( 371 )
Present : Middleton J.
KOMALIE t;. KIBI.
370—C. R. Mdtalc, 9,491.
Kandyan late—Revoation of deed of gift—Special clause of disinherison—What is paraveni property t—Acquired property.
A Kandyan woman revoked a donation of a land to her children,as they had failed and neglected to render assistance to her.Subsequently she donated it to her daughter-in-law; this deedcontained a clause thatnoneofherheirs, executors, administrators,
or assigns should make any dispute with regard to the gift.
Held, that this clausehad(inthecircumstances) theeffect of a
special clause of disinherison.
A clause of disinherison is necessary only when all the paraveniflands are gifted.
HIS was an appeal from the following judgment of theCommissioner of Bequests, Matale (W. Dunuwille, Esq.):-1—
The field in dispute was the acquired property of Tikirie. She giftedit among other lands under certain condition by deed No. 19,997 datedDecember 30, 1905, to herniece(daughter-in-law) Komalie,the plaintiff
in this action. The donordied withoutrevoking thisgift, andplaintiff
claims title under this deed.
The plaintiff complains that the defendant, who is the daughter ofTikirie. is in the wrongful possession of this field. The defendant claimstitle to the field in right of her mother and by right of prescriptivepossession. Tikirie, the original owner, died two years ago, and in myopinion neither plaintiff nordefendantcansucceed by rightof prescrip-tive possession. Tikirie onJanuary 25,1884, appearsto haveexecuted
a conditional deed of gift, No. 6.828, for this field and other lands infavour ofdefendant and herbrotherKira (plaintiff’s husband). She
on April li, revoked this gift by a deed No. 17,046 P, and executed onDecember 30, 1905 ] the deed of gift under which the plaintiff now claims.Tikirie’s right to revoke the gift deed No. 6,828 is not disputed, nor doI think it can be; but it is contended that the gift in plaintiff's favouris bad in law, in that it does not contain a clause of disinherison as againstTikirie's daughter, the defendant. On this 'contention I hold that at thepresent day no clause ofdisinherison isneeded in aKandyandeed of
gift, even it the gift was to a stranger, and even if sucha clause is needed
to disinherit the defendant, 1. hold that the execution by Tikirie of thedeed of revocation No. 17,046 is proof of such disinherison. Then, again,as the plaintiff is the daughter-in-law of Tikirie, the gift in her favour didnot require for validity a special clause.
I give judgment for plaintiff for the field with costs.
The defendant appealed.
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Grenier, for the defendant, appellant.—The deed of gift in favour ofthe plaintiff is invalid, as there is no special clause of disinherison.Indejoti Vnnanae v. Keerala;1 2 * * 5 Bandara Menika v. Palingo Menika;*Austin’s Reports 192 and 203; Perera’s Armour, p. 98, section 8.
In Appuhamy v. Kiri Menika8 it was decided that a clause ofdisinherison was not necessary when the deed is from husband towife. Impliedly, therefore, if the deed was to any other than thewife, a clause of disinherison would be necessary. See also PunchiAppu v. Baba Appu.* Sundara v. Peris5 assumes that a clause ofdisinherison is necessary; but this case draws a distinction betweengifts de presenti and those which are to take effect after the deathof the donor. It regards the latter class of deeds as wills, andtherefore not requiring the clause. But this distinction is not onethat is now recognized. At whatever time the deed is to take efieetit is regarded as a gift. Carolis v. Don Davith.*
J. W. de Silva, for the plaintiff, respondent.—Under the Kandyanlaw an owner may dispose of his property as he pleases, by sale orgift or bequest (Perera’s Armour 93). Ordinance No. 21 of 1844gives every one full power of testamentary disposition. This deedis in the nature of a testamentary disposition.
The necessity- for a clause of disinherison applies only to paraveniproperty. This is acquired property. See Ukkurala v. Tilleke-ratna,T Mudalihami v. Bandirala,® Kiri Menika v. Muttu Menika.•
The principle that in a case of donation to a wife a clause ofdisinherison is not necessary may be extended to gifts in favour ofdaughters-in-law.
Grenier, in reply.—Property purchased by a father and gifted toa son is paraveni property. See 3 N. L. R. 379. The deed isnot a testamentary disposition. See Utuma Levai v. MayatinVava et ol.10
Cur. adv. vult.
November 2, 1911. Middleton J.—
This was an action for declaration of title to a field called Ambe-dandekumbura, gifted to the plaintiff by her mother-in-law Tikirieby deed dated November 30, 1905, No. 1,997, of which.it was allegeddefendant, who is the daughter of. Tikirie, had taken forciblepqgfSession. Tikirie died without revoking this deed. The land wasfirst donated by deed of gift No. 6,828 dated JafiUary 25. 1884, byTikirie to her daughter, the defendant, and her brother, the plaintiff’shusband, but this deed was revoked by the deed of gift No. 17,046of April 11, 1901, and the property, with other property, was
1(1861) Ram. 109.
2(1861) Ram. 108.
2 (1894) 3 C. L. R. 81.
‘ (1866) Ram. 811.
5 (187§) 8 C. L. R. 81, footnote.
« (1907) 11 N. L. R. 17.* (1888) 5 S. C. C. 46.
« (1898) 3 N. L. R. 209.
9 (1899) 3 N. L. R. 376.>« (1907) 2 A. C. R. 138.
c 378 )
subsequently donated by deed No. 1,997 to the plaintiff. Thedefendant also claimed by adverse possession, but the Commissioner.of Bequests held against both parties on thiB issue.
The Commissioner—a Kandyan Dissave—held also on the secondissue, “ Whether the plaintiff’s deed was valid in law,” that itwas not necessary at the present day that a Kandyan deed of giftshould contain a special clause of disherison even if the gift was toa stranger, but in any case the execution of deed No. 17,046 wassufficient proof of disherison; but that as the gift was to a daughter-in-law it did not require for validity any such special clause, andgave judgment for the plaintiff.
The defendant appealed, and for him it was contended, on theauthority of Indejoti Unnanse v. Keerala (D. C. Kandy, 27,150),*that deed No. 1,997 ought to have contained a special clause ofdisherison, and set out the, reasons tor it. I was also referred toAppukamy v. Kiri Menika2 and to Sundara v. Peris,3 reported asa note to that case, and to page 98, section 8 of Per era's Armour.
In my opinion the spirit and intention of that section whichrequired a talipot or other deed has been carried out here. By deedNo. 17,046, for the reasons given in it of neglect and failure of thedefendant to render asistance as apparently agreed, Tikirie revokedher deed of gift No. 6,828 to her two children, indicating in the samedeed a necessity for sale of the property. By deed No. 1,997 theproperty was then donated to the plaintiff for the purpose of herrendering that assistance which the defendant apparently hadneglected to give. The deed No. 1,997 also contained a clause thatnone of TikirieV heirs, executors, administrators, or assigns shouldmake any dispute with regard to the gift. This would clearlyinclude the defendant, and to my mind would have the effect of aspecial clause of disherison, the reasons being indicated, though,perhaps, the formula—whatever it may be-r-which is alluded to insection 8 (ubi * supra) does not appear. No one could contend thata talipot deed, and not a paper deed, would be required at the presentday. I think also that the judgments of Lawrie J. in Appukamy v.Kiri Menika2 and of Phear C.J. in Sundara v. Peris (ubi supra)recognize the necessity of applying the Kandyan law on this questiononly in such cases as are most manifestly within the decision inNo. 27,150 Kandy, which, as Phear C.J. said, involved the questionwhether the donor intended the gift and enjoyment to continueafter his death to the disinheriting of his heirs. The Kandyan lawas to disherison would not apply to the case of a testamentarydisposition. (Section 1 of Ordinance No. 21 of 1844.)
In the present case, also as in the case of Sundara v. Peris,*No. 1,997 constitutes a deed of gift, which is to take effect practicallyonly after the death of Tikirie, although, perhaps, the usufruct of the i
i (1861) Ram. 109.a (1894) 3 C. L. R. 81.
a (1878) 3 C. L. R. 51, footnote.
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land was to be vested in the donee for the purpose of rendering thatassistance to the donor which the deed contemplated. As Wendt J.said in Carolia v. Don Davith,1 “ there are in it words of immediateconveyance the document is registered, stamped, and numberedas a deed, and bears on the face of it an acceptance by the donee,and calls itself a deed of gift. At the same time I think it onlyvested the usufruct with an implied reservation of the dominium•until after the death of the donor. To this extent only it istestamentary, although it was not executed strictly on the faceof it in accordance with the provisions of the first part of section 3of Ordinance No. 7 of 1840. I doubt, therefore, if it can be calleda testamentary disposition within the terms of Ordinance No. 21of 1844.
It was argued also that deed No. 1,997 dealt with all the paraveniproperty of Tikirie, and was therefore repugnant to the Kandyanlaw, and the evidence of Aluwihare Katemahatmaya was relied onto show that Tikirie had donated all her lands by it. This, to mymind, was not clear from that evidence, and the burden was on thedefendant to prove it. As to this point also Lawrie J., an authorityon Kandyan law, held in Appuhamy v. Kiri Menika (ubi supra) thata clause of disherison was necessary only when all the paraveni landswere gifted.
I think also that the deed No. 1,997 itself proves that Ambedande-kumbura was not paraveni property in the sense used in the Kandyanlaw, which implies a descent by heritance. (Perera’s Armour,'Gloss. 143). ' ,
It might have become so if it had descended on Tikirie’s heirs, butas between Tikirie and her heirs it had not yet become paraveni, butstill remained as acquired property at the time of the deed No. 1,997,which intercepted its descent by inheritance.
In my opinion, therefore, the ruling of the Commissoner is ineffect right, and I dismiss the appeal with costs.
1 (1907) 11 N. L. R. 19.
KOMALIE v. KIRI