144-NLR-NLR-V-22-JAYASINGHE-et-al.-v.-JAYASUNDERA.pdf
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Present: Ennis J. and Schneider A.J.
1921.
JAYASINGHE et al. v, JAYASUNDERA.
362—D. C. Guile,15,510.
Gift by husband—Fraud on the community—Action by administrator ofwife for cancellation of deed—Personal action.
An action for cancellation of a deed of gift by a husband on theground that it was a fraud on the community does not lie with theadministrator of the estate of the wife. “ Such an action mighthave been open to the wife herself as a personal action, or possiblyto her heirs after her death as a personal action.”
T
HE facts are set out in the judgment of the District Judge(L. W. C. Schrader, Esq.): —
Don David Jayasundera and his wifo Egodage Gimarah weremarried together in community of property and died on May 6,1914,and November 25, 1912, respectively, leaving four sons and twodaughters.
1 (1909)35 T. L. R. 478.
1 (2871) L. R. Q. B. 361.
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The sons ere Eporis (first), Abraham (second), David (the original-third defendant), and Soyadoris; and the daughters are the plaintiff’swife (added second plaintiff) and another, who married the CustomsArachchi
By a series of deeds Don David bestowed the property of thecommunity upon the children, except the plaintiffs. The lattermarried on November 26, 1891, and first plaintiff had been for thirtyyears a clerk in a merchant’s office. First plaintiff says that his fatherand mother-in-law were worth Rs. 20,000, and oomplains that a deedNo. 12,415 of March 4,1912 (F 4), whereby Don liavid made a gift of ahalf share of GalagaWakanda, a land of 4 acres 3 roods and 16 perches,was a fraud on the community, and ought to be set aside.
The issues are taken in order of apparent logical necessity.Was there consideration for the deed, and, if so, oan it be set aside ?
There was no consideration, it is a pure gift.
Next to take the issue “ Was there a distribution of the commonestate as set out in page 8 of the answer ?" This is a question of fact.
There was, therefore, a distribution of the common estate, but it is.also dear that in the last year of GKmarah**life, property to the value ofRs. 1,500 was alienated by Juwanis to his four sons ignoring thedaughters.
Can the deed be set aside except in respect of half of the property.That issue is admittedly to be answered in the.negative. The wife orher heirs can claim to have a deed revoked so far as she has been there-by defrauded. {XIII. N. Lt page iff.')
There is no evidence in the case manifesting a clear intent onthe part of the donor to avoid the community and defraud the otherspouse. There were, for instance, no differences between the plaintiffsand their parents, Do motive can be discovered for his wishing todeprive the plaintiffs of their just share. His argument can only havebeen one. The plaintiffs have been married thirty years, they aregetting on very well? they were not in need of land, agriculture is nottheir vocation, I must provide for my sons whose livelihood dependsupon it, and who have so far received only Bs. 500 worth each. I mustmake tip their portions to be at least equal to their sisters. So all theremaining property must be divided betwtffih them.
I find, as a matter of fact, oertain small lands left, but they aredoubtfully included in the list of this estate, and particulars of themare not all available.
•«•.•4• ,••••»
I find, therefore, that the estate has practically been exhausted bydeeds, and there is nothing for plaintiffs to inherit fromthe community.
Now fraud on the community seems to be contemplated, wherethe husband, at a time of his wife’s illness and proximity to death,disposes of her share of the property by donating to his own relations(to the exclusion of hers)or even to an outrider (passage from Voet citedat page 382). It is impossible to hold, it seems to me, that this passagecontemplates the case of donations and the heirs wi thin the community.Still it will obviouriy be a fraud if the wife intended her property todevolve on the children equally, and the husband, without her know-ledge daring her illness, gifted it away to some heirs to the exclusion ofothers. I could have no difficulty in holding that this was a fraud onthe community.
1921.
Jayaainghe
e.
Jay asunder a
1921.
Jayaainghe.
v.
Jayaaundera
( 496 )
13. But' here the deed exeouted in March, 1912, was some monthsbefore the death of the wife. There is nothing to show that she wasailing then, or ignorant of the transaction. It is a d jdlike all the others.She actively took part in none. The old lady was lowever very old—80 years, and was ill sometime before her death. There is nothing toshow that she approved the gift. And it is oeribt in that the deedsexeouted on November 1, 1912 (five of them), with l twenty-six daysof her death, were exeouted with no other intention <• nan to anticipateher approaohing dissolution and prevent the divisio, of the propertyat law. The question is, whether the. deed of March, 1912, had thesame objeot in view, and, if so, whether it was a fra’d on the com-munity, that is, on the wife or her heirs. If there was a fraud it wasdireoted against both the daughters, not plaintiffs only, and it is there-fore remarkable that the plaintiff did not get the daughter of theCustoms Offioer to join the case. He took action in the representativecharacter of Gimarah’s administrator, But I am bound to say that theevidence, as a whole, shows that the four sons who had already beenprovided for with Rs. 6U0 worth of property eaoh for a long time,and which had been much appreciated, prevailed on their father toexecute the deed in March for Rs. 1,000 in their favour, and the smallremaining property they hurriedly had distributed shortly at the lastmoment before Gimarah’s death. I cannot, however, see that therewas anything unjust about it. The portions are fairly equal. Thoughthe sons had portions of Rs. 500 in land long ago, plaintiffs had Rs. 500in cash, and another Rs. -500 in cash and jewellery. And there was*besides, oertainly the other perquisites mentioned before amounting toabout Rs. 500 more. This is a complaint of one heir against others.I see no dear evidence of intent to defraud. I dismiss the action, withcosts.
J. G. Pereira (with him Samarawickrema and Crooe-Dabrera),for plaintiff, appellant.
E. W. Jayawardene (with him J. S. Jayawardene), for defendantsrespondents.
July 15,1921. Enins J.—
This was an action by the administrator of the estate of oneGimara for the cancellation of a deed of gift by Gimara’B husbandin favour of three of his sons, the first, second, and third defendantsin the case. It appears that at the trial of the action the wife of theadministrator was added as a plaintiff, being one of the heirs ofGimara. The learned Judge dismissed the action, and the plaintiffappeals. It appears that the petition of appeal is somewhat vagueas to the parties appealing. The caption shows an appeal by theadministrator only, while some ..clauses in the petition of appeal.seem to indicate that it was meant to be an appeal by both theplaintiffs. Ho we ver, it transpires that the added plaintiff hadpeverfiled a proxy in the case, so that the appeal can be regarded as anappeal by the administrator only. The action was one for thecancellation of the deed on the ground, to use the expression of the
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Roman-Dutch Jurist, that it was a “fraud on the community.”Such an action fright have been open to Gimara herself as a personalaction, or possibly to her heirs after her death as a personal action.But it is not an action which would lie with the administrator ofthe estate of Qimara. In these circumstances I would dimiss theappeal, with^ctebs.
Sohnexdee &.J.—I agree.1921.
Emus J.Jayaainghev.
Jay asunder a
Appeal dismissed♦