015-NLR-NLR-V-16-MUDIYANSE-et-al-v.-BANDA-et-al.pdf
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Present: Lascelles C.J. and Pereira J.
I9ti
MUDIYANSE et aL v. BANDA et ah
231—D. C. Kegalla, 3,410.
Kandyan law—Deed of giftr^Consideration in part money and in part
assistance to be rendered in ike future—Revocation.
A Kandyan deed of gift was given by reason of the love andaffection of the donor to the doneesv and of divers other goodreasons, .and also with the object of obtaining assistance andsuccour, and also in consideration of the sum of Bs. 100, which wasabout a tenth of the value, paid by the donees. The deed did notcontain a clause renouncing the right of revoking the donation.
Held, that the deed of donation was revocable; the donee wasdeclared entitled to receive back from the donor's representativesthe sum of Bs. 100, and to be compensated for improvements madeby him to the property.
Pebeira J.—Under the Kandyan law a deed which purports toconstitute a donation, and which is presumably intended by thedonor to operate as a donation, and is accepted by the donee assuch, whatever the motive for the deed may be, is, as a generalrule, revocable. This rule must be followed in all cases, unless thespecial circumstances of any particular case render it manifestlyunfair that it should be applied to it. Thus, where a deed isexecuted in consideration of something to be done in future by thedonee, and that thing is actually done by him, having been inducedthereto by reason of the execution of the deed, the deed should,on grounds of natural equity, be deemed to be irrevocable ; butit is doubtful that a donation for the past consideration should beallowed to be regarded as an exception to the rule.
rpHE facts appear from the judgment.
Bawa, K.C., for plaintiffs, appellants.
A. St. V. Jayewardene, for defendants, respondents.
Cur. adv. vult.
October 31, 1912. Lascelles C.J,—
The deed of gift under consideration purports to be given byreason of the love and affection of the donor to the donees, and ofdivers other good reasons, “ and also with the object of obtainingassistance and succour, and also in consideration of the sum ofBs. 100 paid by the donees.*’ The deed does not contain the clause
frequently found in similar instruments renouncing the right ofrevoking the donation.
The question, for determination is whether such a deed is revocableby the donor, on the ground that the donees have not given thepromised succour and assistance. In order to decide the question,it is necessary to have regard to what appears to be the real natureof the transaction and the intention of the parties; viewed, ofcourse, by the light of Kandyan custom and law.
Now, but for the circumstance that the donation purports to havebeen made partly in consideration of Bs. 100, there would be noroom for- doubt. The deed would in no way have differed from thecommon form of donation by which Kandyans are accustomed tomake provision for their old age. The property is given to relationson the condition that the latter should help the donor. If thedonees fail to carry out this condition, the deed is revocable byKandyan law. The question is thus whether a donation whichwould otherwise be revocable loses the character of revocabilityby reason of the fact that it is expressed to be made in part for amonetary consideration.
What was the intention of the parties? On the face of the deed,it is clear that the object which the donor had principally in viewwas to secure the future assistance of the; donees. Is it reasonableto suppose that the donor, by accepting a sum of money representingone-tenth of the value of the property, intended to make the trans-action an unconditional transfer, so as to deprive himself of allsecurity for receiving succour and assistance from the donees?The answer must clearly be in the negative. In my opinion thedecisions of the Full Court in Tikiri Rumarihamy v. De Silva 1 and' that of Wendt J. and Wood Renton J. in the same case 2 do notconstitute any authority in favour of the irrevocability of the deednow in question, as the terms of that deed differ in the most essentialparticulars from those of the deed which was the subject-matter ofthe decision in Tikiri Rumarihamy v. De Silva.1 Here the donationwas made partly, and, as I hold, principally, in consideration offuture services to be rendered by the donees, and there is no clauserenouncing the power of revocation. In the case to which I havereferred, the deed was given entirely for services already rendered,and the deed contained a covenant that the donor and her descend-ants are bound by the donation, and would not dispute it. Theform oi the donation was such as to displace the presumption ofrevocability.
In the present case the fact that some monetary considerationwas paid on the execution of the deed is not enough to indicate anintention on the part of the donor that the deed should not, likeordinary Kandyan deeds of gift, be revocable.
I agree with the order proposed by my Brother.
1 {1909) 19 N. L. R. r*.* (19G6) 9 N. L. R. 902.
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Pekeiba J.—
The question in this case is whether the deed of gift No. 3,964,dated October 15, 1908, executed by Punchirala in favour of thedefendants and two others, was revocable under the Kandyan law.The deed on the face of it (according to th.e translation filed ofrecord) purports to be a deed of gift madei by the donor in favourof the donees owing to the “ love and affection " borne by theformer to the latter, “ and also with the object of obtaining assistanceand succour, and .also in consideration of the sum of Bs. 100 paidby the donees to the donor." In the deed by which the donorrevoked this deed he sets forth, as his reason for the revocation, thefact that he got no assistance and succour from the donees, andthat it had become necessary to raise money for his sustenance.The District Judge relies on the case of Tikiri Kumarihamy v.De Silva,1 in which, as he himself states in hi$ judgment, the rulingwas that a Kandyan deed of gift made for past services renderedby the donee to the donor was irrevocable; but it has to be bornein mind that in the present case a part of the consideration wasfuture services to be rendered by the donees to the donor. TheKandyan law, pure and simple as it seems to me, is that, subjectto one or two exceptions which are not worth noticing here, a .deedof gift, that is to say, a deed to constitute a donation, and whichis intended by the donor to operate as a donation, and is acceptedby the donee as such, whatever the motive for the deed may be,is revocable (see Armour's Grammar of the Kandyan Law 90).That being the law, it must, I think, in all cases bo followed, exceptin a case to the special circumstances of which it is quite manifestthat it was not intended to apply in all its rigour. As observed byan eminent Judge, “it is far more important the law should beadministered with absolute integrity than that in this case or thatthe law should be a good law or a bad one " (Lord Coleridge, Beg.v. Ramsey2).~~ In a recent'case" that was argued before my brotherEnnis and myself, I expressed my opinion that the Kandyan lawas to the revocability of deeds of gift, so long as it is not modifiedby the Legislature, should, as far as possible, be given effect to(21,338 D. C. Kandy, circa September 25, 1912). I expressedmy view there that a past consideration was no considerationat all, and that, as laid down by Anson in his work on the Lawof Contracts 99, it was a “ mere sentiment of gratitude orhonour prompting a return for benefits received," and Idoubted very much the wisdom and expediency of making adonation for a past consideration an exception to the rule as to therevocability of deeds of gift. In my opinion it is only where a deedof gift is executed in consideration of something to be done in futureby the donee, and that thing is actually done by him, having beeninduced to do so by the execution of the deed that the deed should,
i {1909) 12 N. L. R. 74.* (2838) Cab. 4 Ellis, Q. B: D. Rep. 134.
1012.
PbBBEBA J.
Mudiyamea. Banda
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on grounds of natural equity, be deemed to be irrevocable. Thatis, indeed, the Kandyan law. Armour, at page 95 of his work,says: “ Some gifts are irrevocable; for instance, if the proprietorexecuted a deed, and thereby made over his lands to another person,stipulating that the donee shall pay off the donor’s debt’s and alsorender assistance and support to the donor during the remainderof his life, and if the said deed contain also a clause debarring thedonor from resuming the land and from making any other disposalthereof,' if the donee did discharge the said debt, he will haveacquired thereby the rights of a purchaser tp the lands in question,and consequently that deed will be irrevocable; but the donee,although he acquired the title of purchaser, will yet continue underthe obligation of rendering assistance and support to the formerproprietor.” Here the motive, so to say, for the deed was thepromise on the part of the donee to pay ofE the donor’s debts andto render him assistance. He had done the former, and, apparently,he was doing the latter. In the present case, however, the doneeomitted altogether to render assistance to the donor, and he wastherefore not entitled to claim for his deed exemption from theoperation of the general rule permitting revocation of deeds of gift.
I should, before closing, like to say a word about two at least ofthe cases referred to in the course of the argument. In TikiriKumarihamy v. De Silva 1 Hutchinson C.J. says: “ This case isconcluded by the decision of the Full Court in D. C. Kurunegala,13,801, reported in 3 Lorenz 72**—a mistake for 76; but onreference to the latter case, it will be seen that the deed in questionin it was a deed granted not only in consideration of past services,but of future services as well. And so in the case of Henaya v.Rema,2 the consideration for the gift, inter alia, was abstention (thatis, in the future) on the part of the donee from recovering moneylent to the donor, and apparently an undertaking by the donee torender ” assistance for the future.” In Tikiri Kumarihamy v. De.Silva 1 Middleton J. observes: “ In my opinion the ruling laid downby the Full Court in Bologna v. Punchi Mahatmaya,3 taken in con-junction with the ruling of the Full Court in Kiri Mentha v. Ganrala,4-should guide the decisions whether or not a Kandyan deed of giftis revocable or not.” Both these cases, especially the latter, appearto me to support the views that I have expressed above. In thelatter case the Supreme Court held as follows : “ The SupremeCourt thinks it dear that the general rule is that Kandyan deedsof gift are revocable, and also that before a particular deed is heldto be exceptional to this rule, it should be shown that the circum-stances which constitute non-revocability appear most clearly on’ the face of the deed itself. The words in the present deed as toservices ‘ continued to be rendered ” do not appear to the Supremei (1909) U N. L. R. 74.3 Ram. 63 68,195.
3 (1909) 1 S. C. C. 47.4 3 Lorenz 76.
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Court to be sufficiently clear and strong. ’ ’ The -concluding portionof this passage clearly me.ans that if the words as to services continuedto be rendered were clear, and such services were actually rendered,the deed would be an exception to the rule.
For the reasons given above I would set aside the judgment, andenter judgment for the plaintiffs in terms of the first and secondprayers of the plaint. No execution will issue until the plaintiffspay the defendants, or deposit in Court for their benefit, the sum ofEs. 100 paid by them to the donor, and such compensation—to beassessed by the District Judge—as may be due to the defendants forimprovements, if any, effected by them on the land. Each partywill bear his own costs, so far, in both Courts. *
1912.
Pebeiba J.
Mudiyansea. Banda
Set aside.