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Present: De Sampayo and Schneider JJ.DHARMALINGAM v. KUMARIHAMY et al.
406—D. C. Kurunegala, 9yll4.
Kandyan law—Deed of gift—Right to deal as to will and pleasure—Promise not to raise a dispute—Revocability.
Where a Kandyan deed of gift contained a clause, which gavethe donee the right to deal with the property gifted as “ to will andpleasure,” coupled with a promise not to “ raise or utter anydispute whatever,”
Held, that the gift was revocable.
^HE plaintiff sued, the defendants in ejectment from the landcalled Gamagehena claiming title thereto as purchaser at a
sale in execution in April, 1922, against the heirs of Dingiri Kumari-hamy, who, according to the plaintiff, was the original owner byvirtue of a Crown grant in her favour.
The defendants by their answer denied that Kumarihamy becameentitled to the land by virtue of the Crown^ grant, and further pleadedthat first defendant was the owner of the land. That by deedNo. 34,524 of April, 1913 (marked P 3) first defendant gifted this landto Kumarihamy, but that it was subsequently revoked in 1919 bydeed, and thereafter in 1921 transferred to the second defendant.
The learned District Judge held that the plaintiff had good titleas purchaser in execution against the heirs of Kumarihamy, as thedeed of gift of 1913 was irrevocable. From this judgment thedefendants appealed.
Samarawickreme, for defendants, appellants.
The words in the deed of gift binding the donor “ not to raise orutter any dispute whatsoever against this gift and donation ” doesnot disentitle the donor to revoke the gift. Revocation of agift is not the same as disputing a gift. Revocation implies anaffirmation of the validity of the gift itself.
The general rule is that deeds of gift under the Kandyan law arerevocable. To cite only two FullBench decisions: Bologna v. PunchiMahatmaya 1 and Tikiri Kumarihamy v. de Silva.2
An exception has of recent years been created in favour of anabsence of the power of revocation where the deed of gift is for. services already rendered, vide Kiri Menilca v. Kaw Rala.3
In cases such as the present one where the consideration is “ loveand affection ” there is always a right of revocation.
• Bam. (1863-68) 195.3 (1909) 12 N. L. R. 74.
3 (1858) 3 Lor. 76.
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The case for the defendant is stronger still, for in the deed inquestion there is no renunciation of the right of revocation. Evenif there was a clause of renunciation, and the consideration is merelylove and affection, still the right of revocation is not taken awayfrom the donor under the Kandyan law.
So that whether the authorities be considered, or the matter bedealt with independently of authority in the present case, the onlypossible conclusion is that the deed of gift 'was revocable, and hencesecond defendant has the better title.
With regard to the Grown grant all that need be said is that itwas granted to Kumarihamy after her death, and hence no titlepassed to the heirs thereby, vide Bastianv. Andris1 and Appuhamyv. Nona.1
Drieberg, K.C. (with him H. V. Perera), for plaintiff, respondent.
It is too late now for one to ask whether the case in TikiriKumarihamy v. Silva (supra) is not conclusive on the point.
[Schneider J.—What about the passage from Browne J’s judg-ment cited in 9 N. L. R. at p. 213 where gifts are divided intoconditional and unconditional. Here the gift is unconditional.]
That decision is not exhaustive.
When can there be a waiver of the right to revoke ? In all casesexcept where there is a condition still to be performed. In suchthere is hardly a revocation. The true explanation is that the giftfails for want of consideration. In the present case there is nocondition still to'be performed, and this circumstance, coupled withthe words by which the donor bound himself not to dispute the gift,disentitles him now to revoke.
On the claim by virtue of the Crown grant, although it must beconceded that no title passed thereon to the heirs, the grantee beingdead at the date of its execution, there is, however, one point arisingtherefrom.
The grant itself is in 1915, and therefore, presumably, the Crownhad title at that date. The transfer to the second defendant is in1921. The land being chena land in the Kandyan provinces, thetitle is in the Crown, and the Crown might still be willing to transferthe interests to us as successors in title to Kumarihamy.
With regard to the point sought to be made on the validity of theCrown grant to pass title to the plaintiff, it must be said that thepoint was taken in the Court below.
Samaraunckreme (in reply).—Under Kandyan law what a person
can give by way of gift he can get back.
1 (1911) 14 N. L. B. 437.
2 (1912) 15 N. L. B. 311.
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The Full Bench decisions that the general rule is that gifts arerevocable is binding.
Even a transfer could have been set at naught by a refund of themoney paid. This rule was set aside by proclamation dated July14, 1821.
Mere renunciation does not prevent a person from exercising theright. A testator though he renounces the right of revoking a willcan nevertheless do so.
The power of revocation is an inherent right, and must be deemedto exist.
June 23, 1925. Schneider J.—
The plaintiff sued the defendants in ejectment from an allotmentof land called Gamagehena with its appurtenant pillewa. He setout in his plaint that Dingiri Kumarihamy was the owner of theland by virtue of a Crown grant, and after her death, under a writissued against her heirs, that it was sold and purchased by him inApril, 1922. He did not say that he had obtained a transfer of it,but it appears that he did, in fact, obtain such a transfer from theFiscal.
The defendants denied in their answer that Kumarihamy becameentitled to the land under the Crown grant pleaded by the plaintiff.They stated that the first defendant was the owner of the land, andgifted it to Kumarihamy by the deed No. 34,524 of April, 1913 (P3),but that she subsequently revoked that gift by another deed ofOctober, 1919, and inl921 sold and transferred the land to the seconddefendant. They also pleaded that the Crown grant “ enured to thebenefit of the defendants.’*
Among other issues the District Judge tried the following :—
“ (1) Is the deed No. 34,524 of 1913 revocable ? ”
“ (2) Did the title to the land in question vest in Dingiri AminaKumarihamy on Crown grant of December 31, 1915 ? "
‘ (3) Or did Dingiri Amma Kumarihamy obtain the .said grantin trust for the first defendant ? ”
The learned District Judge held that the deed of gift was irre-vocable. He also held that the plaintiff had acquired a good titleto the land as a purchaser when it was sold in execution against theheirs of Kumarihamy, although the Crown grant was ineffectualto pass title to Kumarihamy, as it was executed after her death.He was of opinion that as the land “ was settled ” upon Kumari-hamy before her death, her title, which devolved on her heirs againstwhom it was sold, had passed to the plaintiff as the purchaser at thesale. He says in his judgment that he regards the whole dispute asdepending upon the question of the revocability of the deed of gift*
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It was this question which was debated at -the argument of thisappeal of the defendants. The following are the relevant portionsof the deed
Four allotments of land including the one in dispute “ are herebydonated, gifted, and assigned over to my daughter, DingiriA mm a Kumarihamy (who is affectionately rendering meaid and assistance in an obedient manner), for and inconsideration of the affection and love which I bear andcherish towards her.”
~ “ Therefore the said donee and her heirs, executors, administrators,and assigns are hereby empowered to hold and possess thisgift from this day, or deal with the same as to will andpleasure. That I, the said donor, for myself and on behalfof my heirs, executors, administrators, and assigns havehereby promised not to raise or utter any dispute what-soever against this gift and donation.”
It is now well settled that according to the Kandyan law giftsof land are revocable as a general rule Bologna v. Punchi Mahal-maya (supra), Tikiri Kumarihamy v. de Silva (supra), and severalothers.
In Tikiri Kumarihamy v. de Silva (supra), it was held by a Bench .of three Judges of this Court that a grant of land by deed in con-sideration of past services and containing a clause debarring thegrantor from revoking it is irrevocable according to the Kandyanjaw.
Mr. Samarawickreme’s contention as regards the revocability ofthe deed of gift was two-fold. He argued first that the deed wasa transfer of lands by way of a simple gift, the only considerationfor which was “ affection and love ” as stated expressly in the deeditself, and that that being so, even if there was a clause by which theright of revocation was barred, the deed was nevertheless revocable.He next argued that there are no words in the deed which can beconstrued as debarring the donor's right of revocation. Mr.Brieberg for the plaintiff, respondent, did not seriously contest thatthe consideration for the deed was “ affection and love.” I do notsee how he could have urged that there was any other considerationin the face of the fact that the deed itself expressly sets out thatthe consideration was the love of the donor for the donee. But hfeargued that the words “ deal with the same as to will and pleasure,”and the promise of the donor for herself and her heirs and assigns“ not to raise or utter any dispute whatsoever against this gift anddonation ” operated to debar the revocation of the gift, although itwas, if I may adopt the language of the Roman-Dutch law, aDonatio simplex. A long argument was addressed to us upon thequestion that there was nothing in the Kandyan law to prevent a
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ling am v.Kumari-hamy
person renouncing his right of revocation whatever be the considera-tion for the grant he is making upon the principle “ unicuique licetjuri in favorem suum introducto renunciare.” This is a questionwhich has been argued in some previous cases. It is one whichrequires careful consideration, and as it is not necessary for thedecision of this case to decide that question, I will say no more. Iaccept Mr. Samarawickreme*s contention that there is nothing inthe deed under consideration debarring the donor from revoking it.It would be helpful to refer to a few cases in which the constructionof deeds similar to the one in question had been under con-sideration.
In Kiri Menika v. Kaw Rala (supra) a Full Bench of this Court heldin 1858 that the words ‘* to be possessed finally as paraveni property *'and provided" that if the donor should happen to leave him, not beingsatisfied, he shouldfor the above-named consideration (i.e., assistancefor three years and payment of a debt) finally hold the land,”constituted a renunciation of the right of revocation.
In Bologna v. Punchi Mahatmaya (supra) again a Full Bench heldin 1866 that the words—services “ continued to be rendered by thedonee ’ ’—were insufficient to debar revocation. They also expressedthe opinion that before a particular deed is held to be an exception tothe rule of revocability, it should be shown that “ the circumstanceswhich constitute non-revocability appear most clearly on the faceof the deed itself.”
In 1878 in Molligoda v. Sinnetamby1 Clarence and Dias JJ. heldthat the following words were insufficient to constitute a renun-ciation : “ Hereafter neither myself nor any of my descendants,heirs, executors, administrators, or assigns can raise any dispute byword or deed, and that should any such dispute.arise, either I ormyself, or my heirs, executors, administrators, and assigns shall freethe same, and from this day forth the said Tikiri Banda or his assignsare hereby empowered to possess.” They thought that the wordsappeared to be such words of further assurance as might reasonablybe expected to occur in an ordinary conveyance, and were notintended by the donor to renounce her Kandyan power of revocation.They expressed the opinion that such a renunciation must certainlybe express and unmistakeable.
In Tikiri Kumarihamy v. de Silva2 a Bench of three Judgesconstrued a deed granting lands in consideration of assistancerendered by the donee to her mother, the donor. They held thatthe following words constituted a renunciation of the right ofrevocation : " I or my heirs shall not from this day forth by act orword raise any dispute whatsoever against this donation, that in theevent of any such dispute arising during my lifetime, such disputeshall be settled by me and deliver the lands unto the donee free from1 7 S.C. C. 118 (at foot of 119).2 (1906)9 N.L.R.202 ; (1909)12 N.L.B. 74.
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dispute ; that from this day forth my daughter, Kumarihamy, whohas received the aforesaid gampanguwa from me and her descendingor inheriting children, grandchildren, and heirs, &c., shall, accordingto pleasure without dispute as their own property, hold and possessfar ever.*9 If I may say so with all humility, Wood Benton J. struckthe right note when he said : “ In my opinion to import into thedecision of cases of this description, the English doctrine of consider- -ation or ideas borrowed from English conveyancing rules as tocovenants for title, instead of looking to the real nature of thetransaction and to the intention of the parties, is merely to createopportunities for the evasion of obligations, which have beenseriously undertaken, on the faith of which extensive dealings withproperty may have ensued, and which ought in the interests ofpublic and private honesty to be strictly enforced.”
Mr. Drieberg contended that we were bound by the decisionreported in 12 N. L. E. 74 to construe the words in the deed underconsideration in this case as containing words debarring revocation,as the words here are identical with the words of the deed construedin the case reported. I venture to say I am unable to accept thatargument. The two deeds are different in their nature, though bothcome under the same category of a “ gift. ” In the former case theconsideration was assistance rendered for four years and moneysspent on medicine and physicians, while here it is sincere love andaffection. The consideration helps to interpret the covenants. InTikiri Kumarihamy v. de Silva (supra) the pregnant words were thatthe donee shall “ hold and possess for ever 99 Words which do notappear here. A promise “ not to raise or enter any dispute what-soever against the gift55 is not the same thing as not to revoke orcancel the deed. The words of the deed construed in MoUigoda v.Sinnetamby (supra) are closely similar to—if not identical with—thewords of the deed under consideration. I would construe the wordsas not sufficient to exhibit an intention to renounce the right ofrevocation. I hold that the donor had not renounced herright to revoke the deed of gift, and that her subsequent revocationwas valid. The second defendant is, therefore, entitled to be declaredthe owner of the land in dispute and to have the plaintiff’s actiondismissed, but only in so far as the plaintiff’s claim, to the land isreferable to the title derived by Dingiri Amina Kumarihamy underthe deed of gift of April, 1913, from the first defendant.
There remains the question of the title purported to be conveyedto Dingiri Amma Kumarihamy by the Crown grant of 1915 (P 7).
I venture to differ from the holding of the learned District Judgethat Kumarihamy’s heirs became entitled to the land as it was“ settled ” upon her before her death. The Crown grant isineffectual to pass title to Kumarihamy as it is a grant to a deadperson. This is clear from Chellamma v. Namasiivayam,1 Bastian v.
1 (1907) 3 Bat. 209.
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And/ris (supra), and Appuhamy v. Nona (supra). If Kumarihamyhad no title from the Crown, she could transmit nothing to her heirs.What the District Judge calls “ settled ” cannot be regardedas givingKumarihamy any other right than to claim a grant from the Crown,otherwise why should there be a grant at all. It has been held thata formal grant by the Crown is necessary to pass title to immovableproperty from the Crown. See Chdlamma v. Namasiwayam citedabove. , Accordingly, the plaintiffs claim fails in so far as it is basedupon the Crown grant in question. For this reason, too, his actionmust be dismissed. Mr. Drieberg apprehended that dismissal of thisaction would debar the plaintiff from asserting a claim to the landupon a title rightly derived from the Crown. . I do not think thatthis case could be pleaded res judicata against such a claim. Thiscase only decides that if the first defendant was once the owner, thesecond defendant is now the owner, and if the Crown was the ownerthe plaintiff’s predecessor had not obtained title from the Crown.It would appear from the document (P 10), the Crown would be in aposition to prove a primd facie incontestable claim to the land, as itis said to have been a chena at the date of its survey by the Crownand to be situated in the Kandyan provinces.
In the circumstances the simplest course is to allow this appealwith costs, and to dismiss the plaintiff’s action with costs. I makeorder accordingly.
De Sampayo J.—I agree.
DHARMALINGAM v.KUMARIHAMY et al