GARVIN S.P.J.—Gunadasa v. Appuhamy.
1934Present: Garvin S.P.J.
GUNADASA v. APPUHAMY et al.
20—C. R. Dandagamuwa, 3,051.
Kandyan law—Deed of gift—Renunciation of right to revoke—Right to possessthe land for ever.
Where a Kandyan deed of gift given in consideration of services to berendered in the future granted “ all the right, title, and interest of methe said donor in and to the premises for ever ”,—
Held, that the donor did not renounce the right of revocation by theuse of the words “ for ever ”,
PPEAL from a judgment of the Commissioner of Requests,Dandagamuwa.
J. R. Jayawardene, for the plaintiff, appellant.
Rajapakse (with him Kariapper), for the defendants, respondents.
July 17, 1934. Garvin S.P.J.—
By a certain deed of gift bearing No. 9,565 and dated October 13, 1924, oneDingiri Menikhamy donated unto her five children the premises whichare the subject-matter of this action. The only question which arises fordecision is whether or not there is anything in the language of this deedof gift which would justify the conclusion that it was a gift irrevocable.Inasmuch as it has been urged by certain of the defendants and urgedwith success in the Court below that this is such a deed, it is necessaryto examine its terms more closely to ascertain whether the contention canbe sustained.
Now the learned Commissioner in a careful judgment in which he hasreferred to some of the more important cases in our books came to theon?!vision that there are certain words here which indicate that the donor
GARVIN S.P.J.—Gunadasa v. Appuhamy.
intended to and did in fact renounce the ordinary right of every donorunder the Kandyan law to revoke a gift. He draws attention to thepassage in which these words occur and, while observing that they werealmost identical in terms with the words which were relied on for asimilar contention in Dharmalingam v. Kumarihamy1, without success,remarks that there are here a few additional words, namely, the words“ for ever ”, which he thinks are so inconsistent with the existence or theretention of a right to revoke that they must be regarded as indicative ofan intention to renounce that right.
Now the clause to which the Judge refers is this:—“Therefore I dohereby invest the said donees, Wimalahamy, Ram Menika, Mutu Menika,Siyatu Banda, and Punchappuhamy and their heirs, executors, adminis-trators, and assigns with the full power and authority that they be ownersfrom this date and possess the said premises hereby donated and all theright, title, and interest of me the said donor in and to the same for everwithout any interruption whatsoever or deal with the same in whatsoevermanner they may desire ”. Now upon a careful examination of thatpassage it seems to me that the fact that the words “ for ever ” appear init makes no difference whatever to the meaning of the words. Manifestlythe purpose in view when the clause was framed was to vest the doneeswith full dominium to the land which was the subject of the gift, andwhether the words “ for ever ” appear therein or not the effect of vestingthe dominium would be to vest it for ever in the absence of special wordsimposing a definite limitation upon the grant. The donor recites that thegift is made “ in consideration of the natural love and affection which Ihave and bear unto my said five children and for divers other causes andconsiderations for the purpose of obtaining help and good treatmentsduring the remainder of my life”. The purpose of the gift would seem-to be to secure to the donor that she would be well cared for during whatremained to her of her life and such deeds are always revocable under theKandyan law unless they are expressly declared to be irrevocable, videUkku Banda v. Paulis Singhos, or where the power of revocation isexpressly renounced. In this instance the deed is not declared to beirrevocable ; there is no expression of renunciation of the power to revoke ;and in my judgment the clause which I have quoted and to which I havereferred cannot fairly be construed as containing language which imposesa limitation or a renunciation of the ordinary right of the donor to revokesuch a deed.
For these reasons I would set aside the judgment of the learned Com-missioner. The plaintiff will be declared entitled to a 1/5 share of thepremises in question and to the other relief claimed by him save that therewill be no award of damages in view of the agreement entered of record atpage 30. He is also entitled to his costs both here and below.
Appeal allowed. *
'27 N. L. R. 8.
*27 N. L. B. 449.
GUMADASA v. APPUHAMY et al