103-NLR-NLR-V-51-BISO-MENIKA-et-al-Appellant-and-PUNCHIAMMA-et-al-Respondents.pdf
430
WINDHAM J.—Uiso Menika v. Punchiamma
1948Present: Windham J. and Gratiaen J.BISO MENIKA et <U.t Appellants, and PUNCHIAMMA et al.tRespondents
.S'. C. 294—1). C. Matak, L126
Kandyan Jatu–—Deed of gift in ronahlrratioi' of marriage—Recocnbitity—-KandyanLaw Declaratvm and Amendment Ordinance, -Vo. 39 of 193S• Soct'on* 4 (7)and 3(1) (b)—Mmning of“ <x/>rewd to be in consideration of afuiure marriageA d^ed of gift in consideration of marriago, to he irrevocable in terms ofsection 5 (1) (b) of the Kandyan Law Declaration and Amendment Ordinance,N’o. 39 of 1938. must not only l»e proved to bo in consideration of a futuremarriage, but must also bo ” expressed to be” in consideration of a futuremarriage. The deed of gift must state expressly, and not merely use wordsfrom which the inference might or even must be drawn, that the gift is inconsideration of ft future marriage.
^^PPEAL from a judgment of the District Court, Matale.
Vernon Wtjetunge, for plaintiffs appellants.
S. C. Ralwatte, for defendant respondents.
Cur. adv. vu.lt.
October 31, 1949. Windham J.—
Phis appeal raises a question regarding the proper interpretation tobe placea paragraph (6) of section 5 (1) of the Kandyan Law Decla-ration and Ainena^nt Ordinance, No. 39 of 1938. The first plaintiff-appellant is the wife ot me seuv«.a rm..uff.aPr.,mntthe
defendant-respondents are her parents. In 1941 the second plaintiffagreed with the defendants to inarry the first plaintiff, then a youngwidow, upon their promising to give him as dowry certain lands. Secondplaintiff gave notice of the marriage on Utli September, 1941, and later,the defendants having failed to execute the dowry deed, he gave freshnotice of the marriage on 5th January, 1942. On this same date thedefendants executed a deed of gift, P3, giving to the first and secondplaintiff the lands which they had promised. The plaintiffs got married
WINDHAM J.—Bieo Monika V. Punchiamma
431
on 2nd February, 1942. Thereafter the second plaintiff possessed thelands for three or four years, after which he allowed the second defendantto possess it on his promising to give the plaintiffs their share. Thedefendants failed to do so, and accordingly on 22nd December, 1948, theplaintiffs filed action against them. The plaintiffs then became awarethat the defendants, by deed of revocation P5, dated 26th April, 1946, hadrevoked the deed of gift P3. The plaintiffs accordingly withdrew theiraction and filed a fresh action, seeking a declaration that the deed ofgift P3 was irrevocable and asking that the deed of revocation P;> beset aside.
In dismissing their action, the learned District Judge found that in thecircumstances of the case the deed P3 had clearly been executed by thedefendants in consideration of the marriage of the plaintiffs. I ontirelyagree with his finding on this point, which was the only reasonably possibleconclusion. But he dismissed the action on the ground that the gift inP3 was not “ expressed to be in consideration of a future marriage ”, andthat accordingly in view of the provisions of sections 4 <1) and 5 (1) (6) ofthe Kandyan Law Declaration and Amendment Ordinance, No. 39 of1938, the gift was not irrevocable.
Section 4 (!) of the Ordinance prorides as follows :—
“4. (1) Subject to the provisions and exceptions hereinaftercontained, a donor may, during his lifetime and without the consent ofthe donee or of any other person, cancel or revoke in whole or in partany gift, whether made before or after the commencement of thisOrdinance, and such gift and any instrument effecting the same shallthereupon become void and of no effect to the extent set forth in theinstrument of cancellation or revocation:
Provided that the right, title, or interest of any person in anyimmovable property shall not, if such right, title or interest has accruedbefore the commencement of this Ordinance, be affected or prejudicedby reason of the cancellation or revocation of the gift to any greaterextent than it might have been, if this Ordinance had not been enacted ’’.
Section 5 (1) (6) provides as follows:—
“ 5. (1) Notwithstanding the provisions of section 4 (1), it shallnot be lawful for a donor to cancel or revoke any of the following giftswhere any such gift is made after the commencement of thisOrdinance:—
(6) any gift in consideration of and expressed to be in considerationof a future marriage, which marriage has subsequently taken place ”,'
Now it is clear from the terms of section 5 (1) (6) that in order that anygift shall fall within its terms and thereby be irrevocable, it must not onlybe proved to be in consideration of a future marriage, but it must also be“expressed to be” in consideration of a future marriage. The mainpoint for decision is what is meant by these words “ expressed to beIt has been argued that these words do not necessarily mean, in the case
432
WINDHAM J.—Bi#o Maiika r. I‘u nchiamma
of a deed of gift, that there must appear in the body of that deed wordsto the effect that the gift is in consideration of a future marriage, butthat it would be sufficient if the gift were expressed to be inconsideration of such a marriage by the spoken words, or even the conduct,of the donor before or at the time of the making of the gift. This con-clusion, however, docs violence in my view to the ordinary acceptedmeaning of the expression. In accordance with English usage, if onesays of a gift that it is expressed to be in consideration of a future marriage,one means that such expression shall be found in the wording of the gift ;and if the gift is effected (as in the present case) by means of a deed,then the expression must appear in the wording of the deed.
Now in the deed of gift P8 there are no words to the effect that thegift was in consideration of the marriage of the plaintiffs. The onlywords in P3 which are relevant to the question of consideration are thefollowing:—“which said premises …. wo do hereby gift untoa beloved daughter of ours, Purijjala Biso Menika of Pamunuwa aforesaidand a beloved son-in-law Muthu Banda Ekanayake of Pamunuwaaforesaid for the love and affection we bear towards them, and for othervarious good reasons, and with a view of obtaining all necessary aid andhelp during our life time from the said Biso Menika and Muthu BandaEkanayake Lt is suggested that by the reference in the above passageto the second plaintiff Ekanayake as “ our beloved son-in-law ” the deedis “ expressed to be in consideration of a future marriage ”- But thiscontention cannot succeed. No doubt that reference is evidence of thefact (of which there was abundant other evidence outside the deed) thatthe gift was in consideration of a future marriage. But section 5 (1) (6),in addition to proof of this fact, requires that the gift shall be expressedto be in consideration of a future marriage; and this in my view meansthat the deed of gift shall state expressly, and not merely use words fromwhich the inference might or even must be drawn, that the gift is inconsideration of a future marriage. This additional requirement ofsection 5 (1) (6) was clearly inserted by the draftsman for good reason,and its clear provisions, as also those of section 4 (1), were very possiblythe outcome of a resolve on the part of the legislature to do away. withsomewhat uncertain state of the law previous to 193$ regarding therevocability or irrevocability of deeds of gift in consideration of marriageunder the Kandyan law', as reviewed in such cases as Kandappa CharlesAppu1 and Vkku Banda v. Paulis Singho *.
T accordingly hold that the deed P3 was not “expressed to be inconsideration of a future marriage ”, and that it was therefore revocable,t-iiing within the provisions of section 4(1), and not within the exceptionafforded by5 (i) (&)> of the Kandyan Law Declaration and
Amendment Ordinance, No. 39 of 1938. The appeal is therefore dismissedwith costs.
Oratiaen J.—I agree.
Appeal dismissed.
1 (1926) 27 A L. fi. 433.
*27 X. h. It. 449.