Sirisena v Eyelyn de Silva (Dissanayake,. J.)
EYELYN DE SILVA
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. NO. 679/90 (F)
C. KANDY 13591/LMARCH 1 ANDMAY 29, 2002
Kandyan Law Declaration and Amendment Ordinance, sections 4((1) and 5 -Revocation of deed – Donee dead at that time – Property devolved on minors- Interests of minor – Are they protected? – Is sanction of court necessary? -Contingent interest.
Under the Kandyan Law the heirs be they minors or majors get no bet-ter interest than the original donee and they all get only a contingentinterest. Therefore once the deed of gift is revoked the said contingentinterest terminates and the donor acquires title. Sanction of court is notnecessary.
The Kandyan Law reserves to the donor the right to revoke a gift dur-ing his lifetime and without the consent of the donee or any other person.
APPEAL from the judgment of the District Court of KandyCases referred to:
Malliyav Ariyawathie – 65 NLR 145
Silinduv Akura – 10 NLR 193
Appuhamy v Holloway – 44 NLR 276
Mutu Banda and another v Gunaratne – (1999 3) Sri LR 1
Heneya v Rana -1 SCC 47
J.C. Boange for defendant – appellant.
A.A. de Silva, PC., with Piyal Munasinghe for plaintiff-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
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28 June 2002SOMAWANSA, J.
The facts in this case are: the 2nd defendant who was sub- 1jected to Kandyan Law gifted the property in suit to one P.B.Dissanayake by deed No. 16874 dated 3.12.1951 marked P1/D2and the said P.B. Dissanayake by deed No. 21170 dated20.05.1955 transferred 1/2 share of the land to Leelawathie ofwhich there is no dispute. The said P.B. Dissanayake died on
leaving as his heirs his widow and two children whoare the 1st to 3rd plaintiffs-respondents. However 16 days after thedeath of P.B. Dissanayake by deed of revocation No 2251 dated
marked D3, the 2nd defendant-appellant revoked thedeed of gift marked P1/D2 in respect of the undisposed 1/2 shareof the said P.B. Dissanayake and by deed of gift No. 33 dated16.02.1974 marked D4 gifted the said 1/2 share in the land to the1st defendant-appellant.
The plaintiffs-respondents challenged the said revocation onthe basis that on the death of P.B. Dissanayake all his rights in theland passed on to his heirs, the two children and the widow and thetwo children being minors, permission of Court had to be obtainedto deal with their property, which the 2nd defendant-appellant failedto do. The claim of the 1st defendant-appellant is based on the 20ground that under Kandyan Law a deed of gift could be revoked bythe donor and therefore he claimed the said 1/2 share upon thedeed of gift No. 33 marked D4.
At the commencement of the trial, 5 admissions were record-ed and 4 issues were raised on behalf of the plaintiffs-respondentswhile 6 issues were raised on behalf of the defendant-appellant.Subsequently another additional issue was raised on behalf of theplaintiffs-respondents. At the conclusion of the trial the learnedAdditional District Judge by his judgment dated 18.07.1990 held infavour of the plaintiffs-respondents and deeds marked D3 and D4 30were declared to be invalid deeds. It is from the said judgment thatthe defendants-appellants have lodged this appeal.
At the hearing of this appeal the only matter that was arguedwas whether the 2nd defendant-appellant who is subject toKandyan Law could revoke a deed of gift that he executed without
q/Sirisena v Eyelyn de Silva (Somawansa, J.)257
the sanction of Court if rights of minors are affected by such revo-cation.
It was contended by the counsel for the defendants-appellantsthat the heirs could only get a contingent interest and once thedeed of gift is revoked the said contingent interest is terminatedand the donor re-acquired title. I am inclined to think that there isforce in this argument. It is common ground that the 2nd defendant-appellant was governed by the Kandyan Law therefore theKandyan Law Declaration and Amendment Ordinance become rel-evant and applicable.
Section 4(1) of the said Ordinance, No. 39 of 1938 provides:
“Subject to the provisions and exceptions hereinafter con-tained, a donor may, during his lifetime and without the con-sent of the donee or of any other person, cancel or revoke inwhole or in part any gift, whether made before or after thecommencement of this Ordinance, and such gift and anyinstrument effecting the same shall thereupon become voidand of no effect to the extent set forth in the instrument of can-cellation or revocation:
Provided that the right, title or interest of any person in anyimmovable property shall not, if such right, title, or interest hasaccrued before the commencement of this Ordinance, beaffected or prejudiced by reason of the cancellation or revoca-tion of the gift to any greater extent than it might have been ifthis Ordinance had not been enacted.”
Section 5 stipulates the deeds of gift which cannot be revokedand in the present context it is unnecessary to dwell in such mat-ters except to advert to section 5 (1) (d) which states –
5. “(1) Notwithstanding the provisions of section 4 (1), it shallnot be lawful for a donor to cancel or revoke any of the follow-ing gifts where any such gift is made after the commencementof this Ordinance.
any gift, the right to cancel or revoke which shall have beenexpressly renounced by the donor, either in the instrumenteffecting that gift or in.any subsequent instrument, by a decla-ration containing the words-<38o@ cp3-£5033:s><§»
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$z*o8@” or words of substantially the same meaning or, if thelanguage of the instrument be not Sinhala, the equivalent ofthose words in the language of the instrument:”
However on an examination of the deed of gift No. 16874marked P1/D2 it appears that the donor the 2nd defendant-appel-lant had not renounced the right of revocation of the gift granted bythe said deed. This fact is admitted by the plaintiffs-respondentsand therefore even the provisions contained in section 5 (1)(d) ofthe Kandyan Law Declaration and Amendment Ordinance will have sono application to the said deed. Therefore there can be no doubtthat the donor during his lifetime and without the consent of thedonee or any other person could cancel or revoke in whole or inpart of any gift and such revocation would be valid. The question atissue in the instant case is whether it could be done so without thesanction of Court if the rights of minors are effected by such revo-cation as it happened in this case.
It is common ground that the revocation of the deed of giftmarked P1/D2 was done after the death of the donee, that at thetime the said deed of gift was revoked the two children of the 90deceased donee were minors and that on the death of the doneewhatever rights the donee had passed on to the two minor childrenand the window. It is contended that there is no provision made inthe Kandyan Law. For a situation of this nature therefore it wasvehemently argued by the counsel for the plaintiffs-respondentsthat Court as the upper guardian is calle'd upon to step into the vac-uum so as to protect the interest of the minor children. Hence in theinstant case it was incumbent on the part of the 2nd defendant-appellant to have obtained permission of Court to deal with therights inherited by the minor children on the death of their father the 100donee.
It would appear that this is an attempt to incorporate principlesof the the common law to fill the said void in the Kandyan Law. Insupport of this contention the counsel for the plaintiffs-respondentscited Malliya v. Ariyawathie and Silindu v. AkuraS2) In all thesecases Court took the view that the rights of minors needed to beprotected by their guardian and if there is no guardian by theirupper guardian the District Court. It appears that following the deci-sions cited above, the learned District Judge has taken the view
QfySirisena v Eyelyn de Silva (Somawansa, J.)259
that in the instant case too the deed of revocation has been effect-ed without the sanction of Court and consequently the subsequentgift granted by the 2nd defendant-appellant to the 1 st defendant-appellant is invalid and therefore the 1st defendant-appellant wasnot entitled to the 1/2 share he was claiming on D4. However inboth these cases it was not the Kandyan Law that was consideredbut the common law. Thus it appears that the learned AdditionalDistrict Judge had proceeded on an erroneous basis to incorporateprinciples of Roman Dutch Law into Kandyan Law.
In Appuhamy v Holloway<3) a Kandyan deed of gift wasrevoked by the donor on the ground that the donee had failed togive him necessary assistance. Thereupon the donor gifted theproperty to A. Subsequent to the deed of revocation the propertywas transferred to B by the heirs of the original donee and B reg-istered his transfer prior to the deed of gift to A held, that B’s trans-fer did not prevail over the gift to A by reason of prior registration.
In the case of Muthubanda and Another v Gunaratne<4> thefacts were the plaintiff-respondent sought a declaration of title tothe land in question. His position was that the original owner oneHB gifted the corpus by deed No. 59287 of 10.6.1971 to one A oneof his predecessors in title and subsequently he became the owner.The defendant-appellant contended that HB was a Kandyan whoseproperty rights are governed by the Kandyan Law Declaration andAmendment Ordinance and the said HB. had not renounced theright of revocation and that the said deed of gift was revoked bydeed No. 31294 of 21.10.1976. thereafter the said HB had by deedof transfer No. 31295 of 24.10.1996 transferred same to the 2nddefendant-appellant.
The District Court entered judgment for the plaintiff-respon-dent. On appeal it was contended that the Kandyan Law is silent onthe question whether there can be a revocation of a deed when therights on the deed have already passed to a third party.
Held – (1) The Kandyan Law reserves to the donor the right torevoke a. gift during his lifetime and without the consent of thedonee or any other person and therefore it is not open for thedonee acting unilaterally to deny the donor a right that is reservedunder s. 4(1), and s. 5 (1) and provides for the renunciation of the
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 2 Sri L.R
right to revoke, which right should be expressly renounced by thedonor, either in the same deed or by any subsequent instrument.
(2) S. 4 (1) and s. 5 (1) read together clearly spell out thedonors right to revoke, and the donee by a subsequent retransfer isoto a 3rd party could not defeat the donors right to revoke a gift dur-ing his lifetime and without the consent of the donee or any otherperson.
In the light of the two decisions that I have cited and the pro-visions contained in section 4 (1) of the Kandyan Law DeclarationAmendment Ordinance, I am inclined to take the view that underthe Kandyan Law the heirs be they minors or majors get no betterinterest than the original donee and they all get only a contingentinterest. Therefore once the deed of gift is revoked the said contin-gent interest terminates and the donor re-acquires title. As section 1604(1) of the Kandyan Law Declaration Amendment Ordinancespecifically states that the consent of the donee or any other per-son is not required covers the contingent rights of the heirs of thedeceased and they forfeit their rights on revocation of the deed ofgift by the donor.
The counsel for the plaintiffs-respondents have also drawn ourattention to some factual aspect in this case which he says is rele-vant. He contends that the 2nd defendant-appellant gifted theproperty to his adopted son P.B. Dissanayake taking into consider-ation not merely the love and affection towards him but more i?oimportantly expected assistance and care for himself. It is conced-ed, that the gift was made on 3.12.1951 and the said gift wasrevoked on 16.01.1966, sixteen days after the death of the donee.Thus it could be said that for 15 years the donee would have sup-ported the donor. This line of thinking is strengthened by the factthat in the deed of revocation marked D3 the donor does not statethat the revocation was done due to ingratitude or for not giving anyassistance by the donee. However this is only conjecture and on anexamination of the evidence, I am unable to find sufficient evidenceto accept this contention. Be that as it may if the donor expected 180assistance and care for himself during his lifetime from the doneethen on the death of the donee during the lifetime of the donor thedonor is entitled to revoke the deed of gift as the object of the giftis defeated by the death of the donee. One must not also forget the
Sirisena v Eyetyn de Silva (Somawansa,.J.)
fact that the donor only revoked 1/2 of what he gifted to the donee.
In the circumstances the Supreme Court decision in Heneya vf?ana<5) cited by the plaintiffs-respondents where it was decidedthat a gift of land purporting to be made in consideration of assis-tance rendered and money advanced by the donee to the donorwas not revocable under the Kandyan Law will have no application 190to the instant case.
Likewise the view taken by Modder page 162 of his Treatiseon Kandyan Law 2nd Edition that when a donation is made in con-sideration of or as an inducement for a marriage to be contractedor services to be rendered then it would be inequitable to allow arevocation of the donation or again a similar opinion expressed byDr. Hayley, K.C. in his Treatise on the Laws and Customs of theSinhalese or Kandyan Law pages 310 and 311 or the viewexpressed by J. Armour who edited zSzS? zStegD on pages 1, 56,92and 93 will have no application to the revocation effected in the 200instant case as the object of the gift is defeated by the death of thedonee during the lifetime of the donor.
In view of the foregoing reasons, I am of the view that the 2nddefendant-appellant was entitled under the Kandyan Law to revokethe deed marked PI/D2 and upon the revocation of the said deedthe plaintiffs-respondents lost all rights to the property in suit.Consequently the learned Additional District Judge has come to anerroneous finding that under the Kandyan Law a deed of gift effect-ing the rights of minors could be revoked only with the sanction ofCourt. Accordingly I set aside the judgment of the learned 210Additional District Judge and dismiss the action of the plaintiffs-respondents. The appeal is allowed with costs.
DISSANAYAKE, J. – I agree.
SIRISENA v. EYELYN DE SILVA