085-NLR-NLR-V-45-HAPUMALI-Appellant-and-UKKUA-Respondent.pdf
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HOWARD C.J.—Hapumali and Ukkua.
1944Present: Howard C.J.HAPUMALI, Appellant, and UKKUA, Respondent.
261—G. R. Panwila, 10,420.
Kandyan deed of. gift—Services Vo berendered—Servicesduly performed
by donee—Deed irrevocable.
Where a Kandyan deed of gilt is given in consideration of servicesto be rendered in the future and the services are duly performed, thedeed cannot be revoked-
A
PPEAL from a judgment of the Commissioner of Requests,Panwila.
H. W. Thambiah for the plaintiff, appellant.
Cyril E. S. Perera, for the defendant, respondent.
Cur. adv. vult.
June 12, 1944. Howard C.J.—
The plaintiff appeals from the decision of the Commissioner of Requestsdismissing her aetion asking for a declaration of title to certain land anddamages. The defendant, who is the plaintiff’s daughter, pleaded thatthe land in question had been donated to her by deed P 3 dated December28, 1924, by the plaintiff and that the latter had no right to revoke thegift which the plaintiff purported to do by deed P 2 dated July 18, 1941.The learned Commissioner held that a deed of gift like P 1 was revocable,that the defendant had rendered all assistance to her mother, the plaintiff,and that the plaintiff had no right to revoke the deed of gift. Suchrevocation was, therefore, of no effect.
P 1 recites that the donation to the defendant is made “ with theintention of receiving assistance and necessary succour during theterm of natural life in this world and in consideration of the love andaffection I•have and bear unto” the defendant. The habendum statesthat the donee, her heirs, executors, administrators and assigns, is to holdthe said premises with all the donor’s right, title and interest theretofree from dispute. It is conceded by Counsel for both parties that theamendment of the law effected by section 5 of the Kandyan Law Declara-tion and Amendment Ordinance (No. 39 of 1938) does not affect thequestion that has to be decided in this case. I have, therefore, beenreferred to. various decisions on the law as it stood prior to the enactment
HOWARD C.J.—Hapumali and Ukkua.
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of this amending Ordinance.. In Gunadasa v. Appuhamy1, Oarvin S.P.J.held that, where a Kandyan deed of gift given in consideration of servicesto be rendered in the future granted “all the right, title and interest ofme the said donor in and to the premises for ever,’’ the donor did notrenounce the right of revocation by the use of the words “ for ever ”,In Iris judgment the learned Judge states that the purpose of the giftwould seem to be to secure to the donor that she would be well cared forduring what remained of her life and such deeds are always revocableunder the Kandyan law unless they are expressly declared to be irre-vocable or where the power of revocation is expressly renounced. He thenwent on to hold that the use of the words “ for ever ” cannot fairly beconstrued as containing language which imposes a' limitation or a renun-'eiaticn of the ordinary right of the donor. The language of the deedin Gunadasa v. Appuhamy {supra) is very similar to that employedin the presentcase.Butthe learned Judge didnot dealspecifically
with the pointas towhether, if the services areduly performed, the-
right to revokeinherent insuch a deed is exercisable. Theimplication
of the judgmentis thatsuchright is still exercisable.In fact itwas so held
by Wijeyewardene J. in Wijesinghe v. Mohotty and another 2 where-services had been performed up to date and for twenty years. In spite ofthis the learned Judge held that the deed was revocable. Considerationsof natural equity cannot be permitted to override Kandyan law on thissubject. Tn doing so he referred to D. C., K,andy, No. 22,404 (AustinP 140) in which case the Supreme Court held a deed to be revocablewhen the donor transferred a land to another in consideration of assistance-to be rendered even after such assistance had been rendered. It was-held further that, if the donee had spent any money, he could make aclaim for it, ‘ ‘ the assumption being that the gifted land left him harmlessduring the time he rendered assistance.”
Passages from judgments in other cases indicate that a different viewto that expounded in the cases I have cited has been taken. In affirmingthe decree of the Court below in Bologna v. Punchi Mahatmaya3 theSupreme Court stated as follows : —
“It is impossible to reconcile all the decisions as to the revocabilityor non-revocability of Kandyan deeds; but the Supreme Court thinks,it clear, that the general rule is, that such deeds are revocable, and also-that before a particular deed is held to be exceptional to this rule,it should be shown that the circumstances which constitute non-revocability appear most clearly on the face of the deed itself. Thewords in the present deed as to services ‘continued to be rendered bythe donee’ do not appear to the Supreme Court to be sufficiently clearand strong.”
The judgment of the Supreme Court which I have cited above was citedwith approval by Pereira J. in Ram Menika v. Banda Lekam 4 in the-following passage that is to be found at page 410: —
This dictum strikes the keynote of the situation. It implies thatif it was clear that the deed in question had been given for future-
1 36 N. L. R. 122.3 Ramanathan'e Reps. 1863—1868, p.195.
* 26 C. L -W. 48.« 15 N. L. R. 407.
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WUETEWABDENB J.—Amarasuriya and S. I. Per era
services and those services had been actually rendered, the Courtwould have inclined towards pronouncing against revocability. Theposition appears to me to be simply this. If a deed is given in con-sideration of something to be done in future by the donee, and thatthing is done by him, being induced thereto by the giving of the deed,it would, to say the least, be inequitable to allow such a deed to berevoked. ”
The question was also considered by Lascelles C.J. and Pereira J.in Mudiyanse v. Banda 1. At page 57, Pereira J. cites the following,passage from the ruling of the Full Court in Kiri Menika v. Ganrala 2: —
“ The Supreme Court thinks it clear that the general rule is thatKandyan deeds of gifts are revocable, and also that before a particulardeed is held to be exceptional to this rule, it should be shown that thecircumstances which constitute non-revocability appear most clearlyon the face of the deed itself. The words in the present deed as toservices ‘ continued to be rendered ’ do not appear to the Supreme Courtto be sufficiently clear and strong.”
Pereira J. held that the concluding portion of this passage clearly meansthat, if the words as to service continued to be rendered were clear, and•such services were actually rendered, the deed would be an exceptionto the rule. It is clear that" the motive for the deed P 1 was the impliedpromise on the part of the defendant to render the plaintiff assistance-and necessary succour during her lifetime. The Commissioner has found-that such assistance and necessary succour was actually rendered. I seeno reason to disturb this finding of fact. In these circumstances thepower to revoke was not exercisable. The appeal is, therefore, dismissed-with costs.
Appeal dismissed.