006-SLLR-SLLR-1982-2-JAYASURIYA-v.-SAMARANAYAKE.pdf
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Sri Lanka Law Reports
<mi) 2 S.L.R.
JAYASURIYA
v.SAMARANAYAKE
COURT OF APPEAL
ATUKORALE, J., AND H.A.G. DE SILVA, J.
C.A. No. 66/81 (F) – D C. COLOMBO No. 1901/SPLJUNE 6, 1982.
Gift – Revocation – Gross ingratitude – Death of plaintiff before litis coruestatio- Action in personam – Right of .heir to be substituted as plaintiff.
-One A.P. Jayasuriya gifted on 16.3.7S a half share of premises No. 25 and 25BWijerama Mawatha, Colombo 7 to his daughter the respondent.
In this action the said A.P. Jayasuriya sought to revoke this deed alleging severalacts of gross ingratitude on the part of his daughter the donee.
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Jayasuriya v. Samaranayake (Aluknrale, J.)
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The Plaint was accepted by Court on 1.8.80 and summons was ordered to beissued, requiring the donee to appear on 24.9.80. Summons was in fact issuedon 2.9.80 returnable on 17.9.80.
On 17.9.80 it was brought to the notice of Court that the plaintiff the said A.P.Jayasuriya had died on 29.8.80. The widow, his heir, the appellant sought to besubstituted as plaintiff.
Held –
That the action for revocation of a deed of gift on the grounds of gross ingratitudewas an action in personam and did not survive the plaintiff.
APPEAL from order of the District Court of Colombo.
Hermdn J.C. Perera for the appellant.
L. de Silva. .S'.A. with Gomin Dayasiri for the respondent
Cur. adv. vult
June 9. 1982.
TUKORALE, J.
The original plaintiff (A.P. Jayasuriya) instituted this action on
8.1980 in the District Court of Colombo against the present respondent,his adopted daughter, to have the deed of gift bearing No. 3789dated 16.3.1975 executed by him in her favour set aside. Upon thisdeed he gifted to her a half share of premises No. 25A and 25B,Wijerama Mawata. Colombo 7 subject to his life interest. The causeof action pleaded in the plaint was that the respondent has sincethe execution of the gift, committed several acts of gross ingratitudetowards him (the donor) which entitled him to obtain a revocationof the gift. In the prayer to the plaint, the original plaintiff prayedfor judgment revoking the said deed of gift. No relief regardingpossession of the gifted premises was asked for in the plaint. Theplaint was accepted by court on 1.8.1980 on which date summonswas ordered to be issued on the respondent requiring her to appearin court on 24.9.1980. The.summons was, however, in fact issuedfrom court on 2.9.1980 made returnable on 17.9.1980. On 17.9.1980it was brought to the notice of court by the plaintiff’s attorney thatthe plaintiff was dead. Admittedly the plaintiff had died on 29.8.1980even before summons had issued from court. On 25.9.1980 therespondent’s proxy was filed in court. Thereafter on 14.11.1980 anapplication to have the present appellant substituted in place of thedeceased plaintiff was filed in court. In her application the appellantaverred that the deceased plaintiff died on 29.8.1980 leaving.an estatewhich required no administration and as his heir his widow, the
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appellant.' <:nd she piayed that she be substituted in his place aslegal representative under s.395 of the Civil Procedure Code. Therespondent objected to this application on two grounds, namely (i)that the plaintiff died before summons was served on her and theright to sue for the revocation of the deed of gift on the ground ofgross ingratitude being a right that was personal to the plaintiff, theright did not survive on the plaintiffs death; and (ii) that in anyevent the plaintiff died leaving an estate of administrable value andas sych the appellant, not being the executor or administrator, wasnot a legal representative within the meaning of s.394(2) and wasnot entitled to be substituted. After inquiry the learned District Judgeupheld both objections and refused the appellant’s application forsubstitution. On the first objection he held that the action was anaction in personam, that summons had not been served on therespondent at the time of the plaintiffs death, that as such the actionhad not, at the time of the plaintiffs death, reached the stage oflitis contestatio and that therefore the right to sue on the cause ofaction did not survive to the appellant. It is this finding of thelearned Judge that has been sought to be challenged in this appeal.
Learned counsel for the appellant conceded before us that at thetime of the plaintiffs death the stage of litis contestatio had notbeen, reached in the action. Nor did he seriously challenge that theaction was an action in personam and that ordinarily on the principlethat a personal action dies with the death of the plaintiff, the rightto sue on the cause of action would not survive . But he contendedthat the instant action though in its nature a' personal action acquiredthe character of an action in rem the moment it was instituted incourt. In support of this .contention he relied on the following passagefrom Maasdorp’s Institutes .of South African Law, Vol. Ill Law ofObligations – (7th Edition): p 60:
“The right to claim revocation belongs to the donor alone anddoes not pass to his estate: so much so that the donation isnot liable to be revoked even though the donee may havekilled the donor, unless the donor has, between the receipt ofthe mortal injury and his death, expressed his intention to revoke.”
Relying on this passage learned counsel for the appellant submittedthat in the instant case the donor (the plaintiff) has by institutingthis action during his lifetime clearly indicated his intention to revokethe gift and as such the right to sue on the cause of action passeson his death to his estate and thus the appellant as the widow isentitled, to he substitute'1 In place of the deceased donor.
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Jayasuriya v. Sqmaranayake (Atukorale, J.)
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I do not think that the above passage supports the contention oflearned counsel for the appellant. It seems to me that what thepassage means is that the right to claim a revocation vests in thedonor alone and does not pass on his death to his estate. But wherethe donee causes the death of the donor, the right of revocationwould pass to the estate only if the donor has between the receiptof the fatal injury and his death expressed his intention to revokethe gift. Thus, in my view, according to this passage the right ofrevocation of a deed of gift will not pass to the estate of the donoron his death, irrespective of the manner of his death. But if he diesat the hands of the donee the right will pass to his estate providedthat during the said period he expressed his intention of revokingthe gift. The above passage therefore has, in my opinion, no applicationto the instant case where the ground on which the donor has soughtto revoke the gift is gross ingratitude. The contention of learnedcounsel for the appellant fails and accordingly the appeal is dismissedwith costs.
A.G. DE SILVA, J. – I agree.Appeal dismissed