that the plaintiffs, both or either of them, woulddo whatever was necessary to be done on their part to effect theregistration of the marriage. That covenant is implied by theexpress covenant that the marriage should be registered, and as theimplied covenant-was not performed by the plaintiffs the expresscovenant that the marriage should be registered did not becomeoperative. It follows, accordingly, that the provision in the deedfixing the right of possession to commence as from the day of the
110 Halsbury, Art. 832, p. 479.
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registration should be regarded as not having become operativeand that, in the circumstances, the donees are to be regarded ashaving become entitled to the possession of the lands as from thedate of the refusal of the second plaintiff to consent to the marriageof the defendant with Sellatangam.
It is not necessary to deal with all the issues specificially, but Iwould add in regard to issue 7 that for the reasons given in myjudgment the plaintiffs are not entitled to a cancellation of thedeed in question. I, therefore, set aside the decree of the DistrictCourt, and direct that judgment be entered dismissing the plaintiffs’action with costs. The defendant will have his costs of this appeal.
Dalton J.—I agree.
Appeal allowed.
1925.
Schneider
J.
Arumogam
Valliammav.
Kanaga-
ralnam