128-NLR-NLR-V-56-M.-U.-LOKUBANDA-ARACHCHI-et-al-Appellants-and-P.M.I.L.S.-MOHAMED-et-al-Respo.pdf
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XAGAUXGAM SJP.J.—3
v. Mahomed
511
1954
Pretent: NagaUngam 3.PJ. and Fernando A.J.M. U. LOKUBANDA ARAOHOHl el al., Appellants, and1*. M. I. L. S. MOHAMED et al., RespondentsS.C. 166—D. C. Kandy, 2,791
Kanefytm Law—Donation—Revocahility—Covenant to render auecour to a partyother than the donor—Validity—Construction of deed.
A Kandyan revocable deed of gift is revoked by the donor if he executesa later and iucensiatent deed.
Under Kandyan Law a deed of gift in consideration-of assistance to lie ren-dered to the donor is revocable subject to compuiisulien for assistance actuallyrendered.
A eon von am in a gift by a brother to a sister that the sister should lookafter and render succour and assistance to their mother is valid under theKandyan Law.
A. a Kandyan Sinhalese, donated certain immovable property to her sonBin 1916, citing as title to the property a deed of 1855. Subsequently, in 1917.l<oth A and B jointly gifted the same property to C, who was A’a daughter andB’s sister, and cited as title the deed of gift of 1916 only.
Held, that the deed of gift of 1917, though executed by A and B, was in fact adonation by B alone in favour of C and that, as it was a revocable deed of gift,i< was entitled to revoke it.
He Id further, that under the deed of gift the donee C was liable torender succour and assistance not only to B but also to A.
A
/APPEAL from a judgment of the District Court, Kandj'.
B. //. Aluvihare, for the 2nd, 3rd and 4tli defendants appellants.If. H . Tambiah, with H. L. de Silva, for the plaintiffs respondents'
Our. adv. viitt.
Decern her S, 1954. Xagai,ls~gaai S.P.J.—'
This appeal involves a dispute as regards f share of a field called Kalaii-kumbura which, the parties are now agreed, is depicted as lots 1 and 2in plan Xo. 1410 of the 9th of June 1951 made by E. R. Claasz, LicensedSurveyor, and filed of record marked X, lot 3 having been excluded infavour of the 1st defendant.
Admittedly one Dingiri Menike Kumarihamy alias Tikiri Kun.ari-hainy, who will hereafter be referred to by the latter name, was entitledto the gths now in dispute as well as to the rest of.this fiold. The de-volution of the other shares is unaffected by the dispute in the case.
Tikiri Kumarihamy by deed Po of 1916 gifted the fths in dispute to herson Mutu Banda. Thereafter by deed P6 of 1917 Tikiri Kumarihamy andher son Mutu Banda both jointly gifted the § to Brttana Kumarihamy,the daughter of the first named and sister of the second named. Bat tan a
612NAGAI/INGAM S^J.^JtoleU&mdd'Areichohiv. Mohamtd
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Kumarihamy died leaving a aon Gopallawa who inherited the } share andbe by deed P7 o0944 transferred the 4 to the 2nd plaintiff. In 194& bydeed 3D1 Mutu Banda purported to revoke-and cancel the deed of giftP6 of 1917, executed, it will be remembered, not only by himself but alsoby hiB mother Tikiri Kumarihamy. The 2nd, 3rd and 4th defendantsclaim the | on the footing that, the deed of gift P6 of 1917 having beenrevoked and Mutu Banda having died possessed of the $, those shareshave now devolved on them as bis intestate, heirs.
The question therefore centres round the validity of the deed of re-vocation 3T)1 of 1945, and this question depends upon the determinationof the further problem whether deed of gift P6 of 1917 was a gift by MutuBanda or whether, as contended for on behalf of the 2nd plaintiff, it wasa deed of gift by Tikiri Kumarihamy.
It is well Bottled law that a Kandyan revocable deed of gift is revoked .by the donor executing a later, and inconsistent deed.—Taldena v.Taldena1 and Molligoda v. Abeyratne RatipaWi 2.
The contention put forward on behalf of the 2nd plaintiff is that TikiriKumarihazny’B describing herself as a donor in executing the deed P6 of1917 which was not only later in point of time but also inconsistent withP6 in favour of Mutu Banda, had the effect of revoking the latter, and thatthe reason why Mutu Banda joined was to create an estoppel againsthim from his contending that he bad' rendered succour and assistanoeto bis mother which would have rendered the deed P5 irrevocable. Ido not think this contention is entitled to prevail. 1 think it is equallysettled under Kandyan Law that a deed of gift in consideration of assis-tance to be rendered to the donor is revocable subject to compensation forassistance actually rendered,—Pereira 60 and 62, Morgan’s Digest 7,Austin 177. Besides, bad Tikiri Kumarihamy executed deed P6 in herown proper person, without getting Mutu Banda to join her, such a deedwould have had the effect of revoking the earlier deed of gift, P5 of 1916.
On behalf of the 2nd to 4th defendants, however, it has been urgedthat the gift P6 of 1917 was in fact a gift by Mutu Banda and that TikiriKumarihamy joined in that deed to prevent her from effecting a revoca-tion of the deed P5 of 1916 in favour of Mutu Banda. It seems to methat this proposition too is of doubtful value. Notwithstanding the faotthat Tikiri Kumarihamy joined in the deed P0 of 1917, as there was norenunciation of the power of revocation expressed by her in either of thedeeds PS or P6, she was free by a subsequent deed inconsistent with bothPS and P6 to set at naught both these gifts. In. order to reinforce tbe argu-ment on behalf of the 2nd to 4th defendants, the express terms containedin the deed Betting out the title of the donora have been referred to, andthe deed says that " the premises (donated) … -. are held and
possessed by us under and by virtue-of the deed of gift No. 8879 dated10th March, 1916, and attested by J. W. A. Illangatilleke, NotaryPublic;” PS.•
It has been aBked why, if Tikiri Kumarihamy was the true donor onthe deed P6, the title of the donors is rented as PS of 1916. Thatquestion has received no adequate answer at the hands of the 2ndplaintiff.
1 7 Balaaingham 133.* 7 S. C. C. 117.
NAGALINGAM SJP.J.—Lokubanda Arachehi v. Mohamed
613
The defendants also point to the fact that on the same day that P6-was executed by Tikiri Kumarihamy she executed another deed of giftIDb,whereby she gifted to a grandson of hers certain other lands the titleto which she recites as deed No. 914 dated 14th May, 1855, and attestedby Don Carolis de Silva Siriwardene, Notary Public. That the deed herereoited is the identical deed under which Tikiri Kumarihamy was entitled,inter alia, to tbe § share in dispute and it was this title that she had reoitedin making the gift by deed P5 to her son Mutu Banda are clear from therecital in the deeds. It is pointed out that if Tikirihamy was in fact thedonor or oven part donor there was not the slightest difficulty in herhaving recited the same title deed of 1855 as the title under which sheheld and possessed the shares of which she was making a gift toher daughter Battana Kumarihamy by dei d P6, .for the Notary hadparticulars of the deed of 1855. I think there is great force in thislatter contention.
It seems to me that on a careful consideration of all the circumstancesthe conclusion that must be reached is that Mutu Banda who had re-ceived a largo number of lands under the deed P5 of 1910 and had dis-posed of most of thorn, feared that if he continued to possess the landsdealt with unitor PG of 1917, he might lose those as well and not be in aposition to render succour and assistance to his mother, and the mothorwithout doing any act such as the execution of a subsequent deed in-consistent with the deed of gift P5 of 1916 which would have had theeffect of bringing about strained feelings between mother and son, per-suaded the am to make a gift to the sister ; and the son in his turn, in orderto provide an assurance of succour and assistance being rendered to themother, got her as well to join the deed as a donor in order that tho doneemay bo required expressly to render succour and assistance not only tohimself but also to bis mother.
Tho viow I tlerofore take is that on any other construction thedifficulties that arise on the case presented by the 2nd plaintiff cannotbe satisfactorily solved.
The learned Counsel for the 2nd plaintiff, however, submitted that uconvenant whereby succour and assistance is to be rendered to u partyother than the donor is not recognized under the Kandyan Law. But noauthority has been cited for that proposition ; nor even any passage froma text book writer.
Having regard to the nature of the doeds of gift under Kandyan Law-anil the principles underlying their rovocability, and tho position ofparents in a Kandyan family, I do not think it could be said that a pro-vision in a gift by a brother to a sister that the sister should look after andrender succour and assistance to their mother is repugnant to any con-ception of tho Kandyan Law. In fact sucli a provision merely giveseffect to tho elementary principles of natural feelings and justice.
I would therefore hold that the deed of gift P6 of 1917, though exe-cuted by Tikiri Kumarihamy and Mutu Banda, was in fact a donation byMutu Banda himself in favour of his sister and that being a revocable deedof gift Mutu Banda was entitled by deed 3D1 of 1945 to revoke it. In thoresult I set aside tho judgment of the learned District Judge in so far as it
514
Paramasivam-v. Commissioner for Registration of Indian and
Pakistani Residents
declares the 2nd plaintiff entitled to $ share of the filed. The 1st plaintiffhowever will be declared entitled to 4 share of the field and he will alsobe entitled to damages at the rate of Rs. 37*60 per annum from 1stDecember, 1649, till he is restored to possession.
The 2nd to the 4th defendants Will pay to the 1st plaintiff a quartershare of the costs in the District Court but he will be entitled to no costs ofappeal. The 2nd plaintiff will pay the 2nd, 3rd and 4th defendants thecosts of action and of the appeal.
E*eknasdo A.J.—I agree.
Appeal allowed_