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Present: Pereira J. and Ennis J.
BAM MENIKA et al. v. BANDA EEKAM et al.
D. G. Kandy, 21,338.
Kandyan law—Deed of gift—Revocation—Consideration.
A 'Kandyan deed of gift is revocable whether it is made as returnfor past sendees or in consideration of a marriage that has alreadytaken place, or even in view of a contemplated. marriage, so long as‘ it has all the elements of a mere free will gift. Where, however,a donation is made in consideration of, or as an inducement for,a marriagetobe contracted orservices toberendered hereafter,
and suchmarriage is accordinglycontractedorsuch services are
accordingly rendered, then it would be inequitable to allow a revocationof the donation.
HE facts are set out in the following judgment of the learnedDistrict Judge (F. E. Dias, Esq.) : —
The first plaintiffis the daughter of the defendant, and she and her
children bringthisaction to vindicatetheir titletoa field and three
high lands under the following circumstances: —
The defendant was the owner of these lands, and by deed No. 6,361da.ted March 9, 1900, he conveyed them -to his daughter on the occasionof her marriage with one N. M. K. Appuhamy. In 1910 the firstplaintiff conveyed the entirety of three of the lands and a half share ofthe other landtoher twochildren,theeecondand.third plaintiffs.
Itis said thatinor about July, 1911,the defendantgot forcible posses-
sion of all the lands, disputing his own grantee's title, and kept all theplaintiffs out ofthelands.
The parties are Kandyans, and the defence set up is that the deed infavour of the . first plaintiff was only a revocable deed of gift whichpassed no title,andthat inAugust,1911,byadeedNo.4,493,the
defendant, as he lawfully might, revoked his: gift of 1900 to his daughter.
To this it is replied that the gift in favour of the first plaintiff was forvaluable consideration, namely, in 'consideration of her marriage withAppuhamy, and that therefore it was not revocable.
That is the issuewe havenowto consider. Therecan beno question
as to what the consideration for this deed was. Its language is veryplain:“ Whereas I, Kiri Banda, Registrar, &c., have promised at
the marriage ofmydaughterBan Menikatogiveherasdowryhigh
lands and mud lands to the value of Bs. 1,0^0, and as she is now askingfor the said dowry from me, and as I consider it proper that I shouldgive her the saiddowry, Idohereby make, thefollowingendowment,
to wit (here follows a list of the lands). All the above high lands andmud lands of thevalue ofBs.1,000 are herebydowered,made over,
and put in possession of my said daughter Ban _ Menika, and therefore,not only could the said Ban Menika and her heirs and executors possesseverything belonging to this endowment from henceforth according totheir own will and pleasure, but it is also hereby determined that neither I,the said Kiri Banda, Registrar, nor my heirs and executors, can raise anydispute with respect to this endowment, nor set up any claim theuto.”
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1912. If words have any* meaning, the grantor here intended to convey thelands tohisdaughter asagift absolute,theconsideration beingher
Banda ° marr'aSe with Appiihamy. They were her promised dowry, for whichLtkam herhusband doubtless married her. Thatbeing so, one canhardly
imagine it to be possible that the law of this country permits the grantorof such a donation to revoke his. deed, in fraud of the donee and inderogationofhisown original conveyance. I have, however, been
referred to the case of Dingiri Menika t>. Dingiri Menifca,' in which theSupremeCourtin19Gf> heldthat donation made inconsiderationof
marriage was revocable under the Kandyan law, as ^ it does not constitutean exception to the general rule of Kandyan law with regard to therevocablecharacter of alldonations, exceptthose made to priestsand
* Iam concludedby thisdecision, andam bound to hold that the
present defendant hadtherightto revoke hisdeed, sothat theplaintiffs'
I,however, feelbound tosay that thdabove ruling of theSupreme
Court is one which in my humble opinion will not be supported if it isreconsidered by a Full Court. It will be seen that both the Judges whotook part in that decision base their, judgments on the fact that theirattention was not called to any case of this kind referred to. in any of' thetext books on Kandyanlaw, or inany reported decisionsof the
It may be true that Sawers or Armour refers to no case in which adonationinconsiderationofmarriage washeldto ■ be irrevocable,and
to constitutean exceptiontothe general rule ofKandyan law, butthat
circumstance noes not necessarily show that it can on no account be anexception'. The booksofthosetwo writersare notcompletecodes of
the Kandyan law. Theyarenothing morethan collections of special
-cases, from which we have, to deduce principles, and certainly theynowheresaythata donationmade in considerationof marriageis
Withregardto’the allegedabsence of any reporteddecisions ofthe
Supreme Court on this question, I would refer to the case of Ukku s,Dintuwa, 2 for which reference I am indebted to the plaintiffs' proctor, .Mr. Vanderwall. This is a very strong case, decided so far back as1878 by" Phear C.J.andDiasJ., and those Judgesnot onlyheld that
a deed of gift made in contemplation of marriage, was a deed for valuableconsideration and therefore irrevocable, but they even went so faras .to hold that, although the deed ' on the face of it purported to be amere voluntary deed made out " of free will and affection," the doneewas entitled' to show ' that the deed wag in. fact made for the valuableconsideration of her marriage with donor’s son.
Then, again, wehaveanother case ofthisCourt, No. 48,258, K. J.
Pohath v,. K. Caro Us Perera and another, decided in 1868 by Mr. Berwick,
. where, the validityofa donation made"incontemplation of marriage
was upheld. Therewasno appeal takeninthat case, but when we
consider the eminent position in the field of Kandyan law which thelawyers engaged in that case held (viz., the late Advocates van Langen-berg and Vanderwall and Proctors William Goonetilleke and J. R-Siebel), I think itwould be presumptiononour part to suppose tnat
t 9 N. L. R. 131.* 1 S. C. C. 89.
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they had erred in subscribing to the principle that such a deed was1912.
valid and irrevocable. ■Bflm Menika
On the .law as it stands at present I must rule ggainst the plaintiffs on «. Bandathe first issue, and hold that this deed was revocable. That being so,Lekam
their action must be dismissed with costs.
Elliott, for appellants.
Bawa, K.C., for respondents.
* Cut. adv. vult.
September 27, 1912. Pereira J.—
The question in this case is whether a Kandyan deed of giftgranted on the occasion of the marriage of the donee is revocable.
The District Judge says that he is concluded hy the decision inthe case of Dingiri Menika v. Dingiri Menika,1 and gives judgmentdismissing the plaintiffs’ claim on the footing that the deed inquestion in this case was revocable. He, however, thinks that thedecision in Dingiri Menika v. Dingiri Menika 1 is not likely to besupported by a Full Bench of this. Court, and suggests the referenceof this appeal to a Full Bench. The same suggestion was made tous in the course of the argument by counsel for the appellants.
In Dingiri Meriika v. Dingiri Menika 1 this Court followed the law
as laid down in two of the most authoritative and time-honoured
text books of what is known as the Kandyan law, namely,
Armour’8 Grammar of the Kandyan Law and Sawyer’s Digest. Withreference to these works, the District Judge says that they “ axenothing more than collections of special cases, from which we haveto deduce principles. ” This observation, whether it is merited ornot, does not appear to be applicable to at least that portion of thesebooks that treat on the subject of the revocability of deeds of gift.
With reference to that, it is laid down, not as a mere deduction fromdecided cases, but as an axiom of positive law, as follows: —
‘‘ All deeds of gift, excepting those, made to priests and temples,whether conditional or unconditional, are revocable by
the donor in his lifetime Gifts to children, if
revoked, give the donee no claim to compensation.
There have been numerous cases in which Judges have indulgedin speculation as to the true meaning of this plain and simple rule,and have been at pains to. save deeds from its supposed rigour orlaxity. No less than twelve cases will be found collated by Middle-ton J. in his judgment in the case of Tikiri Kumarihamy v. De Silva 2,
There is great conflict of diets in these cases. I should, however, liketo refer to one of them,"Bolonga v. Punch? Mahatmaya.3 There, sofar back as 1868, a Bench composed of three Judges said:“It is
impossible to reconcile all the decisions as to the revocability ornon-revocability of Kandyan deeds, but the Supreme, Court thinks
i 9 N. L. B. 131..‘1 (.1909) 12 N. L. R. 74, 78,
» Bam. (1863-1868) 195.
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Ram Menika~v. BandaLekam
it clear that the general rule is that such deeds are revocable, and also,,before a particular deed is held to be exceptional to this rule, itshould be shown that the circumstances which constitute non-revoca-bility appear most clearly on the face of the deed itself. The wordsin the present deed as to services continued to be rendered by thedonee do not appear to the Supreme Court to be sufficiently clear andstrong.” This dictum strikes the keynote of the situation. It impliesthat if it was clear that the deed in question had been given for futureservices, and those services had been actually rendered, the Courtwould have inclined towards pronouncing against revocability. Theposition appears to me to be simply this. If a deed is given inconsideration of something to be done in future by the donee, andthat thing is done by him, being induced thereto by the giving of thedeed, it would, to say the least, be inequitable to allow such a deedto be revoked. Such a deed would, in fact, not fall within the categoryof donations. But where a deed is given as a return forsomething already done by the donee for the donor, or in considera-tion, so to say, of a marriage that has already taken place, or even incontemplation of a marriage, the donor being under no legal liabilityto give it, such a deed is obviously a deed of gift, and the so-calledconsideration in it is no more than a mere inducement—a motiveactuating the. donor to exercise his generosity in the way he does.The case of Ukku v. Dintuwa 1 is of the former class. There the firstdefendant promised the plaintiff that " if she would marry his son,he would execute a deed making some provision for her. ” On thefaith of this promise the plaintiff married the first defendant'sson, and the first defendant executed the promised deed. The caseof Dingiri Menika v. Dingiri Menika – belong to the second classmentioned above. The gift is expressed to be made ” in considera-tion of the fact that the donor’s son was, according to the custom ofthe country, to be married to Dingiri Menika and conducted home.There is nothing To show that the gift is, wholly or partly, a reasonor inducement to contract the marriage'. Actuated by the fact ofthe approaching marriage the donor makes a gift to his prospectivedaughter-in-law. It is said that this is a dowry, and that dowry isusually the inducement agreed upon, in the course of negotiationsfor a marriage, for contracting the marriage. That may be so insome cases, but the proposition is not one of universal application.A dowry may be a spontaneous and freewill gift by a parent to thecontracting parties. It may even come as a surprise on the donees.Each case must depend upon its own circumstances. In the presentcase all the material that we have before us is that at (not before) themarriage of Ram Menika the donor on the deed in question promisedto give Ram Menika lands of the value of Rs. 1,000, and after themarriage the donor donated the lands promised. There is nothingto show that this promise was, wholly or partially, the inducement1 1 S. C. C. 89.3 9 N. L. R. 181.
to contract the marriage, for aught that appears on the record,it was a freewill gift, the motive for it being the marriage thatat the time of the promise was taking place. When the respectivefacts of the two cases—Ukku v. Dintuwa 1 and Dingiri Menika v.Dingiri Menika2—are considered, there would appear to be noconflict between the two.
I may add that in these Kandyan donations it is often stated thatthey .are made in consideration of past services, or marriages thathave already taken place. The word “ consideration ” is here usedin a somewhat misleading sense. For a correct conception of theterm “ consideration ” we have to go to the English law. TheRoman-Dutch law does not help us. Under the English law a pastconsideration is insufficient to support a promise. As stated byAnson in his work on The Principles of the English Law of Contract(page 99), a past consideration is a “ mere sentiment of gratitude orhonour prompting a return for benefits received; or, in other words,it is no consideration at all. ”
For the reasons given I am not prepared to refer this appeal to afuller Bench. I would dismiss it.
I concur. There is no evidence before us to show that thetransfer of the property was other than a voluntary gift.
1lam Menikav. BandaLelearn
RAM MENIKA et al. v. BANDA LEKAM et al