052-NLR-NLR-V-15-BANDA-v.-HETUHAMY-et-al.pdf
( 193 )
Present: Lascelles C.J. and Middleton J.
BANDA v. HETTJHAMY et al.
290—D. 0. Kurunegala, 3,996.
Kandyan lav—Clause in deed of gift renouncing right of revocation—
Effect of:
A deed of gift containing a clause renouncing the right of revoca-tion is revocable nnder the Kandyan law, if the donee fails toobserve the stipulations subject to which the gift was made.
Middleton J.—It is anadmittedprincipleoftheso-called
Kandyan law that all deeds of gifts of lands, excepting those made•o priests and temples, are recovable during the . lifetime of thedonor. I would therefore hold that the doctrine of caveat emptormust certainly apply to allcontractsfor saleoflandin the
KandyanProvinces, andall purchasersfor valuable consideration
should be duly put upon inquiry as to their vendor's title to convey.
HE facts appear in the judgment.
Bawi, for appellants.
Sampayo, K.C., (with him H. A. Jayewardene),- for the respondent.
The following authorities were cited at the argument:Tikiri
Kumarihamy v. De SUva et;1 Unambuwe v. Junghamy;2 Modder’sKandyan Law 135; Austin’s Reports 15, 903; Pereira’s Armour 95;Molligoda v. Kepitipola;* Marshall’s Judgments 313, 320, and ',331.
Cur. adv. vult.
October 13, 1911. Lasceixes C.J.—
This case raises the much discussed question of the revocabiliityof Kandyan deeds of gift, the gift in question not being one for pastservices. The plaintiff by deed of gift dated February 6, 1906,made over the bulk of his property to his grandson. The deed wasexpressed to be made " in consideration of the love and affectionwhich I bear and cherish towards him and for his future welfare.”The deed was also expressed to be subject to the condition that thedonee should possess the property undisturbedly, ‘‘ after paying andsettling the principal Rs. 2,000 and interest thereon ” which hadbeen borrowed by the donor upon mortgage on some of the donor’sproperty. The power of revocation is renounced in the followingterms:‘‘I, the donor, have hereby promised not to revoke the
gift, and that I am not able to revoke the same. ”
i (1905) 9 N. L. R. 302; IS N. L. R. 74* (1893} 2 C. L. R. 109.
(same ease in revisit).3 (1858) 8 Lor. 24.
7J. N. A 90413 (8/50)
1811.
( 194 )
1911.
Lascxi&es
C.J.
Banda v.lletuhamy
In February, 1910, (he donee sold to the defendants the landscomprised in the deed of gift, and in June of the same year the donorrevoked the deed of gift on the grounds (1) that the donee hadbehaved with ingratitude and cruelty towards the donor in hisold age, and (2) that he had not carried out the covenant to pay offthe mortgage debt.
The District Judge, after finding that the donee had not beenguilty of cruelty and ingratitude, and that the donee had onlydischarged about Rs. 500 of the mortgage debt, upheld the revoca-tion of the donation, and entered judgment for the plaintiS for theland in dispute.
The authorities on the revocation of Kandyan deeds are set outat length and discussed in Tikiri Kumarihamy v. De Silva et al.,1where it was held that a Kandyan deed of gift in consideration of pastservices, and containing a clause renouncing the right of revocation,is irrevocable under the Kandyan law. But' in the present case thedeed is not for past services, and it was confidently asserted bycounsel for the respondent that no authority could be produced forthe proposition that such deeds, even though the power of revocationis renounced, are irrevocable.
It is difficult to extract any definite principle from the conflictingauthorities and decisions on Kandyan law, but the most logicalstatement of the principle which governs such cases, i.e.t cases inwhich the gift is in consideration of future services, is to be foundin the passage cited from Armour in 9 N. L. B. 211:—
But all conditional and unconditional gifts are not revocable; somegifts are irrevocable; for instance, if the proprietor executed a deedand thereby made over hisi lands to another person, stipulating that thedonee shall pay off the donors' debts and also render assistance andsupport to the donor during the remainder of his life, ' and if the saiddeed contains 'also a clause debarring the donor > from revoking thatgift, and from resuming the land, and from making any other disposalthereof. If the donee did discharge the said debts, he will have acquiredthereby the rights of a purchase to the lands in question; and conse-quently that deed will be irrevocable, but the donee, although heacquired the title of purchaser, will yet continue under the obligation ofrendering assistance and support to the former proprietor
On this principle if the donee in the present case had carried outthe conditions subject to which the gift was made, he would havebeen protected by the renunciation clause from having the donationcapriciously revoked; in other words, the revocation clause holdsgood only when and so far as the donee observes the stipulationssubject to which the gift was made.
Where, on the other hand, the donee has failed to carry out theconditions on which the gift was made, be cannot invoke theprotection of the renunciation clause, which was intended to takeeffect only if the stipulations in the deed were complied, with. The
» (1909) 12 N. L. B. 74.
( 195 )
principle laid down by Armour involves an examination of the deed *****in order to ascertain the true intention of the parties. In the deed Lasoblissnow under consideration, it is clear that the donor’s intention was C'J‘that the Irrevocability of the gift should depend upon the. due Banda v.observance of the stipulations subject to which the donation wasmade. I am therefore of opinion that the deed in question waslawfully revoked.
With regard to compensation, it is admitted the donee is entitledto be indemnified for disbursements made by him for the benefit ofthe plaintiff’s estate, but, as Mr. de Sampayo has pointed out, theamount of the compensation, if any, which is due cannot be ascer-tained ■ without taking a complete account of the donee’s dealingswith the plaintiff’s estate. $o‘ authority has been cited for theproposition that the defendant is liable to compensation. In theresult the appeal is dismissed with costs.
Middleton J.—
This was an appeal against an order declaring the plaintiff thelawful owner of certain land at Galgomnauwa called Pitangane-assedduma, and decreeing that he be placed and quieted in possessionof the same. The plaintiff by notarial deed of gift No. 10,322dated February 6, 1906, granted the land amongst several others tohis grandson Punchi Banda on the terms set out in the deed. Punch!
Banda conveyed the land by notarial deed of sale No. 9,349 datedFebruary 23, 1910, to the defendants.
The plaintiff by notarial deed No. 217 dated June 30, 1910,revoked the deed of gift to Punchi Banda, and by this action soughtto recover possession, and the learned District Judge has upheld.the right he claims, against which the defendants appeal. * It is anadmitted principle of the so-called Kandyan law that all deeds ofgifts of lands, excepting those made to priests and temples, arerevocable during the lifetime of the donor. {Grammar of KandyanLaw, Armour 179; Sawer 90; Pereira's Armour 95.) I wouldtherefore hold that the doctrine of caveat, emptor must certainlyapply to all contracts for sale of land in the Kandyan Provinces,and all purchasers for valuable consideration should be duly putupon inquiry as to their vendor’s title to convey.
The difficulty in deciding cases of Kandyan law is to find anyfixed principle, but I think the principle* of the power of revocationis founded to a great extent on the conditional nature of most ofthese deeds. (Sir John D’Oyley’s exposition in Marshall's Judgments'320, 321.) Here it is contended that this deed of gift is irrevocableon the grounds (1) that the grantor declared its irrevocability inthe deed itself, and (2) that it was made for a consideration.
On the first point, it has been held in certain cases quoted in anote at page 15, Austin's Reports (1835), and followed by Norris J.in a judgment delivered on April 22, 1835, that a renunciation of the
18-
1911.
Uddutox
J.
Banda v.Hetuhamy
( 196 )
right of revocation in the de'ed of gift is of itself a sufficient groundfor declaring the irrevocability of the gift. In that case the intentionof the grantors was that the grantee should provide for the mainten-ance of one of the grantors, and the Court made order to this effect.In MoUigoda v. Kepitipola1 the converse was held by the SupremeCourt, and in Tikiri Kumarihamy v. De Silva et al.* I reviewed allthe cases on the point, except those mentioned in Austin 15 ofabout the year 1835.
I think it was clearly not made for valuable consideration, but forlove and affection, and on condition that the donee should pay offUs. 2,000 borrowed by the donor from one Kiri Banda on a mortgagebond. It was not made for past services, nor is it specificallyalleged in it that it was granted with a view to the donee renderingsupport and assistance to the donor in his declining years.
I agree with Sir John D’Oyley’s view that in a case like this thecondition must be shown to have been faithfully and strictlyperformed, in default of which the transfer ought not to be enforcedand the donor given right of revocation.
I would again, therefore, act on the views I expressed in TikiriKumarihamy v. De Silva et al.,2 and hold here that the deed intendedthat the donee should work the lands and pay off the mortgage inquestion, and if so, it should be irrevocable, if not, it was to berevocable. This is, I think,, to be gathered, not only from the deedof renunciation, but from the terms of the deed of gift itself.
The District Judge holds that the property mortgaged does notfrom part of that gifted, and that the donee did not perform thecondition by paying off the mortgage, and I agree with him.
On the question of compensation to the donee for his disburse-ments, it is admitted that such is due, and I presume an account willhave to be taken. I am not prepared to say without authoritythat, the defendant is entitled to compensation.
The appeal must be dismissed with costs.
Appeal dismissed.
♦
> (1858) 3 Lor. 34.
• (1909) 13 N. L. R. 7i.