100-NLR-NLR-V-64-K.-M.-PUNCHI-BANDA-Appellant-and-W.-D.-NAGASENA-Respondent.pdf
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SANS ONI, J.—Punchi Banda v. Nagasena
1963Present.; Sansoni, J., and L. B. de Silva, J.
K.M. PUNCHI BANDA, Appellant, and W. D. NAGASENA, RespondentS. C. 42/1961—D. G. Kurunegala, 415/L
Kandyan Law—Irrevocable deed of gif In—Form —Kandyan Law Declaration andAmendment Ordinance {Cap. 59), ss. 4 (3), 5 (l) (d).
By the use of the single word “ irrevocable ” in a Kandyan deed of gift thodonor may, under section 5 (1) (d) of tho Kandyan Law Declaration andAmendment Ordinance, expressly renounce his right to revoke the gift.
.A.PPE AL from a judgment of the District Court, Kurunegala.
N. E. Weerasooria, Q-C., with W. D. Gunasekera, for the Defendant-Appellant.
B. Gunaralne, for the Plaintiff-Respondent.
Cur. adv. wit.
March 11, 1963. Sansoni, J.—
There is only one question for determination in this appeal, and it iswhether the deeds of gift PI and P2 are revocable or not. The relevantprovisions, which are common to both deeds, read as follows :—
“ Know all men by these presents that I, Manapaya KulatungaMudiyanselage Kiri Banda of Bogomuwa in Hewawissse Korale inconsideration of the natural love and affection which I have and bearunto …. and for divers other causes and considerations…. me hereunto moving do hereby give grant convey make
over and confirm unto …. as a gift or donation inter vivosabsolute and irrevocable the premises in the schedule hereto .subject however to my life interest.
SANS ONI, J.—Punehi Banda v. Nagasenaj»49
…. To have and to hold the said premises hereby donated
unto …. and It is heirs executors administrators and assignsabsolutely for ever. ”
The deeds were executed on 8th July, 1948, and the Kandyan LawDeclaration and Amendment Ordinance (Cap. 59) therefore appliesto this case, since the parties are subject to the Kandyan Law.Sections 4 (1) and 5 (1) of that Ordinance require consideration in thisconnection, and the}’’ are as follows :—
“4 (1) Subject to the provisions and exceptions hereinafter containeda donor may, during his lifetime and without the consent of thedonee or of any other person, cancel or revoke in whole or inpart any gift, whether made before or after the commencement ofthis Ordinance, and such gift and any instrument effecting thesame shall thereupon become void and of no effect to the extentset forth in the instrument of cancellation or revocation :
Provided that the right, title, or interest of any person inany immovable property shall not, if such right, title, or interest hasaccrued before the commencement of this Ordinance, be affected orprejudiced by reason of the cancellation or revocation of the gift to anygreater extent than it might have been if this Ordinance had not beenenacted.
(1) Notwithstanding the provisions of section 4 (1), it shall not belawful for a donor to cancel or revoke any of the following giftswhere any such gift is made after tire commencement of thisOrdinance :—
any gift, the right to cancel or revoke which shall have beenexpressly renounced by the donor, either in the instrumenteffecting that gift or in any subsequent instrument, by adeclaration containing the words “ I renounce the rightto revoke ” or words of substantially the same meaningor, if the language of the instrument be not English,the equivalent of those words in the language of theinstrument. ”
I omit those portions which have no application to this case.
The District Judge held that the deeds are revocable, and theDefendant-Appellant has challenged that finding before us.
5508 A NS ONI, J.—P unchi Banda v. Nagasenci
Tlic question of the revocability of the deeds depends solely on whetherthe first clause of the deeds, already reproduced, satisfies the requirementsof (Section 5 (1) (d) of the Ordinance. Those requirements are :—
A renunciation of the right to revoke
which is express
made by the donor in a declaration
containing the words “ I renounce the l ight to revoke ” or words of
substantially the same meaning.
The fourth requirement seems to be merely illustrative of the other three.
Now the clause under consideration is nothing less than a declarationby the donor, cxx>ressed in the first person, for lie declares that he givesthe property as a gift. He describes the gift as " irrevocable ”, and thequestion that remains for consideration is whether, by the use of thatsingle word, helms expressly renounced the right to revoke. X can seeno need for a sejmratc clause containing such a renunciation. TheNotary could ha ve drafted the deed in that way, but he ha s chosen a moreabbreviated form which is just as effective. The donor has, by describinghis gift as “irrevocable”, declared that he has renounced the right torevoke, for it is onlj- a donor who has the right to revoke a gift. When hedeclares that the gift is irrevocable, he is expressly renouncing that right.
We were referred to the report of the Kandyan Law Commission(Sessional Paper 24 of 1935). I do not think this report is of assistance ininterpreting the words used in the Ordinance. It usefully summarises theease law relating to Kandyan deeds of gift, and para 58 contains a recom-mendation that there should be a clause renouncing the right to revoke,made in explicit terms and according to a prescribed form, to render adeed otherwise revocable absolute and irrevocable. Parliament has notaccepted the recommendation so far as it relates to a clause or to a pres- •oribed form, and we thus come back to the actual words of the Ordinance.
I do not think it is helpful to refer to the earlier cases which deal with therevocability of Kandyan deeds of gift, but there are two decisions whichthrow light on the questions arising here. In Kumarasamy v. Banda 1,where a deed in the same terms as these deeds was considered, it was heldthat there was a declaration by the donor. In Ulchu Banda v. Paulis Singho2it was held that the words “ absolute and irrevocable ” are an express andunmistakable renunciation of the right to revoke.
For these reasons I would allow the appeal and dismiss the plaintiff’saction with costs in both Courts.
B. DE Stlva, J.—I agree.
A'p-pml allowed.
1 {1959) 02 N. L. n. OS.
2 (1920) 27 AT. L. R. 449.