H. M. UKKU AMMA, Appellant, and A. M. DINGIRI MENIKA and another, Respondents

045-NLR-NLR-V-69-H.-M.-UKKU-AMMA-Appellant-and-A.-M.-DINGIRI-MENIKA-and-another-Respondents.pdf


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H. X. G. FERNANDO, S.P.J.—Ukku Amma v. Dingiri Menika
Present: H. N. G. Fernando, S.P.J. and G. P. A. Silva, J.
H. M. UKKU AMMA, Appellant, and A. M. DINGIRI MENIKA
and another, Respondents
S. O. 143/1964— D. G. Kurunegala, 1477jL
Kandyan law—Donation—Revocability—Kandyan Daw Ordinance {Gap. 59), ss 4,5(d).
By a deed of gift governed by the Kandyan Law Ordinance (Cap. 59), a persondonated certain immovable property to his niece “ in expectation of receivingsuccour and assistance ” from her during his life time. The gift containedalso a statement in which the donor said : “I do hereby specially renouncethe right to revoke the gift aforesaid ”.
Held, that section 5 (d) of the Kandyan Law Ordinance prevented the donorfrom revoking the gift although the donee failed to render assistance to thedonor.
A.PPEAL from a judgment of the District Court, Kurunegala.
TP. D. Gunasekera, with TP. S. Weerasooria, for the plaintiff-appellant.Mark Fernando, for the defendants-respondents.
Our. adv. vult.
October 7,1965. H. N. G. Fernando, S.P.J.—
Section 5 of the Kandyan Law Ordinance (Cap. 59) provides that “itshall not be lawful for a donor to cancel or revoke …. any gift,the right to cancel or revoke which shall have been expressly renouncedby the donor, either in the instrument affecting that gift, or in any sub-sequent instrument, by a declaration containing the words ' I renouncethe right to revoke ’ or words of substantially the same meaning . . .
The question which arises on this appeal is whether Section 5 preventedthe first defendant from revoking the deed PI, the relevant clause ofwhich reads as follows :—
“ I, Adikari Mudiyanselage Dingiri Menika of Ipalawa in DewameddeKorale for and in consideration of the natural love and affection aDdfor other good causes which I have and bear unto my niece Herat Mudi-yanselage Ukku Amma of Ipalawa aforesaid and in expectation ofreceiving succour and assistance from her during my life time do herebygive grant convey and assure unto her the said Ukku Amma as a giftthe land and premises in the schedule hereto described of the value ofRupees Five hundred (Rs. 500) of lawful money of Ceylon and I dohereby specially renounce the right to revoke the gift aforesaid. ”
H. X. G. FERNANDO, S.P.J.—Ukku Amma v. Dingiri Mr.nika 213
The construction adopted by the learned trial Judge, and pressed bycounsel for the defendants in appeal, is that the recital of the donor’s“ expectation of receiving succour and assistance ” renders the giftdifferent in character from an ordinary gift made from motives of loveand affection; that the recital establishes the intention of the partiesthat the donee will in fact render assistance to the donor ; that the giftwas therefore conditional upon assistance being rendered and that therenunciation of the donor’s right of revocation was subject to compliancewith the condition for assistance. On the questions of fact involved,the learned Judge has held that the donor did intend and expect assistanceto be rendered and that the donee failed to render such assistance.
Sections 4 and 5 of the Ordinance were obvious’v intended to clarifyand perhaps also to simplify the law relating to the revocation of giftsmade by persons governed by the Kandyan law. According to earlierdecisions, some such gifts were revocable and others not, depending onthe nature of the consideration for which they were made ; also difficultyhad been experienced as to the construction of language which might ormight not constitute an effective renunciation of the right of revocation.Section 4 of the Ordinance confers on any donor an unrestricted rightof revocation of any gift, except those referred to in Section 5. Theexcepted gifts are —
any gift of a specified description made to a temple ;
any gift expressed to be in consideration of a future marriage,
which subsequently takes place ;
any gift creating a charitable trust ;
any gift in which the right of revocation has been expressly
renounced in a declaration of renunciation.
Although the first three classes of excepted gifts need not be consideredon this appeal, I mention them in order to emphasise the intention ofthe Legislature that the question whether a particular deed of gift iscapable of revocation should be determinable with reasonable certaintyupon an examination of the deed. It should not ordinarily be difficultto decide whether a particular gift is of any of the first three classesspecified in Section 5. Equally, in my opinion, it should not be difficultto decide whether a deed contains an effective clause of renunciationof the right of revocation. The ordina ry meaning of the words ‘ ‘ expresslyrenounced ” is exactly or definitely renounced as opposed to impliedlyrenounced, and I am satisfied that those words have that meaning inSection 5 (d). There can be no question that i n the deed I have now underconstruction the right of revocation has been expressly renounced in themanner intended by the statute, namely by a definite declaration inappropriate language. Having regard to the Legislature’s intentionthat the right of revocation will be exercisable unless that right isrenounced with reasonable certainty, I am unable to accept counsel’sargument that in Section 5 (d) “ expressly renounced ” bears the meaning“ unconditionally renounced
214 H. Is. G. FERNANDO, S.P.J.—Ukku Amma v. Dingiri Menika
Upon a strict construction of the Section, it might be thought that anexpress declaration of renunciation, even if stated to be subject to somecondition or exception, would nevertheless bar the right of revocation 'despite the occurrence of facts contemplated in the condition or exception.It may not be unreasonable to impute to the Legislature an intentionthat the question whether a deed of gift is irrevocable should be ascer-tainable upon the face of the deed, and without the necessity of contem-plating the occurrence of possible events. But for present purposesI will assume that the language such as “ I renounce the right of revocationsubject to the condition that the donee must render me support andassistance” will constitute an express but conditional renunciation, andthat such a clause will permit revocation, if support and assistanceis not rendered. It has been argued, upon that assumption, that thelanguage in the deed under consideration is equivalent to the languageI have employed above, and that there is here only a conditionalrenunciation, effective only so long as the donee actually rendersassistance.
I must reject that argument, for the reason that, even if the partiesdid have such condition in mind, the condition is not expressly, i.e.,clearly or definitely, stated in the deed. In the early cases, such asBanda v. Hetuhamy 1 it was stated that the principle of Caveat emptormust apply to contracts for the sale of land in the Kandyan Provinces.Because of the application of that principle, it became expedient for theLegislature to secure that the question whether a deed of gift is or isnot revocable should be determinable with reasonable certainty uponan examination of the document. Although I have assumed that theLegislature did not intend to render ineffective an express reservationof the right of revocation framed in language such as that I have employedabove, that assumption should not be extended to cover what can atbest be termed the implied reservation contended for in this case. Sincethe Legislature did intend that a renunciation will be effective onlyif expressed in the document, then a condition qualifying the renunciationcan only be effective if it is also “ expressed ”.
This view is in line with that taken upon the construction of giftsmade before the enactment of Chapter 59. Thus in Kumarasamy v.Bandaa the operative clause in the deed was “ I have hereby given andgrant by way of gift which cannot be revoked for any reason or in anymanner whatsoever unto my grand daughter in consideration of thelove and affection I have towards her and with the object of obtainingsuccour and assistance from her during the life time of me the said KiriMuttuwa Veda ”. It was held that the deed was not revocable despitethe failure of the donee to render assistance. There is nothing in Chapter59 which leads me to construe differently the similar language of thegift in this case. Even if the recital “ inexpectation of receiving succourand assistance ” does establish an agreement on the part of the donee torender succour and assistance, it need not follow that the legal effect of1 {1911) IS N. L. R. 193.» {1959) 62 N. L. R. 68.
SKI SKANDA RAJAH, J—Sheriff v. Becbi215
a breach of that agreement will be to revive the renounced right ofrenunciation. In some early decisions mentioned by Middleton, J. inTikiri Kutnarihamy v. de Silva1, the Courts appear to have contemplatedthe appropriate alternative that the donee will be held bound to performhis agreement. That may well be a satisfactory means of enforcingan agreement contained in a contract of donation.
For these reasons, I hold that the gift PI was not revocable. Theappeal is allowed and decree will be entered granting the declarationprayed for.
Having regard to the facts as found by the learned District Judge,I make no order as to costs of the action and appeal.
Silva, J.—I agree.
Appeal allowed.