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of the love, &c., we do hereby make over by way of gift to thePecemder 16. Said three persons” the properties thereinafter described. ” These
HxreoinireoK said, shares of high and low landsare hereby made over
J. by way of gift to the said Thelenis, Suwaris, and Gregoris, to beentitled to them from and after the . death of us, the said donors;and we reserve to us the right to possess and enjoy the produce ofthe said lands during our lifetime; and if the said three donees orany of them shall behave disobediently to us, both the donors or toany of us, or if they or any of them shall misconduct themselves orhimself during our lifetime, then any such person shall be disentitledto all the properties upon this deed of gift, and we the donors dohereby reserve to ourselves the right to deal with those properties insuch a case as we like. Provided, however, that this gift shall beabsolutely entitled to him or them who do not misbehave as aforesaid.”
The deed is in Sinhalese. The two translations hied in the casesubstantially agree as above, except that the second translationomits the words “ In such a case ” in the revocation clause; but Ido not think the omission makes any difference in the sense; andthe Chief Interpreter, whom I asked to read the original carefully,informs me that it is quite clear that the translation above given iscorrect, and that the original says that “ then,” i.e., in case ofmisconduct, the offending donees shall be disentitled, and we maydeal with the . property as we like.
Nonchy Hamy died in March, 1881. Thelenis died in 1888, andthe plaintiffs are his heirs.
Allis Vedarala by deed of February 5, 1892, after reciting the deedof gift and the death of his wife, purported to revoke it under thepower reserved in it, but without alleging any misconduct by anyof the donees; and then by a subsequent deed gave the lands toSuwaris and Gregoris, through whom the defendant claims.
Allis Vedarala remained in possession until his death in 1897.
No issues seem to have been settled; and on the day of trial thedefendant contended that under the deed of 1881 no share vestedin Thelenis, because he predeceased one of the donors, and that thevesting was postponed until the death of the surviving donor. Healso argued that the deed was really a will. The District Judge heldthat the.deed was more of a testamentary disposition than a gift intervivos; and also said, “ The grantors expressly reserve to themselvesthe right of revocation, and provide for a forfeiture in case of miscon-duct,” which, as I have said above, is a mistake. He said, however,that in the view which he took of the deed, viz., that it was only to takeeffect on the death of the donors, it was unnecessary to discuss thevalidity of the deed of revocation. And he dismissed the action.
The deed of gift of 1881 was attested by a notary, who certifieson it that it was drawn, read over, and explained by him to thedonors and to the donees, and that the duplicate and the originalwere duly stamped. It purports to be a “ deed of gift ”; to dispose
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of some only of the donor’s property; to be an immediate gift 1907.with a life interest reserved to the donors; and to be revocable only DeetmMr 10.in case of misconduct of the donees. And it was prepared by a hutohinbokprofessional man, who knew .the difference between a deed and a O.J.will, and that a will ought to dispose of all the testator's property,and that a will is revocable. I can see no ground for holding.it to bea will. In my opinion it was a deed of gift, vesting the propertyimmediately in the donees, with the reservation to the donors of a lifeinterest and of a power to revoke in an event which did not occur;and the deed of February 5, 1892, was ineffectual to revoke it.
hold accordingly that the judgment under appeal should be setaside, and judgment given declaring the plaintiffs entitled to„ theshares claimed. The parties agreed at the trial that the damagesshould be fixed at Its. 50 per annum; and in accordance with thatagreement the plaintiffs should also have judgment for damagesat the rate of Bs. 50 per annum from March, 1904, which is the datefrom which the plaintiffs allege that the defendant has kept them outof possession, and also for the costs of .the action and of this appeal.
Wendt J.—
The instrument we have to construe is in form a deed inter vivosand not a will. It is stamped and numbered as a deed and hot as awill, and it is registered (a will being incapable of registration).
Further, it calls itself a deed of gift, and bears on the face of it anacceptance by the donees, a formality essential to the completion ofa donation, but foreign to the nature of a will. All these circum-stances indicate that the instrument was to have some operation inpreesenti. Coming to the terms of the instrument, there are wordsof immediate conveyance (“ We do hereby make over by way ofgift ”)—a circumstance which distinguishes this case from some ofthose cited to us at the argument. The right to possess for theirlives and the life of the survivor of them is reserved to the donors,and it is provided that in the event'- of misconduct of one or moreof the donees, he or they shall become disentitled to the benefit ofthe gift, and the donors or the survivor of them shall be entitled todispose of the properties as .they or he shall please, “ provided, how-ever, that the gift shall be absolutely entitled to him' or them whodo not misbehave as aforesaid.” I agree in thinking that the onlypower of revocation reserved was the. power to revoke for misconduct,and misconduct • was not alleged in .the deed of revocation. In theabsence of misconduct the words I have just quoted appear to makethe donees' title absolute. In the view I have taken it is unneces-sary to decide another important question which was argued, viz,,whether the power of revocation could be exercised after the deathof the donee Thelenis. I agree that the appeal should be allowed,and plaintiffs given judgment as suggested by the Chief Justice.
Appeal allowed.