GUNASEKARA, 3.—Kirihamy v. Sadi Kumarihamy
Present: Gunasekara, J., and Sansoni, J.S. KIRIHAMY et al., Appellants, and SADIKUMARIHAMY, Respondent
S. G_. 843—D. G. Kandy, 46bl/P
Kandyan Lam—Donation—“ Dowry ” given by father to daughter subsequent to latter'smarriage—Itevocability.
Under Kandyan Law, if a patent donates imir ovable property to his daughtersome time after the latter’s marriage, the deed of gift is revocable if there is noevidence that it was given in pursuance of a promise made before the marriage.In such a case, the mere fact that the deed states that it is given “ for and inconsideration of tie marriage ” and “ by way of dowry ” can make no difference.
jAjPPEAL from a judgment of the District Court, Kandy.
T. S. Dissanayake, for 1st to 7th and 10th Defendants-Appellant.
N.E. Weerasooria, Q.G., with B. S. C. Rahmtte, for Plaintiff-Respondent.
Cur. adv. vult.
April 7, 1959. Gunasekara , J.—
This is an appeal from a decree for partition in an action institutedunder the Partition Act, No. 16 of 1951. The subject of the decree is apiece of land known as Kahatagahagodawatta, 7 acres and 29 perches inextent, depicted as lots 1 to 7 in a plan (marked X) that was made for thepurpose of the action.
It appears that Kahatagahagodawatta was sold and transferred by theCrown on the 18th May 1863 to a person named Kirihamy and that histitle eventually devolved on the 1st defendant on the 29th November1901. The property is described in the Crown grant and in later deedsas being 6 acres 2 roods and 26 perches in extent and is so described in theschedule to the plaint. On the 25th February 1928 Kirihamy sold andtransferred to Tikiri Banda Nugawela, by the deed P9, a defined extentof 2 acres 2 roods and 25 perches out of this property. According to theease for the plaintiff the portion so transferred is represented by lot 7 inthe plan X, though that lot is only 2 acres, 1 rood and 11 perches in extent.On the 19th December 1932, by the deed PI, the 1st defendant conveyedto his daughter Punchi Etana “ an undivided two acres in extent towardsthe West ”, and the plaintiff claims that she has succeeded to PunohiEtana's title and that this interest has accordingly devolved on her. Onthe 7th September 1934, by the deed 1 D13, the 1st defendant conveyedthe rest of the property to the children of his daughter Ukku Etana
GUNASEKAKA, J.—Kirihcrfny e. Sadi Kumariharmf533 –
(the 2nd defendant) subject to a life-interest in her favour. Subsequently,in 1944, an extent of 3 roods was compulsorily acquired by the Crown for a'public cemetery. According to the case for the plaintiff the portion so'acquired is that depicted as lot 6 in the plan X, the extent ofwhich however is 3 roods and 14 perches.
The learned district judge has made order allotting lot 6 to the.Crownand lot 7 to the 8th to 14th defendants as the heirs of TikiriBanda Nugawela, and declaring the plaintiff to be entitled to an “ un-divided extent of 2 acres from the west out of lots 1,2,3,4 and 5 ” and the3rd to 7th defendants (who are the children of the 2nd defendant) entitledto “ the balance extent of 2 acres 4 perches ” subject to a life interest infavour of the 2nd defendant. The 1st to 7th defendants and the 10thdefendant have appealed against this order.
It is manifest that the portion that was acquired for a cemetery was notowned in common by the Crown and the plaintiff or any other person.Nor was the defined portion that was sold to Tikiri Banda Nugawelaowned in common by his heirs and the plaintiff or any of the other parties)to the action. The learned judge’s order in respect of lots 6 and 7 thereforecannot stand and must be set aside.
Punchi Etana, the grantee on PI, was the wife of one Don Pieris’whom she had married on the 10th August 1931. The deed purports tobe a deed of gift. It describes the 1st defendant as the donor and his •daughter Punchi Etana as the donee, and states that the donor “ for andin consideration of the natural love and affection ” which he has for thedonee and “for and in consideration of the marriage” of the donee conveyscertain property to her “ by way of dowry ”. Punchi Etana died on the23rd December 1935, and on the 29th July 1936, by the deed 1 D7, the1st defendant purported to revoke the deed PI. The learned districtjudge holds that it is irrevocable and that the purported revocation isnot valid.
The 1st defendant and Punchi Etana were persons governed byKandyan Law, under which, subject to certain exceptions, donations arerevocable. The ground of the learned district judge’s finding that thedeed PI is irrevocable is that it falls within the principle of the decision inKandappa v. Charles Appu el al.1, that “.where the parents give a deed asdowry before or at the time of marriage, or even after marriage, if it be inpursuance of a promise made before marriage the deed should be regardedas a deed for valuable consideration and so irrevocable ”: or, in otherwords, that such a deed is irrevocable not for the reason that it is adonation of a kind that is an exception to the rule as to revocability, butbecause it. is not a donation at all. There is no evidence that the deed PI,which was executed 1 year and 4 months after the grantee’s marriage,was given in pursuance of a promise made before marriage. It is, there-fore, not within the principle of the decision in Kandappa v. ChartedAppu, et al. x, but “ it is a deed of gift in the real sense of the term, as thereis no consideration in law but a mere inducement or motive actuating the
. 1 (1926) 27 N. L. B. 433.
2* 3. N. R 8597 (8/59)
534Ramasamy Pittai o. Commissioner for Registration of
Indian and Pakistani Residents
donor to exercise his generosity The mere fact that the deed describesthe gift as ‘1 dowry ’ ’ can make no difference, for, in the words of Pereira, J.in Ram Menika v. Banda Lekam 1, “ a dowry may be a spontaneous andfreewill gift by a parent to the contracting parties For these reasonsI hold that the deed PI was validly revoked by the deed 1 D7.
The order made by the learned district judge must be set aside and theplaintiff’s action must be dismissed. The plaintiff must pay theappellants’ costs in this court and the court below.
Sansoni, J.—I agree
S. KIRIHAMY et al., Appellants, and SADI KUMARIHAMY, Respondent