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Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, andMr. Justice Middleton.
DINGIEI MENIKA v. DINGIEI MENIKA et al.
D. C., Batnapura, 1,827.
Kandyan Law—Donation in consideration of marriage—Reoocability.
A donation made by a person in favour of his daughter-in-lawin contemplation of her marriage with the donor's son is revocableunder the Kandyan Law.
PPEAL from a judgment of the District Judge of Batnapura.The facts and arguments sufficiently appear in the judgments.
Bawa, for defendants, appellants.
(H. Jayewardene with him), for plaintiff,
Cur. adv. vult.
3rd April, 1906. Lascelles A.C.J.—
This appeal involves the question whether, under Kandyancustomary law, it is competent for a donor to revoke a donationof land made in favour of his daughter-in-law in contemplation ofher marriage with the donor’s son.
The facts, shortly stated, are these. By deed dated 8th January,1870, one Abeyewardana Notary gifted the entirety of certainlands and undivided shares in certain other lands to Dingiri Menika.
The gift is expressed to be made in consideration of the fact thatthe donor's beloved son Batnayaka Muhandiram was accordingto the custom of the country to be married to Dingiri Menika andconducted home.
The deed contained the following clauses: “ Therefore after thesaid marriage I nor my heirs, &c., shall raise any objection ordispute to the grant herein made, and the. donee, the said DingiriMenika, and her heirs, &c., shall possess the same after the saidmarriage.”
After the execution of the deed the donor remained in possessionof the land comprised in the deed up to his death, the donee andher husband living in the donor’s house with his family.
On the 17th May, 1901, the donor, who was then in failing healthexecuted a second deed of-gift by which" he purported to give onethird of the lands therein specified to his son' Martinus Appu,one-third to the plaintiff, and one-third to the widow and childrenof his deceased son William Appuhamy.
1906. Two of the lands comprised in this instrument had been disposedApril 3- of by the previous deed of gift in favour of the plaintiff.
Lasoejxes The plaintiff now vindicates her title to these lands under the^'C' ‘deed of 1871. The defendants contend that the effect of the latter
deed was to revoke the gift of the entirety of the lands in questionto the plaintiff.
, Before dealing with the main question I would mention that Ihave no doubt that the right of the parties must be determined byKandyan Law. The situation of the land, the names and residenceof the parties, and the language of the deeds are conclusive on thatpoint.
It is also clear to me that the plaintiff, who kept for many yearsand then produced in Court the deed of 1871, must be taken to haveaccepted the donation thereby conferred.
There is also authority that the revocability of the deed is notaffected by the covenant on the part of the donor not to object tothe donation.
The general rule of Kandyan Law with regard to the revocationof deeds is thus stated by Sawers: “All deeds of gifts exceptingthose made to priests and temples, whether conditional or uncon-ditional, are revocable by the donor in his life.
But, according to Armour (p. 95), deeds of gift which containthe condition that the donee should pay all the donor’s debts orshould render him assistance • are not revocable, if the conditionprecedent is fulfilled.
This exception to the general rule was extended by this Courtin the case of Heneya v. Rana (1), where.it was decided that agift of land purporting to be made in consideration of assistancerendered and money advanced by the donee to the donor was notrevocable under Kandyan Law. Sir J. Phear in this case said:“ We think it plain that the deed A, upon which the plaintiff relies ashis ground of title, was a conveyance to him from the owner forvaluable consideration of a very substantial character.’’
It has been pressed upon us in the present case that the so-calledgift, being in consideration of the marriage of the donee with thedonor’s son, was in reality a transfer for valuable consideration,and so within the principle of Sir J. Phear’s judgment.
It is true that by English Law marriage is for certain purposesa valid consideration, but this ciraumstance is not sufficient toestablish the proposition that donation in consideration of "marriageconstitutes an exception to the general rule of Kandyan Law withregard to the revocable character of donations. 1
(1) (1878) 1 S. C. C. 47.
The fact that there is no mention of any such Exception in thetext-books on Kandyan Law and in reported decisions is almostconclusive evidence that it does not exist, for donations in considera-tion of marriage are among the commonest of transactions.
I am of opinion that the donation of 1871, so far as it relates tothe property named in the plaint, was revoked by the subsequentdeed of 1891, and that the rights of the plaintiff, as regards the land,are now regulated by the latter deed.
1 would set aside the judgment of the District Court and dismissthe action with costs allowing the appellant the costs of appeal.
I agree that the judgment of the District Court must be set asidefor the reasons given by my Lord.
We have been referred to no decisions of this Court showing thatit has ever been held that a grant or donation in consideration ofmarriage under the Kandyan Law was irrevocable, and such autho-rities on the customary law to which we have access do not appearto contemplate any exception of such a nature to the general ruleof revocability.
In the case before us the donee has in fact accepted by signingthe later deed (marked Dl) the modification of the former giftsindicated in that document. It hardly lies therefore in her mouthto object to the variation of the gifts which she has according to thenotary’s evidence specifically agreed to in that deed.
DINGIRI MENIKA v. DINGIRI MENIKA et al