PARAMPALAM v. ARUNACHALAM

055-NLR-NLR-V-29-PARAMPALAM-v.-ARUNACHALAM.pdf


( .289 )
Present: Garvin and Dolton JJPABAMPALAM v. ARUNACHALAM.166—D. G. Colombo, 20,181.
Donation—Husband and wife—Gift of promissory note—Consideration—Donatio mortis causa—Due execution—Ordinance No. 5 of 1853.
Where a persongave hiswife, withthe’ intention ofproviding
for her after his death, a document in the following terms: —
OndemandI,theundersignedFarampalam Arunachalamof
do hereby promise to pay to my wife Bosamma
Annam Arunachalam or order the sum of Bs. 10,000towards her affection.
(Signed) P. Arunachalah
Held, that the wife was not entitled to claim the money fromthe estate of her husband—
PerGabvinJ.,onthegroundthatthe document,beinga
promissory note, was not enforceable for want of consideration:
PerDaltonJ.,onthegroundthatthe document,beinga
donatio mortis causa, was iuoperativc for want of due execution..
A. PPEAL from an order of the District Judge of Colombo.
The defendant is the widow of Parampalam Arunachalamand administratrix of his intestate estate. In an account filedby her as administratrix the defendant showed as a liability of theestate a sum of Rs. 10,000 payable upon a promissory note made byher husband in her favour. The exact terms in which the documentwas drawn are set out in the head-note. The plaintiff institutedthe present action for a declaration that the defendant was notentitled to recover any money from the estate upon the promissorynote in question.
The learned District Judge held that the defendant was entitledto recover on the footing of a promise to pay made to her by herhusband.
Haylcy, K.C. (with Canakaratne), for appellant.—On the questionof consideration English law. applies (Ordinance No. 5 of 1852,s. 2). The test is whether the defendant’s rights and liabilitiesare in any way affected by the note (Palaniappa Chetty v. de Mel ’).
[Garyix J.—The note was subsidiary to the main object, whichwas to make provision for her after his death.]
» 16 N. L. if. 242.
10
( 290 )
1927.
Parampalamv.
Arunachcdam
Subsidiary in one way, but the note contained the whole contract.[Garvin J.—The statement on the document, that it is given“ for affection,” negatives consideration. In the face of thatstatement is this a promissory note?]
The document is within the definition of a promissory note, butit may not be enforceable for want of consideration. Supposingthere was consideration in fact, a statement in the note that therewas no consideration will not render it invalid.
English law must be resorted to both to determine whetherthere is a promissory note and to determine whether it is enforceable.
The whole contract is contained in the note. Therefore the onlyaction that lies is an action on the note.
[Garvin J.—Suppose this document is merely put in as evidenceof a promise?]
Here there is no contract at all outside this note. There is noevidence of a loan or sale or other contract as evidence of whichthe document may be produced. It is produced as the wholecontract, and not as corroborative evidence of a contract. Thewhole action must turn on the note, and the question as to itsvalidity must be determined by English law.
If the transaction be looked upon as a gift with immediatepossession, all that the donee gets is a piece of paper; if withoutpossession, there is a donatio mortis cavsa% but the document isobnoxious to Ordinance No. 7 of 1840. A donatio mortis causai*esembles a legacy (Voet XXXIX. 6, 4) and requires the formali-ties necessary for a will (Van der Keesel, ss. 492, 493: Oliphantv. Grootboom x; Nathan, vol. IIpp. 166-167), Instead of a willthe deceased has executed a note.
H. V, Perera (with Groos Da Brera), for respondent.—English lawdoes not apply. The action is not on the note. Where the rightsinvolved in the action do not depend on the rights and obligationsarising on the note the English law does not apply. The connectionreferred to in section 2 of Ordinance No. 5 of 1852 is a connectionin matter of legal principle, not a merely historical or physicalconnection.
The capacity of a party to bind himself by a promissory note isdetermined by Roman-Dutch law (£. C. 236/D. C, Galle, 23,146(S. C. Minutes of November 21, 1927) ). In Patheriya v. Katchohamy 2it was held that where money is lent on a note an action can bebraught for money lent though the note is bad. The questionwhether in this case a married woman could sue alone was deter-mined by Roman-Dutch law.
i 3 E.D. C. 11.
2 5 C. L. Rec. 83.
( 291 )
It is a question whether the test* in Palaniappa Chatty v. de Mel(supra) has been rightly applied in that case. In any event theapplication of that test in this case does not bring it under theOrdinance of 1852.
The mere form of the words not make the document apromissory note. There must be the intention to make a promissorynote (Doe v. Chamberlaine *). The statement that the note is given*4 towards affection " negatives the intention to make a promissorynote. The document is given purely for the purpose of evidenceof a promise to give money.
Affection and the necessity for making provision for the wifeform the motive for the promise to give Its. 10,000. Ihe right toclaim that sum arises immediately the promise is made. TheRoman-Dutch law applies |&s to causa.
The presumption is that this is not a donatio mortis causa. Adonatio mortis causa requires a clear expression that the gift is inexpectation of death (Walter Pereira, p. 602).
[Dalton J.—If you look at the whole transaction—the documentand the surrounding circumstances—there is a donatio mortis causa;if at the document alone, there is a promissory note.]
There is no expression by the donor that there is a gift incontemplation of death. In the absence of such an expression thereis no donatio mortis causa, although the surrounding circumstancesshow an intention to make a donatio mortis causa. The presumptionis in favour of a gift inter vivos (Voet XXXIX. 6, s$. I, 2).
The writing is evidence of a promise. If may amount to more—a promissory note; but it is none the less evidence of a promise.
Where the action is on the promise, the document is merelyevidence, and non-essential evidence. It may be the onlyevidence.
If donatio includes a promise, this is a donatio inter vivos. Adonatio mortis causa requires some express mention of death andan expression of intention to revoke. These elements cannot beimported from the circumstances. Where there is no indication ofrevocability, even though the benefit is to be enjoyed after death,there is a donatio inter vivos (2 Nathan, s. 1083).
This is not a legacy, because it is expressed to be payable ondemand and because it has been accepted.
Our law does not require a donatio mortis causa to be executedin the same way as a will. The Common law requirement is a ruleof evidence, and Roman-Dutch law rules of evidence are not partof our law. A transaction giving rise to rights can be proved inany way unless statutory provisions require a particular form.Ordinance No. 7 of 1840 is a consolidating Ordinance. It does notmention donationes mortis causa.
1927.
Parampalamv.
Arttnacfndam
1 15 M.& W. 15.
( 292 )
1927. Hayley, E.C., in reply, cited Balfour u. Balfour l; Grot. 3t 2t 32;
Parampalam Meniica u. Appuhamy a; 41 Scotch L. R. 9*7; 9 Nathan 167, 8. 1997.
v,Arunachalam December 10, 1927. Garvin J.—
The defendant is the widow of Parampalam Arunachalam andthe administratrix of his intestate estate. It is admitted that inaccordance with the rules of intestate succession of the Thesawalamaishe is entitled to no share of her husband's estate, which devolvesupon the plaintiff and certain others. In a certain account filedby her as administratrix the defendant showed as a liability of theestate a sum of Rs. 10,000 payable upon a “ Promissory note datedAugust 28, 1925, in favour of Rosamma Annain Arunachalnm (i.c.,the defendant) presently of* Colombo." The plaintiff denies theright of the defendant to pay herself this amount out of the estateof the deceased, and he accordingly instituted the present actionpraying for a declaration “ that the defendant in her personalcapacity is not entitled to recover any money from the estate uponthe promissory note in question " and “ that the said item beexpunged from the inventory filed in the testamentary case. "
Among other objections to the right of the defendant to paymentof this sum of Rs. 10,000 the plaintiff pleaded that the documentreferred to was a forgery. His counsel, however, stated at thetrial that he would lead no evidence to establish that allegation,and the District Judge held against the plaintiff on the issue offorgery. There is and never was the slightest reason to doubtthe authenticity of the document.
The learned District Judge held that the defendant was entitledto recover on the footing of a promise to pay made to her by herhusband based on “ causa " though the " causa " did not amountto consideration under the English law.
From this judgment the plaintiff appeals. The only evidenceadduced in the case consists of that of the defendant, and her evidenceis not challenged. It is established by her evidence that for sometime before his death the deceased was the Government Apothecarystationed at Rangalla. On August 19, 1925, he went to Teldeniya,where there is a hospital, to consult the doctor in charge. Hereturned and told his wife that he had been asked to enter hospitalas he was seriously ill. He was a malarial subject and badbeen suffering from an affection of the heart for some years previously.
On August 28, at Rangalla, he executed the document Dl, whichis the foundation of the defendant’s claim. Before he did so hesent for a notary, but no notary could be found. It is evident thathe sent for a notary so that he might make his last will. As thiswas rendered impossible he made and granted the document Dl tohis wife, as she says, “ to provide for her after his death." On the* {1919) 2 K. B. 571.2 1 Br. 252.
( 293 )
same day he made and executed the document D3 in favour of his 1827felder brother Elanthairayagam, to whom he was attached. Panxm- <jabvinJi
palam was brought down to Colombo. He entered, the General *
Hospital on September 1 and died on September 8. He neither made ParwWtatunnor sought to make a last will presumably because, he believed Arunachalamthat by the documents D1 and D3 he had made provision for theonly two persons—his wife and his elder brother—for whom hewished to provide.
The document D1 runs as follows: —
Rarigatla,
Rs. 10,000.. August 28, 1925.
On demand I, the undersigned Parampalam Arunachalam of Sandi-ruppay, now at Rangalla, do hereby promise to pay to my wifeRosamma Annam Arunachalam of the same place or order the sum ofRs. 10,000 (Rupees ten thousand) towards her affection.
(Signed) P. Arunachalam.
The document bears a 6-cent stamp, which is the amount ofduty payable by law on a promissory note. The document D3in favour of Elanthairayagam is in the same form and is similarlystamped.
To use the defendant’s own words, *' he made a note to providefor me (her) after his death.” Since circumstances frustrated hisintention to make provision for her by last will he took the alternativecourse of seeking to create a liability against himself by giving hiswife a promissory note for Rs. 10,000. The document is in forma promissory note. It is stamped as a promissory note and isexpressed to be payable on demand. Every undertaking in writingto pay a sum of money is not necessarily a promissory note, butwhere the intention of the maker of the document is manifestlythat it should be and take effect as a promissory note the documentis a promissory note. Apart entirely from the form of the documentthere is in the words ” or order ” employed by the maker of thepromise an indication that he contemplated the negotiation ofthe note. It is not easy to determine the exact meaning of theconcluding words “ towards her affection.” But- assuming thatthey imply that ” affection ” was the motive for the making ofthe promise, the document still remains a promissory note thoughthey might possibly be regarded as some evidence of notice to anindorsee that the giving of the note was influenced by affection.
This is an instance of a gift of a promissory note; and it appearsto be well-settled law in England that the donee of a promissorynote made by the donor, in his favour may not enforce thenote against the donor (Holliday v. Atkinson *). See also hi reLeaperUnder the English law affection is not a sufficient consider-ation to support a simple promise, and it is admitted that this promisewas voluntarily and proceeded purely from the munificence of the1 {1826) 5 B C. 502.2 {1916) 1 Ch. 579.
( 294 )
1927,maker of the promise. By section 2 of Ordinance No. 5 of 1852
GarvinJ. ^ is provided that "the law to be administered in this Colony in
respect of all contracts and questions arising …. upon or
Parampatam re]a|;jDg0f exchange, promissory notes and cheques, and in
ArmachaUm respect of all matters connected with any such instrument shall hethe same in respect of the said matter as would be administered inEngland in the like case at the corresponding period if thecontract had been entered into or if the act in respect of which anysuch question shall have arisen had been done in England ….Inasmuch as the only contract between the parties is that whichis embodied in the document Dl, and that is a promissory note, thequestion which has arisen in respect of it must be determined inaccordance with the law of England. If authority be needed for 'this proposition there is the local case of Latchimi v. Jamiesonwhere the payee of a promissory note made and granted voluntarilyand without consideration failed in an action against the makerthough, as observed by Lascelles C.J., " different considerationswould have arisen if the defendant's liability had been determinableby the Roman-Dutch law.” Under that system a promise to giveunaccompanied by delivery is none the less a donation and causanot amounting to consideration under the English law is sufficientto support a promise. I am not unmindful of the anomaly thatthat which would have been a good donatio had it been differentlymanifested or had it related to specific movables other than moneyshould be unenforceable because it is manifested in the form ofa promissory note within the meaning of the English act and relatesto a sum certain in money. In a country where two systems oflaw in some respects fundamentally different have to be adminis-tered side by side anomalies must arise. But the writing is theonly evidence of the contract and the intention of the maker mustbe gathered from its language. Where as in this instance it is inform and in substance a promissory note whether it is enforceablemust be determined with reference to the English law. The appellantis, I think, entitled to the declaration he claims.
The second point taken by the appellant is that if the documentcan be regarded as a promise in writing which does not amount toa promissory note it is a donatio mortis causa and inoperative assuch for want of due execution. The conclusion I have arrivedat on the first point is decisive of the matter and it is unnecessarytherefore to consider this submission. I find great difficulty intreating this as a donatio mortis causa. If regard be paid to thesurrounding circumstances it would seem that it was the absenceof a notary and the inability to procure the due execution whichis essential to the validity of a disposition by a person to take effectafter his death that induced Arunachalam to attempt to create an
1 (1913) 16 N. L. R. 287.
( 295 )
immediate liability binding on him and on his estate if it remainedundischarged at his death. His object was to make provision forhis wife, and since the inability to procure the presence of a notaryfrustrated his intention to achieve this object by a valid dispositionto take effect at his death” he took the alternative course of makinga promissory note payable on demand and delivering it to his wife.
There is no evidence that the deceased expressly stated that thepromissory note was not to be enforced if he did not die or that hesaid anything making it contingent upon his death. Nor am Isatisfied that had such evidence been available it would have beenadmissible to rebut the intention clearly expressed in the writingthat the note was to be paid on demand. (See section 92 of theEvidence Ordinance, 1895.) In Woodbridge v. Spooner,* which wasan action against the executrix on a promissory note made by thetestatrix, it was held that where the note on the face of it wagexpressed to be payable on demand parol evidence is not availableto show that at the time of making it the intention was that it shouldnot be payable till after the death of the maker.
But as I have observed earlier, the opinion 1 hove formed on thefirst of the two points urged by the appellant is decisive of the.case and it is unnecessary to pursue the consideration of this aspectof the case further.
The plaintiff is entitled to the declaration he has prayed for.He is also entitled to-his costs of action am) of this appeal. But Ithink that all the^costs of this action should be borne by the estate.The whole of this litigation has- resulted from the action of thedeceased, who there is not the slightest doubt intended that thispromissory note should be paid as a personal liability which he hadincurred. In showing it as a debt the administratrix was actingperfectly bona fide in the belief that it was a liability of the estate.Accordingly it is ordered that all the costs of both parties to thisaction be paid out of the estate of the deceased ParampalamArunachalam.
Dalton J.—
Parampalam Arunachalam, an apothecary of Jaffna, on August28, 1925, signed a document (marked D1 in the record) which wasin the following form and handed it to his wife: —
6 cent stampBangalla,
cancelled.August 28, 1925.
Rs. 10,000.
On demand I, the undersigned Parampalam Arunachalam of Sandi-rupny, now at Bangalla, do hereby promise to pay to my wifeRosamma Annam Arunachalam of the same place or order the sum ofRupees ten thousand (Rs. 10,000) towards her affection.
(Signed) P. Arunachalam.
1 (1819) 3 B.<b Aid. 233.
1927.
Garvin J.
Parampalam
v.
Arunachalam
29/23
iwnr.
Dalton J.
Parampalam
v.
Arunachalam
( 296 )
He was very ill at the time, and on September 8 he died intestate.His widow obtained a grant of letters of administration of his estateand set out in the inventory of assets and liabilities the followingitem as a liability: —
3;- Promissory note dated August 28, 1925, in favour of RosammaAnnam Arunachalam of Bengalis, presently of Colombo, Rs. 10,000.
The plaintiff in this action, who is a nephew and' an heir of thedeceased; brought this action for a declaration that the defendantin her personal capacity is not entitled to recover any money fromthe estate upon the promissory, note in question and that thisitem of liability be expunged from the inventory. It is agreed thatthe parties are governed by the Thesawalamai, and that thewidow would not be entitled to anything from the estate of herhusband on an intestacy as the property of the deceased wasproperty' that had been inherited by him or acquired before hismarriage. The marriage had taken place in 1919, and so far as canbe gathered from the record, there are no children of the marriagesurviving.
The widow, both in her personal and representative capacity,was defendant in the action. The material part of her defence wasset out in the following paragraphs of her answer: —
. . . . the defendant states that on or about August 28, 1925,the said P. Arunachalam, who was, the husband of this defendaut,settled a sum of Rs. 10,000 on the defendant personally7, as a gift orgrant, ns he lawfully might under the Thesawalamai, to which he wassubject, and he accordingly made and delivered to the defendant thesaid writing promising to pay to the defendant on demand the saidsum of Rs. 10',000.
(e) The said document tautamounts to a gift or settlement asaforesaid, or at least as evidence of such gift or settlement or securitythereof.
There was a question raised as to the document being a forgery,but this was not pursued by the plaintiff. The issues relative tothe questions argued on the appeal were the following:—
Is the document D1 invalid for want of consideration?
Can defendant claim any money on the document?
In any event is defendant entitled to the sum of Rs. 10,000
by way of gift or settlement or promise of gift or settle-ment?
Is D1 a gift or settlement or promise of a gift or settlement?
It is not quite clear what was meant to be included in the lasttwo issues, but at any rate it is clear, from the argument whichtook place in the lower court upon the issues, that it was urgedfor the defendant, inter alia, that the document D1 was a donationtortis causa, and as such must be evidenced as in the case of atestamentary disposition.
( 297 )
The only witness called was the defendant herself, the documentaryevidence put in being the document Dl, another document (DO)in exactly the same form executed by the deceased at the sametime in favour of his brother for Rs. 3,000, and the inventory of theestate of the deceased (D2) in the testamentary proceedings.
In dealing with the second issue the trial Judge comes to theconclusion, in view of South African decisions, that under theCommon law the promise of the deceased is enforceable, and thatthe defendant was not precluded by the provisions of section 2 ofOrdinance No. 5 of 1852, from suing for the recovery of the sumas on a simple contract debt since she did not rely upon Dl asa' promissory note at all but used it as evidence of the contract.He then concludes by stating that he “ accordingly ” answersissue (2) in the negative and issue (3) in the affirmative and dismissesplaintiff's action. He unfortunately has stopped there and notdecided the further questions raised, and the plaintiff has appealedfrom his decision.
After heaving the argument addressed to this Court on behaif ofthe parties, it seems to me that the case is conclusively settledon the question as to whether this promise or gift was a donatiomortis causa. Although it is often not an easy matter to distinguishbetween donations mortis causa and inter' vivost taking- the veryclear and precise evidence of the defendant herself, and havingregard to all the circumstances to which she deposes surroundingthe completion and delivery of this document to her, there is notthe least doubt in my mind as to what the intention of the parties,i.e.t the husband and wife, was when the document Dl was madeand handed to the defendant. The husband in August was seriouslyill with malaria and heart trouble and it was clear to him that itwas advisable for him to make a will. He knew his case was serious,for he told his wife so. He actually sent for a notary, whose presencewas necessary, but one could not be obtained at the time. In thisdifficulty he, on August 28, signed the document Dl and gave itto his wife. He clearly thought that in the event of his deathit would do all that a will could do for his wife. She says " he toldme that he was writing Dl to provide for me. He executed thisdocument so that I may get this money after his death. If not forthis document I would not have got anything from the estate,because bis property was inherited property and property acquiredbefore his marriage. He sent for a notary at Rangalla, but hecould not get one, and he made a note to provide for me after hisdeath."
She also adds that from September 1 to the date of his deathhe was daily getting worse, and that he did not think of writing awill then as he was very ill.
m*.
Daltok J.
Parampalaui
V.
Arunachalam
( 298 )
1927* It is clear that the desire of the deceased, in view of his seriousDalton J» illness, was to make a wiH and provide for his wife in the event—— of his death. The necessity of the presence of a notary at thePatampabiffi |>|me prevented that being done, so he gave her this note. AlthoughArttoadttiiam there is no direct evidence on the point, from the writing there is goodreason to think that he even wrote it out himself. It might beargued that from these circumstances, the deceased being presumedto know the requirements of the law, that here was proof ofan intention to make an immediate gift, a donatio inter vivos. Fromall the attendant circumstances, however, I am quite satisfied thatthere was no such intention. I do not think there is anything inthe words “ on demand ” used in the document under the circum-stances. here which in any way is contrary to that conclusion.
With regard to the law on the subject, it has been suggested that,inasmuch as here there is only a promissory note, a promise to giveon demand, there is no donation, but a donation is not only thefree and lawful giving of a thing, but also the promising of a thing,
“ Just as we donate by giving or delivering, so also we donate bypromising, and therefore both the giving causa donationisand the promising causa donationis are equally donations/’
. (Voet XXXIX. 5, 2.)
Any difficulty also that may have arisen from the provisions of theCommon law prohibiting, gifts between husband and wife is nowdone away with by the provision of section 13 of the MatrimonialRights and Inheritance Ordinance, 1876. It would therefore seemthat in Ceylon there is no difficulty to-day in applying the lawgoverning donations, whether inter vivos or mortis causa, to donationsbetween spouses (see Voet XXIXf 6, $). No case arises here of a gift,ineffectual ab initio, being confirmed by or taking effect upon thedeath of the donor without taking any steps to revoke the donation(see Voet XXIX,6). The parties here happened to be governed
by the Thesawalamai, which also permits of donations betweenhusband and wife, but no suggestion has been put forward that ifsuch donations are made they are not governed by the ordinary lawof the land in respect of donations.
• A donatio mortis causa is stated to be—
“ That which is made in contemplation of death without anylegal compulsion, the intention of the donor being to preferhimself to the donee, and the donee to his own heir, andit is requisite that in making the donation some mentionshould be made of death and of restoration.” (VoetXXXIX. d, I.)
He goes on to point out that the mere existence of imminentdanger of death does not of itself make the donation one mortiscausa, but contemplation of death must be expressed in words andnot merely entertained in the mind.
( 299 )
The question of revooability or restoration is often a difficult one1927,
to decide, and again it seems to me regard must be bad to all theJ,
surrounding circumstances. A donation may be made with definite —mention of death and, as Voet says, mortis causa, but with a provision *>ara,^Pa*awtthat it shall not be revocable. Such must then be taken to be a Arunachalamdonatio inter vivos. The case of D. G. Matara} No. 36,320 is onein which all the requisites of a gift mortis causa would appear to bepresent, except this one, the language of the deed being inconsistentwith any intention that the gift should be revocable or should notoperate in the event of the donor’s recovery.
The requisites have also been concisely set out. in the case ofOliphant v. Grootboom 2 cited in the course of the argument. Theyare revooability, the death of the donor as a condition of the donation,mention of the death of the donor in the donation, and possessionto be given to the donee. It is equally clear, however, from theauthorities, that in applying these requisites to the facts of eachcase, when it has to be decided whether, for instance, there is anydonation at all, or whether it is a case of donatio mortis causa orinter vivos, the question of intention is the governing factor.
To ascertain the intention of the parties however, as pointed outby De Yilliers C.J. in Van Wyk v. Van Wyk’s Executors,* the termsof every gift must be looked at. It has been urged here for thedefendant that inasmuch as here the note purports to be payableon demand, there is not only no element of revooability about thegift, but that it shows the intention was that the gift was to takeeffect immediately. Do the circumstances, attendant upon thedonation support this argument? The evidence of the defendantto my mind puts it beyond doubt that the deceased sought to dowhat he thought a will would do and no more, and that the note
i°.
was intended to provide for her after his death in the event of hisdeath from the illness from which he was then suffering. It wasto all intents and purposes a testamentary disposition of part ofliis property (as also was the note D3 handed to his brother), andI have come to the conclusion that it was given for that purposealone and for no other purpose. It was conditional on the deathof the donor and it was revocable, inasmuch as it was intended totake effect only in the event of his death. Having regard to herevidence, it seems to me that it was not intended to take effect inthe event of his recovery, in other words, that, if he recovered, itwas fully open to him to recall it. Had deceased recovered fromhis illness I do not see how under the circumstances here (even ifsection 2 of Ordinance No. 5 of 1852 was not on the statute book) itcould seriously be argued that the defendant could seek to put thenote in suit to recover the Rs. 10,000 in a Court of law.
(1873) Grenier's Reports 143.8 3 E. D. C. 11.
3 5 S. C. (Juki) 1.
ftarl
Daltok J.
Parampalam■ *•
Arunackalam
( 800 )
It was further urged, however, that in the document D1 there isno mention of' the death of the donor,, neither is there any explicitreference to His death. That, however, the donor contemplateddeath is clear from the facts deposed to by the defendant, and itwas this which mpved him in the words of his wife, in this way toenable her to 11 get the money after his death/* in order “ to providefor me after His death/' Having regard to her evidence, can it bedoubled that he definitely expressed his contemplation of death ?There is, it is true, no mention of illness or death in the document,but having regard to all the circumstances attendant upon itsexecution and delivery to her, it is impossible in my opinion tocome to any other conclusion that he definitely gave expressionto what' he contemplated might come to pass as a result of hisillness. All the other elements being present, it seem6 to me thatthis evidence supplies all that is requisite on this question to bringthe donation within the class of gifts contended for by the appellant.
I am unable to bring it within the category oi gifts inter vivos, madeon the point of death. It is undoubtedly a very hard case, but Iam unable, for the reasons set out aboye, to say that this is not adonatio mortis causa. There is no doubt in my mind upon the point.Under those circumstances such donations in the words of Voet(XXXIX.. 6, 4) require the presence of at least five witnesses orthe formality of a notary and two witnesses. In other words theyrequire to be executed as a testamentary disposition. These are alsothe requirements to-day in Ceylon under section 3 of Ordinance No. 7of 1840 in the case of wills. It is true that there is no mentionin that Ordinance of donations mortis causa, but I am not able togather from that absence any intention of the Legislature to abrogatethe requirements of the Common law in respect of donations towhich I have referred, Solomon J.A. in Meyer et al, v. Rudolph'sExecutors 1 . deals with a somewhat similar point, arising .frorhlegislation in Cape Colony and Natal.
For these reasons, with respect to issues (4) and (5), I come to theconclusion that the Rs. 10,000 was a donatio mortis causa, and inthe absence of any legal proof of such donation, the defendant isnot entitled to the sum. This is conclusive of the matter in dispute,and it is not necessary, therefore, to consider the further questionsraised upon the appeal or the other issues with which the trialJudge'has dealt.
The appeal must be allowed with costs, the order of the trial'Judge being set aside, and the plaintiff being declared entitled tothe declaration he seeks with costs of suit, the item of Rs. 10,OCX)being expunged from the inventory. Having regard to the fact thatthe plaintiff made a serious charge of forgery against the
(1918) A/D. 70, at p. 85.
I 301 )
defendant, which he had to withdraw when the case came onfor trial, having regard also to the fact that the litigation arises outof the act of the deceased, and having regard also to all the othercircumstances, I think the costs of the trial and of this appeal should
come out of the estate. 1 would so order.

Appeal allotted.
1987.
Dalton J,
Parampalamv.
Arunachalam