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Present: Ennis and Schneider JJ.
KtRIHENAYA v. JOTIYA.72—D. C. Kegalla, 5,798.
Kandyan law—Deed of gift—Renunciation of the rights of revocation—
A Kandyan deed of gift which expressly renounces the right ofrevocation, and which is not dependent on any contingency, isirrevocable.
A deed of gift is a contract, and there is no rule of law whichmakes it illegal for one of the parties to the contract to expressly
renounce a right which the law would otherwise give him.
N this case the plaintiff sued the defendant for a declaration oftitle to the lands described in the plaint, pleading title upon adeed of conveyance No. 20,755 dated. October 5, 1922, from Kuda Ridi.
The defendant denied plaintiff's title, and pleaded title in himself,claiming the same from the donee of the said Kuda Ridi.
Kuda Ridi, the admitted owner, first gave deed of gift No. 597(D 1), and revoked the said deed No. 597 by deed of revocationNo. 20,754 (P 1), and transferred the same to the plaintiff, appellant,on deed No. 20,755. The defendant claimed title from the doneeon. deed No. 597.
The parties went to trial on the following issue: Is deed No. 597 ofDecember 20, 1908 (D 1), a revocable deed? The learned Judge(V. PT Redlich, Esq.) delivered the following judgment, dismissingplaintiff's action, with costs: —
There was only one issue framed in this case. It was agreed on bythe parties. It related to the interpretation of a deed of gift (D 1) No. 597of December 20, 1908, by a Kandyan to her grandson. This grandsonby a deed of March, 1920 (D 2), sold his rights to defendant.
The original Kandyan donor, however, by deed No. 20,754 of October 5,1920, purported to revoke deed of gift (D 1), and on the same date sold theportion, in dispute to plaintiff.
The question then arose whether the original deed (D1) – was revocable.Mr. Molarnurereliedon J-5 N. L. R.193 which, however, is not on all
fours with thiscase:in the deed inthatcase there was & condition
attached to the gift which condition was not fulfilled by the donee. Healso read to Court from Modder's, pp. 173-175 and p. 154. The state-ments therein contained were accepted by Mr. Swan, but he arguedthat this casecouldnot be brought iaunder those circumstances,
inasmuch as in her deed (D 1) the donor gave up her right to revokethe deed.
At a later stage under protest by Mr. Swan, Mr. Molarnure called thedonor to prove under what circumstances he .revoked the deed; her-evidence was in conflict with' the terms of her deed of revocation', and 1do not believe her oral evidence.
Mr. Molarnure further relied on Modder, pp. 193-194, —but failed toprove that thedonorhad re-enteredintopossession, or had quitted
donee’s premises and had taken up residence elsewhere from where 6hegot support.
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Mr. Swan’s argument that the donor had renounced, her right torevoke appeared to me to be sound, and I answer the issue againstplaintiff, and dismiss his action, with costs.
The following is the deed (D 1): —
Deed of Gift No. 597.
Know all. men by these presents dated December 20, 1908, I, Vidane-henayalage Kuda Bidi of Welimanna in Tumpalata pattu in Paranakurukorale, do hereby declare as follows: —That for and in considerationof the filial love and affection and various other good qualities, and for thesake of hiB future welfare, I, the aforesaid. Vidanehenayalage Kuda Bidi ofWelimanna, do hereby gift and make oyer to Vidanehenayalage Aban-chiyahenaya of Welimanna, one of my grandsons,. the,.lands, high andlow, together with the – plantations and buildings standing thereon, morefully described in the schedule hereunder written,' all valued at Rs. 600.And I hereby declare that I shall not revoke this deed of gift at any time..in any manner, or change it in any way after date hereof. Therefore, thesaid Vidanehenayalage Abanchiyahenaya, or hiB heirs, Ac., from datehereof, can possess and own the said undivided shares of lands so gifted,and 1 shall have no claim whatever to them, and further the said doneeand his heirs, Ac., can do anything they like with the said property^ I,Vidanehenayalage Appuwahenaya, father of the said donee, Abanchiya-henaya, hereby accept with thanks and pleasure the said gift from thesaid donor Vidanehenayalage Kuda Bidi.
In witness whereof we, the .said donor and acceptor on .behalf ofdonee, have set our signatures to three copies of the same tenor anddate as these presents on December 20, 1908, at Mawatagoda,
Schedule referred to.
1, An undivided half share out of Miwittawelakumbura, Ac.
This deed was revoked to-day by deed No. 20,754 attested by me.
(Sgd.) D. O'. Febsando,
October 6,. 1920.Notary Public.
R. L. Pereira (with him D.. B. Jayatileke and H. V. Perera, forplaintiff, appellant.
Satnarawiclcreme (with him Navaratnam)t for defendant, respondent.September 8, 1922. Ennis J.—
This appeal raises once again the question of the irrevocability ofa Kandyan deed of gift.
The facts are as follows:—
On December 20, 1908, one Kuda Bidi, “ in consideration of thefilial love and affection, and various other good qualities and for the«ake of his future welfare,” conveyed to her grandson Abanchiya-henaya a half share in a land, as a gift, and she further expressly
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declared that she should not revoke this deed of gift at any time inany manner, or change it in any way after the date of its execution.The defendants claim in succession to Abanchiya by a document ofMarch 29, 1920. Qn October 5,1920, Kuda RidibydeedNo.
20,754 revoked her gift under thedeed of December20,1908,and
she executed on the same day adeed No. 20,755,bywhichshe
conveyed the property on a sale tothe plaintiff; Thelearned Judge
held that Kuda Ridi could not revoke her earlier deed of gift. Theplaintiff appeals from this decision.
There are a number of cases dealing with this question of theirrevocability of Kandyan j deeds of gifts. Most of' the reportedcases consider the position when a condition imposed by the gifthas not been fulfilled or has been partly fulfilled, or where there hasbeen some sort of consideration in past services or an undertakingto pay debts. There are, however, several reports of cases whichdirectly bear on the point now in issue. The first of these caseswas decided in 1835 (1,564, Austin’s Reports, p. 15). That casecited the fact that there were a number of decrees which set out theprinciple that where a clause is inserted in a deed of gift expresslydebarring the donor from the privilege of resumption, the deed isirrevocable, and a footnote give the names of the cases referred to inthe judgment. One was a case of 1817 and another, a case of 1822.The subsequent cases expressed the principle which has been followedin judgments of some length, and it would not be necessary to domore for the purpose of this ease" than cite one of the latest, vis.,the case of Banda v. Hethuhamy.l In that case Lascefies C.J., said:“ Where, on the other hand, the donee has failed to carry out theconditions on which the gift was made, he cannot .invoke the protec-tion of the renunciation clause, which was intended – to take effectonly if the stipulations in the deed were complied with. Theprinciple laid down by Armour involves an examination of the deedin order . to ascertain the true intention of the parties. In thedeed now under consideration, it is clear that the donor's intentionwas that the irrevocability of the gift should depend upon the dueobservance of the stipulations, subject to which the donation wasmade.”
Middleton J.t in his judgment in the same case, said that theprinciple of the power of revocation is founded to a great extent onthe conditional nature of most of these Kandyan deeds of gifts, andhe held that in the case before him the deed intended that the doneeshould work the lands and pay off the mortgage, and that if he didso, it should be irrevocable; if not, it should bq revocable.
These two judgments in my opinion show the principle, thatshould be followed in deciding questions of this sort which, arise onKandyan deeds of gifts. The deed itself must be examined in orderto ascertain the true intention of the parties, and where the deed of *
* (1911) IS N. L. R. 193.
1928. gift expressly renounces the right of revocation, and the gift is notEnnj8 J. dependent on any contingency, the gift is irrevocable. The reason
would seem to be that a deed of gift is a contract, and there is no
ru*e °- *awmakes it illegal for one of the parties to the contract
to expressly renounce a right which the law would otherwise givehim or her.
I would accordingly dismiss the appeal, with costs.
Sen??eider J.—I entirely agree.
KIRIHENAYA v. JOTIYA