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Present: Akbar J.
TIKIRA «. TIKIRA.43—C. B. Kandy, 4,581.
Kandyan law—Deed of gift—Revocation for failure ■ to maintain—Mother and son—Compensation for improvements.
Where, under the Kandyan law, a gift was revoked becausethe donee, who was a child of the donor, failed to observe thecondition of the gift as regards maintenance,—’
Held, the donee was not entitled to compensation for improvements effected on the land donated.
riiHjfi plaintiff claimed the value of improvement effected by-*■ him on a land which was gifted to him by his mother,the second defendant. Subsequently she revoked the gift on theground that the plaintiff had failed to carry out the conditions ofthe gift, viz., to render assistance, and sold the land to the firstdefendant. At the trial the plaintiff admitted the title of thefirst defendant. The learned District Judge dismissed theplaintiff’s action.
N. E. Weerasooria, for plaintiff, appellant.—Roman-Dutchlaw, and not Kandyan law, should be applied in this case. TheDistrict Judge having held that the plaintiff was a bona fide possessorshould have given him compensation. If it is claimed by thedefendant that Kandyan law applies, he should have raised anissue on the point.
' Even under the Kandyan law compensation would be payable.See Tikiri Banda v. Banda,1 a Full Bench case.
This deed is not revocable. See clause in the deed “ The heirs…. of me the said Dotu shall cause no dispute whatsoever
by word or deed hereafter contrary to this donation. ”
Defendant alleged non-observance of the condition in the deed,and it was for him to prove such non-observance.
Even if this deed is revocable, it was wrongly revoked, and theplaintiff is entitled at least to compensation for improvementsas a bona fide possessor.
Wendt, for defendant, respondent.—The parties are Kandyansresident in the Kandyan provinces; so, clearly the Kandyan lawis applicable. It was for the donee, as plaintiff in the case, if hecontended that Roman-Dutch law should apply, to raise an issueon the point to prove his case completely.
1 3 S.C. C. 31. .
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Gifts to a child when revoked give the child no claim to com-'pensation (Perera’s Armour, p. 91).
Where the caase of revocation is non-fulfilment of the conditionof maintenance contained in the deed, no compensation is payable•to the donee on revocation (Perera’s Armour p. 92).
Tikiri Banda v. Banda(supra) is distinguished from the present caseas it was not the case of a gift to a child, and the revocation wasapparently capricious (see Berwick J.’s judgment). The abovepassages in Armour were also not before the Court in that case.
This deed of gift is obviously revocable. See clause" And after
my death the, said two children may hold and possess
absolutely and for ever free of dispute as paraveni. ”
Here the deed was given on an executory and not an executedcondition; therefore it was revocable. Further, the burden of. proof is on the party alleging performance of the condition. SeePerera’s Collection, pp. 38 and 39.
June 4, 1929. Akbar J.—
In this case the plaintiff-appellant appeals from a judgmentdismissing his claim for the value of improvements effected by himon a land which was gifted to him by his mother, the second defend-ant in this case (now dead), but the deed was afterwards revokedby her under the Kandyan law and the land sold to the firstdefendant.
It is clear from the plaint that he based his claim as a bonafide possessor under the Roman-Dutch law. In the answer thedefendants denied that any cause of action had accrued to himto recover from them the value of the improvements. At thetrial the plaintiff admitted the title of the first defendant, and thevalue of the improvements was also admitted as Rs. 77'75.
The following issues were framed :—
Did plaintiff possess the land and improve same ?
Was such possession bona fide ?
Is the plaintiff entitled to any compensation for improve-
After evidence was led, Counsel for the first defendant, seconddefendant being then dead, cited the Kandyan law from Mr.Hayley’s book, page 316. In the judgment the Judge statesthat if the parties were governed by the Roman-Dutch law theplaintiff would be entitled to compensation as a bona fide possessor,but that under the Kandyan law the party will not be entitledto any compensation for improvements if the revocation of thedeed of gift was due to the failure of the donee to fulfil thecondition of the deed. He held that as the deed of revocationspecifically stated that plaintiff and his brother had failed to
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render their mother any assistance the plaintiff was not entitledto succeed. Bofore I prooeed further, I may mention that in myopinion, on the authorities whioh I shall montion later, it is dearthat the deed of gift in favour of the plaintiff and his brotherby his mother (P 1) is revocable under the Kandyan law. Thedeed (1* 1) is in the following terms:—
• “ I . . . . being old, with the object of rooeiving allassistance, and suocour during my lifetime, do herebydonate, grant, and oonvey by way of gift with my goodwill and pleasure unto my most dutiful and belovedtwo children Yamanegedera Tikira and Ukkuwa, both ofRanawana aforesaid, all that eastern half share in oxtent1 timba sowing out of the portion in extent 8 lahaspaddy sowing below the minor road towards the southout of the land called Kasakaragedera Kotuwa of 1pela paddy sowing in extent, situate at Ranawana, &c.,which said 1 timba paddy sowing extent is bounded,&c., together with the plantations and everything thoreon,valued at Rs. 70, which said premises have been hold andpossessed by me free of dispute upon the annexodregistered deed of gift No. 2,726 dated January 10, 1868,attested by Warakagoda Ranhamy, Notary.
“ Therefore the heirs, Ac., of me the said Dotu shall oause nodispute whatsoever by word or deed hereafter contraryto this donation; and my ohildren the said Tikira andUkkuwa shall during my lifetime from this day rendorme all assistance and succour ungrudgingly; and aftermy death shall bury my dead body in a . fit manneraccording to customs of the world; and shall alsoperform all religious rites and oeremonies for tho reposeof my soul in the next world. And after my death thesuid two children Tikira and Ukkuwa, their heirs, &c.,may hold and possess the aforesaid land and plantationabsolutely and for ever free of dispute as paraveni;which I do hereby authorize}. ■”
Tho gift does not state that it is irrevocable. Further, the onlycondition is that the heirs, exeoutors, or administrators of thodonor are not to cause any dispute whatsoever; and that it isonly after the donee’s death the two donees are to hold and possossthe land absolutely and for ever free of dispute as paraveni.Therefore, on the face of the deed I hold on the authority of thevarious decisions of this Court, namely, Mvdiyanae v. Banda,1Kirihenaya v. Jotiya,* Ukku Banda v. Paulia Singho,8 that tliisdeed is revocable by the donor. Indeed, as I have stated, tho1 16 X. L. R. 53.• 24 X. h. R. 149.
* 27 N..L. R. 449.
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plaintiff has admitted the first defendant's title in this case. Thepassage on which the Commissioner bases , his judgment, quotedfrom Mr. Hayley’s book, does not, however, give the full passagefrom Mr. Perera’s Armour. The full passage is as follows:—
“ All deeds or gifts, ” says Sawers, “ excepting those made to priestsand temples, whether conditional or unconditional, are revocable bythe donor in his lifetime, but should the acceptance of the gift involvethe donee in any expense, he, the donee, must be indemnified, on thegift being revoked, to the full amount of what the acceptance of thegift may have cost him, either directly or by consequence, but thisrule applies only to gifts made by laymen. Moreover, this rule is to beunderstood to apply only to gifts of land, or of the bulk of the donor’sfortune, of goods and effects: as presents if given out of respect orfrom affection at the moment (or in thankful acknowledgment of abenefit or service rendered to the donor) are not rovocable. And inrespect to the claims of indemnification by the donee, on the gift beingrevoked this is only to be understood to apply to the gifts made tostrangers or other persons, not heirs by law to the donor; for gifts tochildren, if revoked, give such a donee no claim to compensation ; butwith this exception—if a parent having several children makes a -donation of a principal part of his lands or effects to one of his childrenthose lands or effects being burthened at the time with debts, at thedonee paying the debts, as by mortgage or otherwise, and the doneepaying the debts or dismortgaging the property that had been so given ;should the parents afterwards revoke the gift and bequeath his landsand effects equally among his children or legatees; in this case, theformer donee, who paid the debts or dismortgaged the property ofthe donor, must be indemnified by the other heirs or legatees in pro-, portion to the alteration made by the parent in the former gift, by thesubsequent disposal of the property. It being however premisedthat the former donee had not already derived so much profit fromthe property, as was adequate to indemnify him for his expenses.With respect to bequests, and testamentary disposals, whetherdocumentary or verbal, the right to revoke or alter them remainsabsolutely with the devisor, so long as he retains his life and reason. ”
According to this authority no claim for compensation is to beallowed when the donor, as in this case, makes a gift to his childrenand subsequently revokes it.
The rule requiring payment of compensation is only to apply'when the gift is 'made to a stranger or other person who is notan heir-at-law. So that the plaintiff’s claim in this case is notrecognized under the Kandyan law.
The case of Tilciri Banda v. Banda1 was quoted as a contraryauthority by the appellant, but it will be seen that in thatcase this point was never raised. In fact, it will be seen fromBerwick J.’s judgment that he refers to the probability of the deedof gift in that case having been revoked “ capriciously or spite-fully ” ; nor was the point raised in the later case of Mudiyanse v.Banda (supra). One other point remains to be determined. It wasstrongly urged by the appellant’s Counsel that no issue on the
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applicability of the Kandyan law was raised at the trial and that,therefore, this case should be sent back for decision on the law.I do not think any useful purpose can be served by this course,because I think the third issue is wide enough to include thisquestion.
The plaintiff should have known that this case must be governedby the Kandyan law (see the judgment quoted above ofBerwick J. in Tikiri Banda v. Banda (supra)). Further, under theKandyan law the burden seems to be on the plaintiff (see Perera’sCollection, pp. 38 and 39). The following passage occurs in thisbook :—■“ The deed in favour of the plaintiff was granted on aspecific condition, not executed but executory. There can be nodoubt, therefore, that a failure in the performance of that conditionmust defeat the instrument; it was for the plaintiff to show areal bona fide performance of that condition. In this he hascertainly failed. ” For these reasons I think that the judgmentof the trial Judge was correct. I hold accordingly (but not for thereasons stated by the Judge) and dismiss the appeal with costs.
TIKIRA v. TIKIRA