038-NLR-NLR-V-11-GOVERNMENT-AGENT,-WESTERN-PROVINCE-v.-PALANIAPPA-CHETTY.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Grenier.
•. GOVERNMENT AGENT, WESTERN PROVINCE v.PALANIAPPA CHETTY.
1908.May 29.
D. G., Colombo, 2,266.
Donation—Reservation of ‘power to revoke—Validity—Roman-Dutch Law-Ordinance No. 7 of 1840, s. 2.
It is lawful for the donor in a deed of gift to reserve to himself thepower to revoke the gift; and a revocation made in the exercise ofsuch power ia valid.
^PPEAL from a judgment of the District Judge of Colombo.
The facts sufficiently appear in the judgment of the Chief Justice.Bawa, for the second claimant, appellant.
F. M. de Saram, for the respondent.
Cur. adv. vult.
May 29, 1908. Hutchinson C.J.—
This is an appeal by two claimants against an- order disallowingtheir claim to a sum of. money which had been awarded and paidinto Court as compensation for a piece of land which the Crown hadtaken for public purposes.
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1908. There were three claimants to the money. Palaniappa Chetty,May 99. Maria Moraes*- and Maria de Wett. It was admitted that Simon
Moraes had been the owner of the land, and that he had executed
O.J. two deeds, the first dated June 22, 1894, in favour of Maria Moraes,and the second dated July 30, 1897, in favour of the plaintiff’spredecessors in title; each of these deeds purported to dispose ofthe land; and the only issue i6, which of the two deeds is toprevail.
By the deed of June 22, 1894, Simon Moraes, reciting that he wasdesirous of granting certain properties by way of. gift to Mary, thedaughter of Maria de Wett, subject to the conditions and restrictionsthereinafter contained, granted this land to the said Mary and herheirs as a gift to hold to her and her heirs for ever, “ subject, how-ever, that the said Mary shall have no power or liberty to sell,mortgage, grant, or alienate the said several premises or any part.thereof during her lifetime; that the said Maria de Wett, themother of the said Mary, shall have the right to take and use therents and profits of the said premises during the period and untilthe said Mary shall remain a minor or unmarried for the sole main-tenance of the said Mary and herself; .that if the said Mary
leave no issue or die unmarried, the said premises shall revert anddevolve to the common estate of me, the said Simon Moraes; andfurther, that during the lifetime of me, the said S. Moraes, I herebyreserve to myself ,the full control of the said premises, the rents andprofits thereof, and the right to mortgage, sell, grant, or otherwisedeal with the said premises as if these presents had not been madeand executed. ” Maria de Wett and her daughter Mary are thetwo appellants. The daughter was a minor at the date of this' deed,and the mother in the deed accepts the foregoing gift in her behalf,subject .to the conditions and restrictions thereinbefore recited.
By the deed of July 30, 1897, Simon Moraes, without mentioningthe former deed, but reciting that he is entitled to the property andis desirous of granting it to the persons therein named, subject tothe conditions thereinafter mentioned, granted various propertiesto four persons, ,the land, the compensation for which is now inquestion, being granted to M. M. Silvestry Perera, to hold to themand their heirs, for ever, subject to the following conditions; andthen follows a restraint on alienation during the lifetime of thegrantees and a reservation to the grantor and his wife, dinring thelifetime of himself and his wife, of power to deal with the propertyas if that deed had not been made.' Simon Moraes died in September,1897, without issue, and his widow afterwards purported to makean absolute gift of the land to the same Silvestry Perera. Whethershe had power to do so or not is immaterial. The first claimanttraces his title from Silvestry Perera.
The District' Judge held that the gift made by the deed of 1894was revoked by that of 1897, and that the first claimant was entitled
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to the money in Court. The appellants contend, first, that it isnot lawful for a grantor in a deed of gift to reserve to himself a powerto revoke the gift; and secondly, that if such a reservation is lawful,the execution of the deed of revocation has no effect on the propertywhich was by the original deed vested in the original grantee, andcan only be divested by a notarial writing executed by that grantee,and that all that the revocation eSeots is to give the grantor a rightto sue the grantee for an. order requiring him to re-transfer theproperty.
I can see nothing in such power of revocation which is opposedto any enactment or to public policy or to morality. Mr. Bawareferred us to passages in Voet, bk. 39, tit. 5, s. 522, and in Nathan, as.1028, 1089, 1090; but I agree with the District Judge that thosepassages refer only to gifts in which no power of revocation isreserved. This is not like those difficult cases which sometimesoccur in gifts, and especially in home-made wills, where there is anabsolute gift, followed by a condition which is inconsistent with anabsolute gift, without any provision as to what is to happen in casethe condition is broken, and where the Court having to decide whatis to happen when the condition has been broken, sometimes feelscompelled to say that no effect at all can be given to the condition.
With regard to the second point, 1 am of opinion that all that isrequired by Ordinance No. 7 of 1840 is that the transfer, that is,in a ease like this, the revocation, should be in writing signed bythe person making it and attested in the manner required by sec-tion 2. The Ordinance merely provides for the form in which thetransfer is to be made; whether the transferor has power to makethe transfer at all is another matter.
In my opinion the order appealed from is right, and this appealshould be dismissed with costs.
Grenier A.J.—
I entirely agree.
Appeal dismissed.
♦1908.
May 29.
Hutchinson
C.J.