116-NLR-NLR-V-59-PODIMENIKE-KUMARIHAMY-Appellant-and-ABEYKOON-BANDA-Respondent.pdf
Poditncnihc KumarUtamy v. Abcykoon Banda
543
1956Present :5innefamby, J., and L. W. da Silva, A.J.
PODIMEXIKE KTOIAB-IHAMY, Appellant., and ABEYIvOONBAJfDA, Respondent
.S. C. dOS—D. C., Kcgalle, SfiGl
Kandyan Laic—Donation—Services to be rendered by donee—Bevocabilily of gift.
In a Knmlyr.n i!ced of gift executed in 1929 by a father in favour of his-daughter in consideration of services already rendered, tlio donor enjoinedon the donee the performance of futuro services not merely during his lifetime but also after his death. In 1931 the donor revoked tho gift. Tho donee- rendered sorvices to the donor continuously till a few weeks beforo tho donor’sdeath in 1940.
544L. W. De SILVA, A-J.—Podimenike Kutnarihamy v. Abeykoon Banda .
Held, that the revocation of the gift was valid, firstly, inasmuch as thore werefurther services to be rondorod by tho donee, and it was thus solely within thediscretion of the donor to revoke his gift. Secondly, there was nothing what-ever on the face of the deed to mako it exceptional to the genoral rule ofroyocability..-
^iPPEAl from a judgment of the District Court, Kegalle.
II. W. Jayeicardene, Q.C., with T. B. Dissanayake and P. Ranasinyhe,for the 2nd defendant-appellant..
O. T- Olegasegarem, for the plaintiff-respondent-.
Cur. adv. vidl.
October 10, 1950. L. W. de Silva, A.J.—
This appeal is concerned with the revoeability of a Kandyan deed ofgift which is not affected by the Kandyan Law Declaration and Amend-ment Ordinance Ko. 39 of 1938. The immovable property, to whichthe plaintiff-respondent has sought a declaration of title, was purchasedby Kalukohowattegedera Loku Banda in 1S97 on the deed Pi. Hegifted the property to his eldest daughter Heenmenike on the deed49512 of 1929 (P2), and thereafter in 1931 revoked the gift by grantingthe deed 7600 (2D3) in favour of his younger daughter the appellant'shusband. The donor remained in possession of the property till hisdeath in 1940. Thirteen years after the revocation, the donee Heen-menike conveyed the property on P4 of 19-14 to the plaintiff-respondentwho instituted this action in 1953.
The donation P2 is in the following terms :—
“ f … in consideration of the care and help rendered to mefor a long time up to now and with the object of obtaining hercontinued care and help in the future have lierebj' agreed with myeldest daughter Heenmenike Kumarihamy to gift and donate untoher the premises described in the schedule hereto annexed ….
Therefore the said donee shall render to me Loku Banda the donoreverjr care and help during my lifetime, bury my remains with respectafter my death, and perform all religious rites as ordained by ourBuddhist religion for the repose of my soul, thereafter the said doneeand her heirs, executors, administrators, assigns, shall have and holdthe said lands and premises for ever or do what they like therewith ”.
The sentence “ and perform all religious rites as ordained by our Buddhistreligion for the repose of my soul ” is a mistranslation (though notmaterial for our decision) of the Sinhalese for “ and perform all suchBuddhist customary rites and ceremonies as are observed in memoryof the dead ”.
The first defendant, who is the second respondent to this appeal,claimed no interest in the property. The appellant claimed only a lifeinterest since the land in issue is property acquired by her deceased
L. W. De SILVA, A.J.—Podimcnike Kumarthamy v. Abcykoon Banda
54S
husband. The learned District Judge entered judgmenfr'for tlie plaintifF-respondent. Tiie basis for his conclusion is that, according to the oralevidence, Hcenmenike had looked after her father Loku Banda and •rendered him selfless and invaluable services over a long period of yearstill a few weeks before his death, and the father had every reasonto be grateful to his daughter. The learned Judge purported to followthe decision in HapumaU v. Ukkua 1. In that Court of Bequests case,Howard, C.J., held that the motive for the gift was the implied promise" on the part of the defendant to render the plaintiff assistance andnecessary succour during her lifetime, and the Commissioner’s finding offact that such services were actually rendered was not disturbed.
Beamed Counsel for the respondent sought to support the judgmentof the District Court for the reasons stated in HapumaU v. Ukkua1,which, we respectfully venture to state, does not lay' down a principleof Kandyan Law. Whatever may be said in support of the decision inHapumaU u. Ukkua1, the facts in that case are clearly distinguishable.There, all the services had been performed. Here, according to the termsof the gift P2, the donor Loku Banda enjoined on his daughter theperformance of services not merely during his life time but also after hisdeath. The general rule, therefore, as stated in Bologna v. Pun chiMahatmeya 2 applies :—
“ The Supreme Court thinks it clear that the general rule is thatsuch deeds arc revocable, and also that before a particular deed is heldto be exceptional to this rule, it should be shown that the circumstanceswhich constitute non-revocability appear most clearly on the faceof the deed itself. The words in the present deed as to services‘continued to be rendered by the donee’ do not appear to theSupreme Court to be sufficiently clear and strong.”
A donation very similar in terms to P2 was considered in WijeysingJiev. dloh oily3 by Wijcyewardenc J. who followed the rule enunciated inBologna v. Punchi Jlahalmcya- and held that the questioned deed wasrevocable because, although the donees had performed up to date for aperiod of twenty years the services agreed upon, there were furtherservices to be performed by them in the future. The revocation evenafter such a long lapse of time was not a matter that was taken intoaccount since notions of natural equity cannot override the Kandyanlaw on the subject.
On a consideration of all the decisions and references contained thereincited to us at the argument, we are of the opinion that the gift P2 wasrevocable, firstly, in as much as there were further services to be renderedby the donee, and it was thus solely within the discretion of the donorto revoke In's gift. Secondly, there is nothing whatever on the face ofthe deed to make it exceptional to the general rule. The learned DistrictJudge lias overlooked these two decisive factors while giving undueweight to the value of services already rendered to an ungrateful father..
J (1914) iS N. L. R. 346.3 (1S63-6S) Hamanalkan’s Reports 19.5..
1 (1913) 4-1 X. L. R. S49.
54G; Juliana D amine v. Don Thomas.
The conclusion, we have reached is also supported by the decision of theCollective Court in JPuncMralle and Appuhamy v. Punchiralle GanAratchille1, where the deed of gift was also for services already renderedand services to be rendered. The judgment of 1S57 of the CollectiveCourt (also appearing in Austin’sTteports * without a recital of the facts)is as follows :—'
“ The Supreme Court feels itself bound to follow former decisionswhich establish the doctrine that deeds as well for services previouslyrendered as for those to be rendered in future are by the Kandyan lawrevocable.’ ’
We set aside the judgment and decree of the learned District Judgeand declare the appellant entitled to a life interest in the propertyin suit with costs here and in the court below.
SnnfETAJiBY, J.—I agree.
Appeal allcnved.