043-NLR-NLR-V-74-M.-SUMANASIRI-Appellant-and-R.-M.-TILLEKERATNE-BANDA-Respondent.pdf
Sumanasiri v. Tillcleratne Banda
155
1971Present: Silva, S.P.J., and Samerawickrame, J.M. SUMANASIRI, Appellant, and R. M. TILLEKERATNE BANDA,Respondent
S. C. 315/67 (F)—D. G. Kandy, 6437
Kandyan Law Declaration and Amendment Oidinanee {Cap. 59)—Sections 2 (a),4, 5 (/) (d)—Deed ojgift—Jlevoeabilily.
A Kandyan gift which was executed after the commencomont of the KandyanLaw Declaration and Amendment Ordinance, although it purported to be“ absoluto and irrevocable’’, did not contain a special clause of renunciationexpressed in the particular manner stated in section 5 (1) <d) of the Ordinance.There was apponded to tho deed a condition requiring tho donee to renderto the doner all needful assistance during tho poriod of her natural life.
156
G. P. A. SILVA, S.P.J.—Sumanasiri v. Tillektraine Banda
Hild, that tha djxl croxtol a gift that was rovocablo. It could not beconta.ajad thit, by virtua of tha condition relating to tho porforraanco ofcurtain sarvicea, tho died wa3 nat a gift within thj manning of section 2 (a)of tho Kandyan Law Declaration anil Amondmont Ordinance.
Appeal from a judgment of the District Court, Kandy.
TV. D. Gunasekera, with W. S. Weerasooria, for the 1st added defendant-appellant.
T.B. Dissanayake, for the plaintiff-respondent.
Cnr. ado. vult.
March 9, 1971. G. P. A. Silva, S.P.J.—
This was a partition action in which tho only contest was regardingthe interests which the plaintiff claimed through one Rankiri who wasalleged to have gifted her interests upon a ch ed of gift No. 10S50 dated13.2.1917 to Kalu Banda, the plaintiff’s immediate predecessor in title.The first added defendant, who is the appellant, claimed the interests ofRankiri as against the plaintiff-respondent on the ground that the saiddeed of gift was revocable and that the said Rankiri in fact revoked itby deed No. 15218 of 16.9.1970 and thereafter, by deed No. 15219 ofthe same date, conveyed her interests to him. The learned DistrictJudge held that the said deed of revocation No. 15218 was not effectiveto revoke tho original deed of gift to Kalu Banda, the plaintiff’s prede-cessor in title, and that therefore the first added defendant-appellantgot no title to the land on deed No. 15219. The present appeal is againstthis order.
The contention of the appellant is that an5' deed of gift can be revokedin terms of Section 1 of the Kandyan Law Declaration and AmendmentOrdinance (Chapter 59), subject, to the exceptions contained in Section 5.Section 5 (1) (d) provides one of the exceptions to Section 1 and precludesa gift given after the commencement of the Ordinance from being revokedwhen the right to cancel or revoke it has been expressly renounced bythe donor, either in the instrument effecting that gift or in any subsequentinstrument by a declaration containing the words “I renounce the rightto revoke ” or words of substantially the same meaning. Counsel alsocelied on the most recent Privy Council ease of Tikiri Banda Dullcuev. Pad inn link in ini Dal knee and another 1 in which the Privy Councilheld that a renunciation of a Kandyan gift is not valid unless tho deedexpressly contains a special clause of renunciation expressed in thoparticular manner stated in Section 5(1) (7). They held further thatan adjectival description of the gift as irrevocable in a deed would not
1 {1063) 71 y. L. It. 2S0.
G. P. A. SILVA, S.P.J.—Sumanasiri v. Tillekercdne Banda
157
satisfy the condition for irrevocability prescribed by this section andthat where only such words are contained in a deed of gift, such a deed. is subsequently revocable by the donor. The relevant wording in thisdeed of gift No. 10S50 dated 17.2.1947 is as follows: “ I, N. Rankirj ofGurugama… .hereby give grant convey transfer set over and assureunto the said donee his heirs executors administrators and assigns byway of gift absolute and irrevocable all those lands and premises describedin the schedule hereto and of the value of Rupees Two thousand(Rs. 2000) of lawful money of Ceylon It would therefore appear thatthis deed marked P 5 docs not confofm to the requirements laid downby the Privy Council in this case. Moreover there is appended to thisdeed a condition that the donee shall and will render to the donor allneedful assistance during the period of her natural life and after herdeath bury her remains decently according to the customs of theBuddhist religion. Even the ordinary implication of this conditionis that the deed would be of no force or avail if the condition is not satisfied.Apart from not conforming to the requirement laid down by the PrivyCouncil therefore, I think that this condition not merely whittles downbut entirely takes away the effect of the words “ by way of gift absoluteand irrevocable ”. If there was any doubt on this matter, tin; subsequentdeed of revocation No. 1524 of 1.G.1950 (1D4) in which Rankiri recitedthat the donee lulu Banda failed and neglected to render her thesuccour and assistance in consideration of which she gifted the land,removes such doubt and confirms that she intended the earlier gift onP 5 to be revocable. Jf that be the position, when Kalu Banda on5.6.1950, four days after this deed of revocation, transferred the interestswhich he purported to possess by virtue of the deed of gift by Rankirito him, he in fact had no interests to transfer as the said deed of gifthad already been revoked by Rankiri. In these circumstances, if P 5was intended to be a deed of gift, the only question for consideration•is whether it is revocable or irrevocable and the factual considerationwhich influenced the learned District Judge as to whether the conditionin the deed could not be fulfilled due to any default on the part of thedonee or due to the conduct of the donor or the first defendant docs notarise.
Counsel for the respondent, apart from pointing to the description ofthe gift in deed P 5 as being absolute and irrevocable was unable seriouslyto argue that if the deed was in fact a deed of gift, it was irrevocable.He however sought to arguo that the transaction in the instant casewas not a gift within the meaning of the Kandyan Law Declarationand Amendment Ordinance. A “ gift ” is defined in Section 2 (a) ofthe Ordinance as meaning “a voluntary transfer, assignment, grant,conveyance, settlement or other disposition inter vivos of immovableproperty, made otherwise than for consideration in money or money’sworth The submission of the Counsel is that when a property isgiven to someone subject to a condition that the donee performs certainservices, if a money value can be placed on such services, then the trans-action would cease to bo a gift within this definition. If this submission
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G. P. A. SILVA, S.P.J.—Sumanasiri v. Tillckeratne Banda
is correct, the question whether the gift which is the subject matter ofdeed P 5 is revocable or not docs not arise and tho respondent wouldbo entitled to succeed.
There are however many obstacles in tho way of accepting thissubmission. In tho first place, tho deed P 5 describes the transaction asa gift oven though tho adjectives “ absolute ” and “ irrevocable ” aroused to qualify the nature of the gift and tho word is repeated lateron in tho clause : “ To have and to hold the said lands and propertyhereby gifted and conveyed. …” On the face of it one is entitled toconclude that what is conveyed by tho deed is a gift. Secondly, thoconsideration in the deed is set out as : “ the natural love and affectionwhich I have and bear unto Ratnayakc Mudiyanselagegcdcra KaluBanda ”. It is significant that tho donor Rankin does not use herowords such as “ In consideration of tho grantee undertaking to rendermo all needful assistance during tho period of my natural life Byusing the words “ In consideration of the natural love and affectionwhich I have and bear…. ” at the forefront of tiro deed and by omittingsuch other words as I . have set out above which would pointto the performance of services as the consideration, wo are precludedfrom giving to this deed tho interpretation which Counsel for thorespondent contends for. Thirdly, even in tho clause where tho deed ismade subject to a condition, there is no suggestion of tho transactionbeing of no force or avail if the condition is not fulfilled. Had therebeen any words to that effect there might have been some basis forconsidering that the transaction was not a gift but was something intho nature of a conditional transfer for a consideration which wasassessable in money value, the amount being what is stated in tho deed.Fourthly, if tho clause setting out tho condition proceeded to estimatethe services to bo rendered in terms of a pecuniary value, there wouldhave been some justification for a court to give the words a constructionfavourable to the snbmirsion of counsel and to hold that the transactionwas not meant to be a gift within the meaning of tho definition in th©Ordinance.
This is not all. There is yet another consideration which militatesagainst our acceptance of tho contention of counsel for tho respondent.Our experience in these courts has shown that tho inclusion of a clausocontaining the words that a gift is subject to tho donee rendering allnecessary succour and assistance to the donor or words to that effectis not at all uncommon in deeds of gift in the Kandyan provinces. Thatbeing so, the words used in tho condition attaching to the present deedwould seem to lack any special significance, and is little more than thoexpression of a.hope or an expectation, in conveying the gift.
For all the above reasons it seems to us that the transaction whichformed the subject of P 5 is a gift such as is contemplated by thoOrdinance. In view of what wc have stated earlier, in the absence ofspecific words in the deed showing an intention on tho part of tho donor
Fernando v. The Queen
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to renounce his right to revoke the gift we arc coropcflcd to take the viewthat the deed was revocable. We therefore hold that the learned DistrictJudge was in error in coming to the conclusion that the deed of giftP 5 was irrevocable and that the plaintiff had acquired a good titloto the land in question on the subsequent deeds. As the gift conveyedby P 5 was thus revoked, the first added defendant whoso claim wasbased on a deed subsequent to the deed of revocation acquired a goodand valid titlo to the land as against the plaintiff. The plaintiff havingthus not acquired a title to the subject matter of tlie litigation, his actionmust fail. AVe accordingly set aside the judgment and interlocutorydecree entered by the District Judge and make order dismissing tli3plaintiff’s action. The appellant is entitled to his costs in this court andin tiro court below.
Samebawickrame, J.—I agree.
Appeal allowed.