DINGIRI BANDA v. MEDDUMA BANDA et al

067-NLR-NLR-V-17-DINGIRI-BANDA-v.-MEDDUMA-BANDA-et-al.pdf


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♦Present: Lascelles C.J. and De Sampayo A.J.
DINGIRI BANDA v. MEDDUMA BANDA et al.
25—D. C. Kandy, 22,204.
Kandyan law—Gift to daughter's son—Acquired property of grandson—Succession to grandson's property—Gift of husband's property byhusband and wife—May wife revoke the gift after husband's death tUkkurala -and Mutumenika had a daughter Kirimenika (died1868), who was married in bina to plaintiff. Ukkurala gifted in1888, along with Mutumenika, his land to his grandson TikiriBanda, subject to the condition that he should render assistance,&c., to Ukkurala and Mutumenika. Tikiri Banda died leaving ason, Ban Banda, who died issueless in 1906. Mutumenika in 1907• (her husband being then dead) purported to gift the land to herbrothers.
Held, (1) That Mutumenika's deed in favour of her brothers didnot convey any title to them, as the land belonged to Ukkurala andnot to Mutumenika.
(2) -That on Ban Banda's death the property devolved on hispaternal grandfather (Kirimenika's husband).
In the hands of Tikiri Banda himself the property was acquired,and not paraveni or ancestral property.
A
PPEAL from a judgment of the District Judge of Kandy(P. E. Pieris, Esq.).
Bawat K.C., for the appellant.—TJhe gift to Tikiri Banda wason condition that he should render assistance to the donors. Hepredeceased the donors and could not have rendered any assistanceto the donors. It was open to the surviving donor (Mutumenika)to revoke the gift and give it to others.
[De Sampayo A.J.—The property donated was not the propertyof Mutumenika, but it was the properly of Ukkurala.] In anyevent Mutumenika had a right to revoke the gift to the extent of
1914.
( 202 )
1914.
DingiriBanda v.MtdditmaBanda.
On Tikiri Banda’s only son dying issueless, it should revert to thesource from which the property devolved on Tikiri Banda. Plain-tiff, who was Ukkurala’s daughter’s bina married husband, cannotinherit the ancestral property from his grandson. A bina father isnot heir to his children in respect of property inherited by themfrom their mother {Ban Memka v. Mudalihamy 1). Counsel alsoreferred to Ranhamy v. Pinghardy 2; Modder'g Kandyan. Law. 189,165; Appukamy v. Dingiri Mentha2.
It has been proved that the plaintiff had abandoned his sonTikiri Banda after the death of hi6 wife. Tikiri Banda was broughtup and was entirely supported by his maternal grandparents; underthe circumstances, the plaintiff would in no event have succeededto the property of his son Tikiri Banda or of his son Ban Banda.
A. St. V. Jayewardene, for the plaintiff, respondent.—By the deedof gift in favour of Tikiri Banda life interest was reserved in favourof Ukkurala and Mutumenika. In the ordinary Kandyan deedof gift possession is also transferred. In this case Tikiri Bandarendered such services as he could during his lifetime. If a gift isgiven in consideration of future services, and such services are*rendered, it could not thereafter be revoked. The fact that Mutu-menika died before the donors does not give the donors any rightto revoke the gift.f
Mutumenika had no right to revoke the gift. Ukkurala did notgive that power to his wife. The property gifted was Ukkurala’s.
Mutumenika has not in any event revoked the gift in favour ofTikiri Banda.
The property in question was the acquired property of TikiriBanda. A bina husband succeeds to all the property of his children,except property which comes through the mother. Ukkurala v.Tillekeratna,4 Mudalihamy v. Bandirala,5 Modder 114, Ran Menikav. Banda Lekam * Sawyer 14.
Bawat K.C.t in reply.—Though Tikiri Banda did not' inheritthe property from his mother, it is stamped with the character ofmaternal property. Kandyan deeds, with a few exceptions, arerevokable. The death of the donee does not take away the right.
* (1913) 16 N. L. R. 131.4 (1882) S S. C. C. 46.
2 (1878) 1 S. C. C. 3.6 (im) 3 N. L. R. 210.
» (1889) 9 S. C. C. 34.* (1912) 15 NX.R. 407, at pageilO,
one-half. Ukkurala, by associating his wife in the deed of gift,gave his wife as it were a disposing power over one-half of theproperty gifted.
Plaintiff, who is Ukkurala’s son-in-law, is not entitled to succeedto his grandson’s property. The^ property in question is theancestral property of Ukkurala, which devolved on Tikiri Bandaby gift.
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No express revocation is necessary. A later donation is sufficientrevocation of an earlier gift; the first deed is ipsa facto revoked bythe later deed, although it does not expressly purport tor revoke it('Teldena v. Teldena1). Counsel also referred to Mudiyanse v.Banda.2
Cur. adv. vult.
March 25, 1914. De Sampayo A.J.—
This apeal reuses a difficult and, so far as I know, new point inthe Kandyan law under the following circumstances. Ukkufalaand his wife Mutumenika had a ‘daughter Kirimenika, who wasmarried to the plaintiff in bina. Kirimenika died in 1868 after givingbirth to a son, Tikiri Banda. Ukkurala and Mutumenika on August2, 1888, gave a deed of gift to their grandson Tikiri Banda in respectof the land Pelakettiyakumbura in claim and various other lands,reserving to themselves the right of possession during their lives, andproviding that the donee should render them assistance, and, whenthey died, should bury them according to custom, and performreligious ceremonies for the benefit of their future state. TikiriBanda lived with the grandparents and rendered them assistanceuntil he fell ill and died some years ago. He left a son, Ban Banda,Who himself died in his youth in 1906. Mutumenika on November25, 1907, her husband Ukkurala having in the meantime died,purported to gift the same lands over again to the defendants, whoare her brothers. Mutumenika has also since died, and the plaintiff,claiming as the only heir of. his grandson Ban Banda, has broughtthis action to vindicate the land Pelakettiyakumbura. The ques-tions arising out of these circumstances are (1) whether Mutumenika'sdeed of gift of 1907 in favour of the defendants had the effect ofrevoking the original deed of gift of 1888 in favour of Tikiri Banda;and (2) if not, whether the plaintiff is the heir of his grandsonBan Banda?
There is no express revocation in Mutumenika’s deed of 1907,but if Mutumenika had the right to revoke, the subsequent gift tothe defendants would no doubt itself have the effect, under theKandyan law, of revoking the prior gift. I shall also assume for thepurposes of this case that a gift for assistance may be revoked after*the .death of the donee, even though he has during his life fulfilledthe condition by rendering assistance. But Mutumenika was notat all events the sole donor. As a matter of fact, the District Judgefinds that the lands belonged to Ukkurala alone, and not to Mutu-menika at all. That being so, the District Judge has held thatUkkurala was the real donor,, and that Mutumenika alone could riotafter his death revoke the gift, and I agree with him in that opinion:With reference to this, Mr. Bawa, for the defendants, maintained acurious argument, in order to save the situation as much as possible.He contended that Ukkurala, by making his wife Mutumenika join1 {1903) 3 Bal. 133.* (1912) 16 N. L. R, S3.
1914.
DingiriBanda v.MeddumaBanda.
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1914>. in the deed, in effect gifted to her a half share of the lands, and thatDbSaxfayo Mutumenika must be regarded as having by the same deed givenA.J. to Tikiri Banda that half share by way of gift, which she thereforeX^giri could revoke at pleasure. This argument is more specious thanBanda v. sound, and is wholly untenable. There is no law by which in suchcircumstances as the above one conveying party can be regardedas giving anything to the other conveying party. . There are nodoubt cases of estoppel arising from the fact of the true owner ofproperty standing by and allowing another person to deal with theproperty as if it were his own, whereby the true owner would beprecluded from asserting title as against an innocent party, whopays valuable consideration, but this is not a case of that kind atall. Nor are the facts in accordance with the argument. On theface of the deed Ukkurala not only recited his own title, but expressedhimself in a way which shows that he really was the sole donor.This is clearer in the Sinhalese original than in the translation filedin the case. It is Ukkurala who speaks all throughout in the deed.He begins by 6aying (I am here abbreviating the wording), “ IUkkurala, am entitled by right of my father .Punchirala to thefollowing lands/' The lands being then described, he proceeds'
‘ * The said lands having been hereby gifted by ine and my wifeMutumenika to our grandson Tikiri Banda, all my right, title, andinterest in the said lands, and therefore the said Tikiri Banda shallrender assistance, &c., so long as I and my said wife shall live, andafter our death he shall possess the same according to pleasure/’The deed concludes by the usual clause relating to execution, andis eigned by Ukkurala and Mutumenika. In my view the onlyconveying party in the above deed is.Ukkurala himself, though inone passage Mutumenika’6 name is associated with his own, so thatthe argument in question has no foundation of fact; probablyMutumenika joined in the deed from some idea on the part of thenotary or the grantors that her life interest and the right to assistancewould thereby be better' secured. In this connection I may referto Doratiyawa Banda v. Hewapola Appukamy (D. C. Kurunegala,16,788, decided in appeal on November 26, 1867), a note of which16 given in Modder’s Kandyan Law 136. There also .two persons,husband and wife, had given one deed of gift for several landsto the plaintiff, and after the death of the husband the wifepurported to gift the lands to the defendants, who appear to havejustified the latter gift on the ground, inter alia, that the wife was thesole owner. If I understand the note of the case, the District Judgedeclared the plaintiff entitled to the lands of which the husbandwas owner, and the defendants to the lands of which the wife wasowner, and the Supreme Court affirmed the District Judge's judg-ment. In my opinion the original gift to Tikiri Banda remainsunaffected by the subsequent deed executed by Mutumenika infavour of the defendants.
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The question as to the plaintiff being the heir of Ban Banda inrespect of the lands gifted to Tikiri Banda and inherited from himby Ban Banda is a more serious one. There is no express rule inthe Kandyan law depriving the paternal grandfather of the naturalright of succession in such circumstances as the above, and it isdifficult to discover a principle by which the Court should so holdwith any degree of certainty. Counsel for the defendants referredus to the class of cases, the latest of which, Ran Menika v. Mudali-hamy,1 collects all the authorities, in whioh it has been held thataccording to Kandyan law a bina father is not the heir to his childrenin respect of property inherited by them from their mother, andthat the property goes to the relatives on the mother’s side. Thesecases, however, have no application to the present case, if only forthe reason that this was not the mother’s property. Then counselreferred to the more general principle, which was enunciated inRanhamy v. Pinghamy,2 that ancestral property, when the line ofdescent is broken, goes over to the next nearest line issuing fromthe common ancestral rooftree. The principle may be .absolutelyaccepted so far as it goes. But it is to be observed that the rulehas been applied in oases where the question is as between thematernal relatives and the paternal relatives, and I am not awareof any case in which the rule has been requisitioned where thecontest is between the father and the maternal relatives. It seemsto me that all these cases pre-suppose the father to have pre-deceasedthe child, and, indeed, Mr. Modder, in his book on Kandyan law, atpage 189, after stating the rule " paraveni property reverts to thesource whehce it came,” proceeds to explain it thus; '* If a personsurvived his or her parents ” and died, without issue or certainspecified relatives, ” in that case the deceased’s paternal paravenilauids will pass to his or her next of kin on the father’s side, and thelands which the deceased had derived from his or her maternalancestors will devolve on the next of kin on the mother’s side.”The words italicized make the matter clear in the sense I have aboveindicated. Moreover, the quality of the property itself is of essentialimportance, for it is paraveni or ancestral property which so revertsto the original source, and by that expression is meant propertyinherited from the ancestor and not property acquired,, though itmay be from an ancestor. Now, in this case Tikiri Banda obtainedthe lands by gift from his grandfather Ukkurala, and there is goodauthority for saying that such property is " acquired ” propertyas opposed to ” paraveni ” property. See Ukkurala v. Tillekeratne,3Mudalihamy v. Bandirala,* Kiri Menika v. Mutumenika.* Nodoubt, as pointed out by Lawrie J. in the last of these cases,
“ paraveni ” in one . sense means property over which the owner
1 (1913) 16 N. L. R. 131.3 (1882) S S. C. C. 46.
1 {1878) 1S.C.C. 3.* {1898) 3 N. L. R. 210.
»{1899) 3 N. L. R. 378.
1M4;
De SamfayoA.J.
ZHngiriBanda v.
Medduma
Banda.
( 206 )
1914*
AbSampayq
A.Sf.
B6rtiLv>
Jjde&twrjia
Banda,
has disposing power, but in the present discussion “ paraveni " issynonymous with V ancestral,” that is to say, property coming, bydescent from an ancestor. It. is also true that Ban Banda, whoseestate is now in question, inherited the lands from his father TikiriBanda, but in the hands of Tikiri Banda himself they were acquired,and not paraveni or ancestral property. For the purposes of thiscase Tikiri Banda, and not his donor Ukkurala, was the source ofBan Banda’s title, and therefore there is no room for the applicationof the rule in question, or for the conclusion that the propertyreverted to Ukkurala’s or his wife Mutumenika’s relatives. Therebeing no Other rule or principle to exclude the plaintiff from thesuccession to his grandson Ban Banda’s property, I think the naturaland general rule that in default of issue or collateral relativesentitled to succeed the property of a deceased person should go tohis nearest • ascendant, should prevail.
In my' opinion the appeal fails, and should be dismissed withCosts. I may add that, since the above judgment was prepared, Ihad the record in D. C. Kurunegala, 16,788, referred to above sentfor, arid I find that the facts are as I gathered them from Mr. Modder’abook on Kandyan law at page, 186.
Lascelles QJ.—
s
. I entirely agree.
• Appeal dismissed.