P. B. RATNAYAKE v. M. S. B. J. BANDARA

021-SLLR-SLLR-1990-V-1-P.-B.-RATNAYAKE-v.-M.-S.-B.-J.-BANDARA.pdf


156
Sri Lanka Lav/ Reports
(19901 1 Sri L.R.
P.B. RATNAYAKE
V.
M.S.B.J. BANDARA
SUPREME COURT.
RANASINGHE, C.J.. TAMBIAH. J.. H. A. G. de SILVA ,J„ G. P. S. de SILVA. J..BANDARANAYAKE, J.. MARK FERNANDO. J., AMERASINGHE. J.. KULATUNGA. j..and DHEERARATNE, J.
S.C. No. 4/86- C.A. No. 579/76 (F)- D.C. MAT ALE No. 2059/LMARCH 22 and 23. 1990.
Kandyan Law – Kandyan Law Declaration and Amendment Ordinance, No. 59 oi 1939ss.5(1) 34 (1) 75 (!) (d) – Kandyan Deed oi Gilt. Donation inter vivos – Irrevocability -Validity oi revocation and gilt to another – Action lor declaration ol title – Is Privy Counciljudgment binding on the Supreme Court ■ Fideicommissum -Does it ailed revocability -Application of Roman Dutch Law.
On 11.6.1960 one Tikiri Kumarihamy Ellepola by Deed No. 8247 gifted certain land to hersister Jayalatha Kumarihamy as a donation inter vivos absolute and irrevocable subject tothe condition that the donee shall not mortgage or otherwise alienate the said premises butshall only possess and enjoy the fruits and produce thereof and on her death the land wasto devolve on her children and in the event of her dying issue on the donor and her children.The gift was accepted by the donee. Jayalatha Kumarihamy by Deed No. 5204 of
gifted the said land to her husband Ratnayake the defendant-appellant. On
Tikiri Kumarihamy by Deed No. 39373 revoked the Deed of gift No. 8247 andon 17.2.1975 by Deed No. 72 gifted the said land to her son Bandara the plaintiffrespondent who sued Ratnayake the defendent-appellant for declaration of title.
The majority decision of the Privy Council in Dullewe v. Duttawe 71 NLR 289 held that aKandyan Deed of gift is revocable unless the right of revocation is expressly renounced inthe particular manner stated in s. 5( 1) (d) of the Kandyan Law Declaration and AmendmentOrdinance, No. 59 of 1939.
Held:
The Privy Council judgment in Dullewe v. Dullewe is not binding on the Supreme Court.Though that judgement is of great value the question decided there is open to review.HELD Further : (Ranasinghe, C.J., H.A.G. de Silva, J., G.P.S. de Silva, J., andKulatunga J., dissenting):
The Kandyan Law Declaration and Amendment Ordinance, No. 59 of 1939 is anOrdinance to declare and amend the Kandyan Law. It seeks to amend the Kandyan Lawand not to make a mere restatement ol the law as it was prior to 1939 when the intentionto renounce the right to revoke was inferred or deduced from the particular words used.The amending Ordinance has enacted a uniform rule requiring an express and not merelyinferential renunciation ol the right of revocation. The words "expressly renounced” in s5(1) (d) of the Oroinance recognise a pre-existing right to revoke which every Kandyandonor had in Kandyan Law. What the Ordinance contemplates is an express and
sc
157
P. B. Ratnayake v. M. S. B. J. Bandara
deliberate renunciation by the donor ot his right to revoke. From the words “absolute andirrevocable" it may be implied that the Donor intended to revoke but such an expressionwould not constitute an express renunciation of the right to revoke.
There is a further requirement that the renunciation must be effected in a particular way,viz, by a declaration containing the words " I renounce the right to revoke" or words ofsubstantially the same meaning.
The Ordinance by s. 5(1) (o) has now vested in the Donor a statutory right to revoke andhe is required to exercise that right in a particular way.
The words "absolute and irrevocable" are only an adjectival description of the gift but theessential requirement is a transitive verb of express renunciation. Words merely of furtherassurance are insufficient.
The use of the words "absolute and irrevocable" and "to hold the premisess for ever" donot satisfy the requirement of s. 5(1) (d) of the Ordinance. Deed No. 8247 was revocable.
Though a Deed of gift creating a fideicommissum is valid under the Kandyan Law andthe Court will resort to Roman Dutch Law to ascertain whether the Deed creates a fideicom-missum other connected matters must be determined according to Kandyan Law. AKandyan Donor can impose burdens on the donee without giving up his right to revoke. Theexpected gifts are contained in s. 5(1) sub-paragraph (a) to (d). The Court cannot add tothis list of irrevocable gifts a deed of gift subject to fideicommissum.
The Abolition of Fideicommissum Law. No. 20 of 1972. which came into operation on12.05.72 did not by ss. 4 and 6 place the property in the hands of Jayalatha Kumarihamyabsolutely. The right of revocation is vested in the Donor. The donee is not freed from beingsubject to this right by creation of a fideicommissum.
Cases referred to :
Tikiri Banda Dullewe v. Padma Rukmani Dullewe 71 NLR 289 (P.C)
Punchi Banda v. Nagasena 64 NLR 548
Kirihenaya v. Jotiya 24 NLR 149
Dharmalingam v. Kumarihamy 27 NLR 8,13
Ukku Banda v. Paulis Singho 27 NLR 449
Bogahalanda v. Kumarihamy 8 Ceylon Law Recorder 9!
Jams Singho and Others v. Dingiri Banda 5 Times Law Reports 77
Gunadasa v. Appuhamy st al 36 NLR 122
Biso Menika v. Punchiamma et,al at NLR 430
Ukku Amma v. Dingiri Menika 69 NLR 212
Tammika v. Palipana 70 NLR 520
Dullewe v. Dullewe 70 CLW 55(S.C.)
Sumanasiri v. Tillekeratne Banda 74 NLR 155
MoHigoda v. Sinnetamby 7 SCC 118, 119
Assistant Government Agent, Kandy v. Kalu Banda et al 23 NLR 26, 27
Menike v. Banda 25 NLR 207
Thepanisa v. Haramanisa 55 NLR 316
Molligoda v. Keppitipola (1858) 3 Lorenz 24
Kiri Menika v. Cau Rala & Others (1858) 3 Lorenz 76
158
Sri Lanka Law Reports(1990] 1 Sri L.R.
Bologna v. Punchi Mahathmaya (1866) Ram (1863 to 1868) 195
Kumarasamyv. Banda 62 NLR 68
Tikiri Bandara v. Gunawardene 70 NLR 203
Tikiri Kumarihamy y. De Silva 12 NLR 74 (D.B)
Salpalhamy v. Kiri Ettena (1944) Morg . Dig 373
Tikiri Kumarihamy v. De Silva 9 NLR 202
APPEAL from judgment of the Court of Appeal report et ai 1986 1 Sri LB 245
Dr. H. W. Jayewardene, Q.C. with L. Perera, H. Amerasekera, and H. Cabraalfor appellant.
H.L. de Silva, P.C. with G. Dayasiri, S.J., V. Cossette Tambiah and P.M. Rainawardenefor respondent.
Cur.adv.vult.
May 28, 1990.
RANASINGHE, C. J.,
This appeal has been directed to be heard by this Bench – comprisingnine judges of this Court-in terms of the provisions of Article 232 (3) of theConstitution, in order to decide the question of law which arises in thiscase – whether the majority decision of this Privy Council, delivered on4.12.1968, in the case of Tikiri Banda Dullewe v. Padma RukmaniDullewe, (1) at a time when the Privy Council was the final Court of Appealunder the then legal system prevailing in this Island, in regard to theconstruction of the provisions of s. 5(1) (d) of the Kandyan Law Declara-tion and Amendment Ordinance No. 39 of 1938 (Chap. 59), is the correctview of the law; or whether this Court should affirm the dissentingjudgment delivered in that case by Lord Donovan, which said view of thelaw also finds support in the judgment of Sansoni C. J., in the case ofPunchi Banda vs. Nagasena (2).
Appeals to the Privy Council from the Supreme Court were abolishedby Act No. 44 of 1971. That this Court, as constituted under the provisionsof the Constitution of 1978, is now not bound by the said judgmentdelivered by the Privy Council and that this Court is free fo consider thecorrectness of the said judgment of the Privy Council, which had beendelivered on an appeal from the Supreme Court, was not in dispute; andthe argument before us proceeded on the basis that this Court is now freeto take a different view.
sc
159
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
The facts and circumstances relevant to this appeal are set out in thejudgment of (G.P.S.) de Silva, J., which I have had the advantage ofperusing in draft. The state of the law on this particular question, as laiddown by the decisions of the Supreme Court prior to the enactment of theKandyan Law Amendment and Declaration Ordinance, No. 39 of 1938,have also been fully set out in the said judgment. So too the decisions .pronounced by the Supreme Court after the said Ordinance was enactedand upto the time of the decision in the Dullewe case (supra). In thecircumstances I do not propose to set down the facts and circumstancesand the relevant judicial decisions prior to the decision in the Dullewecase (supra).
The provisions of s 5(1) (d) of the said Ordinance No. 39 of 1938 requirea donor, who wishes to renounce the right he has, under the KandyanLaw, to revoke a gift made by him, to make “a declaration containing thewords 'I renounce the right to revoke', or words which are of substantiallythe same meaning.” If, however, the language of such deed of gift is notEnglish the donor is then required to use “the equivalent of those wordsin the language of the instrument
According to the provisions of this paragraph, therefore, when the deedof gift is executed in the English language, what is required to constitutean express renunciation is a declaration which contains either the words“I renounce the right to revoke,"or else otherwords which have “substan-tially the same meaning” as those which have been so expressly enacted.The relevant deed of gift in this case is the document P1: and Pi is in theEnglish Language.
The operative words embodied in P1 are:
“For and in consideration of the natural love and affection which I
have and bear unto and for diverse other good causes and
considerations we hereunto specially moving do hereby give, grant,convey, assure and make over as a donation inter vivos absolute andirrevocable unto the said donee”
A consideration of the majority judgment of the Privy Council makes itclear that the majority has taken the view that, where a donor exercisesthe option and uses other words which have “substantially the samemeaning", such group of words too must contain the same features, viz
160
[ 1990) I Sri L.R.
Sri Lanka Law Reports
a transitive verb and an object of such verb, as exist in the group of wordswithin the inverted commas in'the aforesaid paragraph (d).
What is required by section 5(1) (d) of the said Ordinance to constitutean express renunciation is a declaration as set out in the said paragraph
. The declaration so required could be made by using either the specificwords set out therein within the inverted commas, or other words, whichconvey "substantially the same meaning." The emphasis, to my mind ison the meaning of the words, which constitute the declaration, rather thanon any particular form or structure the declaration constituted by suchwords should take or be expressed in. The stress so laid is upon thesubstance of the declaration rather than on 1he lorm it should take.
If the emphasis was to be not only upon the substance of the words, butalso upon the form in which the alternative declaration should also bemade, then the Legislature could well and easily have stopped with theexpress words set out in para (d) of the said section 5(1), and need nothave proceeded to spell out any options. In this connection it has to benoted that, even though the Privy Council had considered it necessary toobserve that the Report of the Commissioners was being looked into inorder only to obtain accurate information as to the evil or defect v^hich wasintended to be remedied, yet, Sansoni, C. J., has in PunchiBanda's case(supra), observed that the Legislature had not accepted the recommen-dation of the Kandyan Law Commission “so far as it relates to a clauseor to a prescribed form.” The majority judgment does not go to the extentof expressing the view that a meaning, which is substantially the same,cannot be obtained unless the other group of words is also structured orformulated in the same manner, and contain the same features as ihewords set out in the said paragraph (d) within inverted commas.
The distinction sought to be drawn between a declaration expressedthrough a transitive verb and one through an adjectival description, has,with respect, been effectively dealt with by Lord Donovan in the dissentingjudgment. Where a person states: “This is my decision (or act). It isabsolute. It is irrevocable, "is there any doubt but that he is expresslymaking it known that his decision (or act) is a definite one, that it isunconditional and that it is irreversible and that he, has the right to cancel,vary, modify, withdraw it, will not do so, that he, who will not exercise hisright to do so? There has been no instance, before the Ordinance No. 39of 1938 (supra), where the Supreme Court had held that the words
SCP. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe. C.J.)161
"absolute and irrevocable" were not sufficient to constitute a renunciationof a donor’s right, under the Kandyan law, to revoke his gift.
The relevant words in P1, which are relied on, are, in my opinion, wordswhich taken together convey quite expressly, if not the same, at least ameaning, which, in substance, is equivalent to that which is being soughtto be expressed and conveyed by the use of the express declaration setout within inverted commas in para (d) of the said s. 5(1).
In this view of the matter, I am of opinion that the judgment of LordHodson, who spoke for the majority in Dullewa's case (supra), should nolonger be accepted as setting out the correct interpretation of the iaw,embodied in s. 5(1) (cf) of Ordinance No. 39 of 1938 (supra) on thisquestion: that the dissenting judgment of Lord Donovan in the said case,and the judgment of Sansoni, C.J., in Punchi Banda's case (supra), setout the correct view of the law which should now be followed.
In the view I take upon this question of law, it is not necessary toconsider the other question of law argued – based upon the principles ofthe law of fideicommissum – by learned Queen’s Counsel for thedefendant-Appellant.
For these reasons, I make order allowing the appeal of thedefendant-Appellant. The judgment of the learned District Judge is setaside; and the plaintiff- respondent's action is dismissed. Parties to beartheir own costs.
TAMBIAH, J.
This appeal raises once again the question of the irrevocability of aKandyan Deed of Gift.
The facts are as follows
On June 11,1960, one Tikiri Kumarihamy Ellepola by Deed No. 8247iin consideration of the natural love and affection and diverse othercauses and consideration conveyed to her sister Jayalatha Kumarihamy,her heirs, executors, et al “ as a donation inter vivos absolute andirrevocable the land and premises called Walawwewatta Alias AtapattuWalawwa. She further declared that the donee and her heirs, executors
162
Sri Lanka Law Reports
119901) ! Sri L.R.
et. al. were to “ have and hold the said premisestor ever" and
that the “ donee shall not mortgage or otherwise alienate the saidpremises but shall only possess and enjoy the fruits and produce thereofand on her death the same shall devolve on her children and in the eventof her dying issueless on me the said donor and my children”. The gift wasaccepted by the donee. Jayalatha Kumarihamy on 5th October, 1972 byDeed No. 5204 gifted the said land to her husband, the defendant -appellant. On 31st January, 1973, Tikiri Kumarihamy by deed No. 39373revoked the Deed No. 8247 and on 17th February, 1975, by Deed No.72 gifted the land to her son, the plaintiff – respondent. The plaintiff -respondent sued the defendant – appellant for a declaration of title to theland. The learned District Judge held that Tikiri Kumarihamy had validlyrevoked the Deed of Gift No. 8247 and that the plaintiff – respondent gottitle to the land on the Deed of Gift No. 72.
On appeal, the Court of Appeal dismissed the appeal holding, inter alia,that it was bound by the majority decision of the Privy Council in Dullewev. Dullewe (1) and that Deed No. 8247 was revocable by the donor TikiriKumarihamy Ellepola. Seneviratne J., however, expressed the view thatthe dissenting judgment of Lord Donovan in Dullewe‘s case was correct.Both learned Judges of the Court of Appeal agreed that leave should begranted to the defendant – appellant to appeal to the Supreme Court onthe substantial point of law as to whether Deed No. 8247 of 11.6 50 wasrevocable.
The majority judgment of the Privy Council, though of great persuasivevalue, is not binding on the Supreme Court which is now the highest andfinal superior Court of Record in the Republic. We are, therefore, free toreview the decision of the Privy Council and decide whether the majoritydecision delivered by Lord Hodson, or the dissenting judgment by LordDonovan, is correct. While learned Queen's Counsel for the appellantcontended that the majority decision delivered by Lord Hodson is wrongin law and that the dissenting judgement of Lord Donovan is the correctone, learned President's Counsel for the plaintiff – respondent, however,maintained the contrary.
It was the contention of learned Queen's Counsel that the words in theDeed of Gift “as a donation inter vivos, absolute and irrevocable
and to hold the said premises for ever,” are
sufficient to conform to the requirements of the Ordinance.
sc
163
P. B. Ralnayake v. M. S. B. J. Bandars (Ranasinghe. C. J.)
The Deed of Gift No. 8247 was executed on 11 th June, 1960. The parties*o the case are subject to the Kandyan Law. The Kandyan Law Declarationand Amendment Ordinance, No. 59 of 1939, therefore, applies to thiscase. The question whether Deed No. 8247 is revocable or not dependson whether the words of Deed of Gift No. 8247, reproduced above, satisfythe requirements of 5 (1) (d) of the Ordinance. The preamble to theOrdinance states that it is “an Ordinance to declare and amend theKandyan Law in certain respects". The relevant provisions of the Ordinanceare as follows
S. 4 (1): Subject to the provisions and exceptions hereinafter contained,a donor may, during his lifetime and without the consent of thedonee or of any other person, cancel or revoke in whole or in. part any gift, whether made before or after the.commencementof this 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 in anyimmovable property shall not. if such right, title or interest hasaccrued before the commencement of this Ordinance, beaffected or prejudiced by reason of the cancellation or revoca-tion of the gift to any greater extent than it might have been if thisOrdinance had not been enacted.
S. 5 (1): Notwithstanding the provisions of section 4 (1), it shall not belawful for a donor fo cancel or revoke any of the following giftswhere any such gift is made after the commencement of thisOrdinance
(a) any gift by virtue of which the property which is the subjectof that gift shall vest in the trustee or the controllingviharadhipafi for the time being of a temple under theprovisions of section 20 of the Buddhist TemporalitiesOrdinance or in any bhikkhu with succession to his sacerdotalpupil or pupils or otherwise than as pudgalika for the benefitof himself and his heirs, executors, administrators orassigns ;
(b) any gift in consideration of and expressed to be inconsideration of a future marriage, which marriage hassubsequently taken place ;
164
Sri Lanka Law Repons/1990j 1 Sri L.R.
any gift creating or effecting a charitable trust as definedby section 99 of the Trusts Ordinance ;
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 right torevoke” or words of substantially the same meaning or, ifthe language of the instrument be not English, the equivalentof those words in the language of the instrument:
Provided that a declaration so made in any suchsubsequent instrument shall be of no force or effect unlesssuch instrument bears stamps to the value of five rupeesand is executed in accordance with the provisions of thePrevention of Frauds Ordinance or of the Deeds andDocuments (Execution before Public Officers) Ordinance.
(2) : Nothing in this section shall affect or be deemed to affect therevocability of any gift made before the commencement of thisOrdinance.
It is necessary to ascertain why the Legislature enacted Ordinance No.59 of 1939. What was the evil or defect which the Ordinance was intendedto remedy ?
The general rule under the Kandyan Law was that all Deeds of Gift,even transfers by sale, were revocable by the grantor in his life time,subject to the right of the grantee to be compensated by the grantor torimprovements.
Armour ("Grammar of Kandyan Law", p.91) says –
“ all Deeds of Gift excepting gifts made to priests and temples, whether
conditional or unconditional, are revocable by the donor in his life. ”
Armour adds (ibid pp. 92,93) that certain other Deeds of Gift also camewithin the exception, viz, grants made in consideration of payment ofdebts and future assistance and support, and containing a clauseenouncing the right to revoke, grants in consideration of past assistance
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
165
with a renouncing clause, grants to a public official in lieu of a fee with arenouncing clause, and settlements on the first wife and children beforecontracting a second marriage. It was in dealing with the exception thatuncertainty and confusion were created by the various decisions of theCourts. One such exception which has led to difference of opinion in our■ Courts was whether a Deed became irrevocable by the donor renouncinghis right to revoke it. In Kirihenaya v. Jotiya (3) the Deed of Gift containedthe words" I shall not revoke this Deed of Gift at any time in any manner,orchange it in any way after date thereof’. The Court held that a KandyanDeed of Gift, which expressly renounced the right of revocation and whichis not dependant on any contingency, was irrevocable.
Subsequent to the decision in Kirihenaya v. Jotiya (supra), it wouldappearthat our Courts have been concerned with deciding whetheror notthe particular words by which a donor purported to renounce his rightsufficiently indicated his intention to renounce it. In Dharmalingam v.Kumarihamy (4) the words “ not to raise or utter any dispute whatsoeveragainst this gift and donation" were construed as being insufficient toexhibit an intention to renounce the right of revocation. In Ukku Banda v.Paulis Singho (5) the Deed stated that the gift should be “ absolute andirrevocable” and that the donee should have the property" absolutely forever.” The Court held that the donor had clearly and expressly renouncedhis right of revocation. In Bogahalanda v. Kumarihamy (6) the Court heldthat the donor by the use of words “ I hereby renunce the right to revoke
or cancel these premises do hereby grant unto him” had
dabarred himself from revoking the Deed. In James Singho and Othersv. DingiriBanda (7), the Deed described the grant “as a gift irrevocable"and stated that the grantees should “own from this day and possess forever”. The Court following the decision in Ukku Banda v. Paulis Singhoheld that the Deed was irrevocable. In Gunadasa v. Appuhamy et. al.(8)(36NLR 122) the Deed stated that the donees shall “possess the said
properties hereby donatedfor ever without any interruption
whatsoever or deal with the same in whatsoever manner they maydesire". The Court held that the donor did not renounce his right ofrevocation by the use of words “for ever" and that the clause could notbe construed as containing a renunciation of the ordinary right of thedonor to revoke such a Deed.
As doubts had arisen on account of various decisions of our Courtswhen dealing with exceptions to the general rule that a Kandyan Deed of
166
Sri Lanka Law Reports11990j 1 Sri L.R.
Gift is revocable, in 1927 the Kandyan Law Commission was appointedto deal with the matter. In September, 1935, the Commission issued itsReport. This Report may be looked at "not to ascertain the intention of the
words used in the subsequent Actbut becauseno more
accurate source of information as to what was the evil or defect which theAct of Parliament now under consideration was intended to remedy canbe imagined than the Report of that Commission” (per Lord Hodson inthe Dullewe case, p. 293). In paragraphs 44 and 58 the Commissionstated.
44. "Revocability of Deeds of Gift.- Although the General rule was thatall deeds of Gift were revocable by the grantor in his lifetime, thisrule seems to have had certain exceptions and it is in laying downwhat the exceptions were that great difficulty, not to say someconfusion, has arisen owing to the very indefinite state into whichthe law drifted as a result of the construction of Deeds ol Gift, thelanguage of which lent itself to different interpretations.
58. On a consideration of all the authorities bearing on the point we havecome to the conclusion that to minimize the evils of litigation and togive a certain amount of security and stability to titles derived bydeeds of gift, a clause renouncing the right to revoke made in explicitterms and according to a form prescribed should in itself besufficient to render a deed, otherwise revocable, absolute andirrevocable, and we accordingly make this recommendation. Asregards the actual working of the form of renunciation, we do notthink it necessary to make any suggestion, as this is a matter whichmay be left to the Legal Draftsman if and when an Ordinance isdrafted to give effect to the recommendations we have made in thisreport."
and in paragraph 332 of its Report, the Commission recommended asfollows : –
“ (1) The revocability of Kandyan Deeds of Gift to be retained subjectto the following exceptions, deeds of gift falling within these ex-ceptions being declared irrevocable : –
A gift where the right to revoke is expressly renounced inwriting according to a prescribed form."
SCP. 8. Ratnayake v. M. S. 8. J Bandara (Ranasinche. C. J.)167
It is this Report which led to the passing of Ordinance No. 59 of 1939.
We shall now consider the cases where the Deeds of Gift, executedafter the commencement of the Ordinance came up for construction andinterpretation by the Supreme Court.
In Biso Menika v. Punchiamma e(. at. (9), the proper interpretation tobe placed on para (b) of s. 5 (1) of the Ordinance No. 39 of 1938 cameup for consideration. The Kandyan Deed of Gift contained the words “ wedo hereby gift unto a beloved daughter of ours, Purijjala Biso Menika and
a beloved son-in-law, Muthu Banda Ekanayake for the love and
affection we bear towards them.” It was contended that by reason of thewords " our beloved son-in-law”, the Deed was expressed to be inconsideration of marriage, Windham , J. said (p. 432):
“ But this contention cannot succeed. No doubt that reference isevidence of the fact ( of which there was abundant other evidenceoutside the deed) that the gift was in consideration of a future marriage.But s. 5 (1) (c/) in addition to proof of this fact, requires that the gift shallbe expressed to be in consideration of future marriage; and this in myview means that the deed shall state expressly, and not merely usewords from which the inference might or even must be drawn that ihegift is in consideration of future marriage."
The Deed of Gift was held to be revocable.
In Punchi Banda v. Nagasena (2) the'Deed of Gift stated : “ I,
Manapaya Kulatunga Mudiyanselage Kiri 3andado hereby give,
grant, convey, make over and confirm untoas a gill or donation inter
vivos absolute and irrevocable the premises in the Schedule hereto
subject however to my life interest To have and to hold the said
premises hereby donated unto and his heirs, executors, admin-
istrators and assigns absolutely tor ever." The Court held that by the useof a single word "irrevocable ” in Kandyan Deed of Gift the donor mayunder s." 5 (1) (d) of the Kandyan Law Declaration and AmendmentOrdinance, expressly renounce his right to revoke the gift. Sansoni, J.said (p. 550):
“ The question of the revocability ot the deeds depends solely onwhether the first clause of the deeds, already reproduced, satisfies the
sc
169
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
an unrestricted right of revocation of any gift, except those referred
to in Section 5. The excepted gifts are-
fa) any gift of a specified description made to a temple ;
any gift expressed to be in consideration of a future marriage,which subsequently takes place ;
any gift creating a charitable trust;
any gift in which the right of revocation has been expressly,renounced in a declaration of renunciation”
Although the first three classes of excepted gifts need not be consideredon this appeal, I mention them in order to emphasise the intention of theLegislature that the question whether a particular deed of Gift is capableof revocation should be determinable with reasonable certainty upon anexamination of the deed. It should not ordinarily be difficult to decidewhether a particular.gift is of any of the first three classes specified inSection 5. Equally, in my opinion, it should not be difficult to decidewhether a deed contains an effective.clause of renunciation of the rightof revocation. The ordinary meaning of the words “ expressly renounced” is exactly or definitely renounced as opposed to impliedly renounced,and I am satisfied that those words have that meaning in Section 5 (3).There can be no question that in the deed I have now under constructionthe right of revocation has been expressly renounced “ in the mannerintended by the statute, namely by a definite declaration in appropriatelanguage. Having regard to the Legislature's intention that the right ofrevocationwillbeexercisableunless that right is renounced with reasonablecertainty, I am unable to accept counsel’s argument that in Section 5 (3)
“ expressly renounced “bears the meaning "unconditionally renounced”,
It was argued that the recital of the donor's expectation of receiving“succour and assistance ” is equivalent to the words “ I renounce the rightof revocation subject to the condition that the donee must render mesupport and assistance", and therefore constituted an express butconditional renunciation and that such a clause will permit revocation, ifsupport and assistance is not rendered. Rejecting this argument, H.N.G.Fernando, SPJ., said (p.214) :
“ Even if the parties did have such a condition in mind, the condition
is not expressly, i. e. , clearly or definitely, stated in the deed
Although I have assumed that the Legislature did not
170
Sri Lanka Law Reports
[19901 1 Sri L.R.
intend to render ineffective an express reservation of the right otrevocation framed in language such as that I have employed above,that assumption should not be extended to cover what can at best betermed the implied reservation contended for in this case. Since theLegislature did intend that renunciation will be effective only ii expressedin the document, then a condition qualifying the renunciation can onlybe effective if it is also “ expressed."
In Tammitta v. Palipana (11), the donor by Deed of Gift gifted theproperties ‘‘absolutely” to his nephew. The habendum clause staled :
“ To have and hold the said lands and premises hereby gifted unto the saiddonee and his heirs and executors, administrators and assigns absolutelyfor ever”. The Deed after stating that the donor “expressly renounces hisright to revoke” contained a clause whereby the donee thankfully acceptsthe said gift and “undertakes to render all succour and assistance to thedonee during his life time." The Court held that the donor had expresslyrenounced his right to revoke and, although an undertaking was given bythe donee to give succour and assistance to the donor during the donor'slife time, the undertaking was not one of the conditions on which the grantwas made to the donor by the donee.
In Dullewe v. Dullewe (12), the donor by Deed of Gift dated 26.5.1941granted, conveyed etc. “ unto the donee as a gift irrevocable but subject
to the condition hereinafter contained all those premisesTo
have and to hold the said lands and premises hereby conveyed unto thesaid donee subject to the condition that the said donee shall not sell, gift,mortgage or otherwise alienate or encumber the said premises (but maylease the said premises for a period not over five years) and after hisdeath the same shall devolve absolutely on his legal issue and in theevent of his dying without legal issue the proper y shall devolve absolutely
onTikiri Banda Dullewe. “ (This Deed is almost identical with the
Deed in the present case). Later, on 26.10.1943, the donor revoked theDeed of Gift. The question arose whether the words " as a giftirrevocable " satisfy the condition for irrevocabimy prescribed by s. 5 (1)(d ) of the Ordinance. The Supreme Court, following the decision inPunchi Banda v. Nagasena (supra) held that the use of the words “ as agift irrevocable was sufficient to indicate the gift was meant to beirrevocable and to bring it within s. 5 (1) {d) of the Ordinance. The casewent up in appeal to the Privy Council. The majority judgment deliveredby Lord Hodson, overruled the decision of Punchi Banda v. Nagasena
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
171
(supra) and held that where the right to revoke a Kandyan Deed of Giftexecuted afterthe commencement of the Ordinance of 1939 is renouncedby the donor, the renunciation is not valid unless the Deed expresslycontains a special clause of renunciation expressed in the particularmanner stated in s. 5 (1) (d) of the Ordinance. There should be adeclaration containing a transitive verb as opposed to an adjectivaldescription of the gift as irrevocable. Accordingly, the words " as a giftirrevocable ” in a Deed of Gift do not satisfy the condition for irrevocabilityprescribed by the section ; such a gift is subsequently revocable by thedonor. Lord Hodson said (p. 295, 296) :
“ The Ordinance permits revocation of any gift when the right tocancel or revoke shall have been expressly renounced by the Donor.These words recognise a pre-existing right to revoke and require anexpress renunciation either in the instrument effecting the gift or in anysubsequent instrument. There is a further requirement that therenunciation must be effected in a. particular way videlicet by adeclaration containing the words “ I renounce the right to revoke ” orwords of substantially the same meaning. The inverted commas drawattention to the words to be used. The exact words need not be usedbut if they are not used, words of substantially the same meaning arerequired. This alternative leaves no room for departure from theessential requirement of a.declaration containing a transitive verb asopposed to an adjectival description of the gift as irrevocable which isapt to describe what has been done.
Now, however, the words of the Ordinance do require that which mayfairly be described as a special clause of renunciation. The renunciationis to be expressed and not to be implied The renunciation of a gift asirrevocable does no more than imply the renouncing of an existing rightto renounce. The requirement of an express renunciation stands in theway of the acceptance of an interpretation of the words used in this case,to all intents and purposes the same words as those used in the UkkuBanda case (supra), so as to produce the result that the Donor hasalready effectively renounced his right to revoke."
Lord Donovan in his dissenting judgment said (p. 298):
The Donor here has expressly indicated that the lands were to be "agift irrevocable”. The word “irrevocable" means “not capable of
172
Sri Lanka Law Reports
(1990] 1 SriL.R.
revocation”, and the capacity to revoke obviously depends upon theexistence of a right to do so. One may therefore ask, “Who couldrevoke the gift in the ordinary way “ or “In whom would such rightordinarily exist!" The answer of course is the Donor himself. Whentherefore he uses a word which indicates that the gift is not to becapable of revocation, he is saying that he shall not enjoy the right torevoke which he would otherwise possess. In other words he isrenouncing that right. He is not using words which “substantially" meanthe same thing as the prescribed formula, but exactly the same thing.True, the Ordinance requires that whatever words are used the rightshall be “expressly" renounced. The words “as a gift irrevocable" areexpress."
In Sumanasiri V. Wekeratne Banda (13) the deed of gift containedthe words “I Rankiri give, grant etc. unto the said donee his heirs etc. by
way of gift absolute and irrevocable all those lands and premises".
G. P. A. Silva, J. with Samerawickrame J. agreeing, held, following thePrivy Council decision, that the Deed did not contain a special clause ofrenunciation expressed in the manner stated in S. 5 (1) (d).
We are in agreement with the majority judgment of the Privy Councildelivered by Lord Hodson. The Kandyan Law Declaration and Amend-ment Ordinance is an Ordinance to “declare and amend the KandyanLaw”. On the question of revocation of gifts, it seeks to amend theKandyan Law and not to make a mere restatement of the Law.
In the cases decided prior to 1939, the Courts construed the particu-lar words used by the Donor in the Deed of Gift and came to the conclusionwhether or not the language sufficiently exhibited an intention to re-nounce the right of revocation. The intention to renounce was inferred ordeduced from the particular words used by the Donor in the Deed of Gift.In the result Courts came to conflicting decisions. The Legislature wantedto put an end to the controversy and enacted the Amending Ordinancewherein it set out a uniform rule requiring an express and not merelyinferential renunciation of the right of revocation.
S. 4 of the Ordinance confers on any Donor an unrestricted right ofrevocation of any gift, except those referred to in S. 5. The excepted giftsare set out in sub-paragraphs[ (a) to (d). The excepted gift in sub-paragraph (d) is any gift in. which the right of revocation has been
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
173
expressly renounced in a declaration of renunciation containing thewords “I renounce the right to revoke” or words of substantially the samemeaning. The Court in Punchi Banda V. Nagasena (supra) analyseds. 5 (1) (d) of the Ordinance and enumerated the requirements asfollows
A renunciation of the right to revoke;
Which is express;
made by the Donor in a declaration;
containing the words "I renounce the right to revoke" or words ofsubstantially the same meaning.
The Court added that”the fourth requirement seems to be merelyillustrative of the other three". With due respect to the learned Judges whodecided that case we cannot agree with this statement.
The words “expressly renounced”, as was pointed out by the PrivyCouncil in its majority judgment, recognise a pre-existing right to revokewhich every Kandyan Donor had in Kandyan Law. What the Ordinancecontemplates is that the Donor, with full knowledge of his right to revokemakes an express and deliberate renunciation of this right to revokeeither in the Deed of Gift or in any subsequent document. The ordinarymeaning of the words “expressly renounced" is exactly or definitelyrenounced as opposed to impliedly renounced (per H. N. G. Fernando,SPJ., in Ukku Amma’s case, supra, p.213), Prior to 1939 the Courtsexamined the language in the Deeds in order to ascertain whether theDonor intended to revoke the Deed of Gift or not; it was implied or inferredfromthe part icularwords used by the Donor. Now, the Ordinance requiresthat the intention to revoke must be clearly and definitely stated in theDeed. From the words “absolute and irrevocable” it may be implied thatthe Donor intended to revoke, but such an expression would not consti-tute an express renunciation of his right to revoke.
There is a further requirement that the renunciation must be effectedin a particular way, viz, by a declaration containing the words "I renouncethe right to revoke" or words of substantially the same meaning. TheOrdinance by s.5 (1) (d) has now vested in the Donor a statutory right torevoke and he is required to exercise that right in a particular way, viz, byusing a special clause of renunciation containing either the prescribedwords or equivalent words. In either case, there must be act of renuncia-tion on the pari of the Donor indicating that he has given up his right ofrevocation. The words "absolute and irrevocable” are only an adjectival
174
Sri Lanka Law Reports
[1990] 1 SriL.R.
description, of the gift and describes the kind of gift that the Donor wasmaking and do not have substantially the same meaning as “I renouncethe right to revoke". As was rightly pointed out by learned Presidents'Counsel, by the use of words “absolute and irrevocable” the Donor is onlydescribing the consequence of his renunciation. These words are merelydescriptive of the effect of a proper renunciation.
The observations of Clarence, J., in Molligoda v.Sinnetamby (14) asto the manner in which a Kandyan donor should exercise his option olrenunciation of his right to revoke, are of great relevance.
“If it be possible for a Kandyan donor to renounce the power ofrevocation, we should require the party setting up a title based on suchrenunciation, to satisfy us that the donor understood what he or shewas doing when a voluntary deed containing so exceptionally stringenta provision was executed. In the case before us the grantor was awoman, the mother of the donee; the words relied on as amounting toa renunciation of the power of revocation appear to be such words offurther assurance as might reasonably be expected to occur in anordinary conveyance, and we are certainly far from satisfied that theDonor, when she executed the deed containing them, intendedthereby to renounce her Kandyan power of revocation. Such arenunciation, if it be possible, must certainly be express and unmistak-able, and we are not disposed to infer it from what we view as ordinarywords of further assurance."
We are of the view that the words in the Deed of Gift “absolute andirrevocable” and “to hold the said premises for ever" do not satisfy therequirements of S'. 5(1) (d) of the Ordinance. We hold that the Deed of Gift,No.8247, dated 11th June, 1960, was revocable.
The second contention of learned Queen's Counsel was that the Deedof Gift, Mo. 8247, created a fideicommissum, and that the Deed has beenaccepted by the donee; that while the concept of fidei commissum isunknown to the Kandyan Law, yet it is open to a Kandyan to utilise themechanism of the Roman Dutch Law principles of fidei commissum toentail his property for the benefit of his more distant descendants; and thatshould a Kandyan opt to do so, the rule of Roman Dutch Law that a Deedcontaining a fidei commisum, when duly accepted by the donee, rendersthe Deed of Gift irrevocable, is applicable to the case.
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe. C. J.)
175
Undoubtedly, the Deed of Gift created a fidei commissum. Though thedevice known to the Roman-Dutch Law as fidei commissum is entirelytoreign to the Kandyan Law, there is nothing in the Kandyan Law whichprevents a Kandyan person from giving a limited interest in property toone person, and providing that at the termination of that interest theproperty should vest in another person. The Court will give effect to it. (perDe Sampayo, J., in Assistant Government Agent, Kandy V. Kalu Bandaet.al (15).Though a Deed of gift creating a fidei commissum is valid underthe Kandyan Law and one may resort to the Roman Dutch Law toascertain whether the Deed creates valid fidei commissum or not, yet toascertain who the lawful heirs are, one has to resort to the Kandyan Law(vide Menike v. Banda (16)).
In P. Thepanisa v. P. Haramanisa (17) it was argued that the KandyanDeed of Gift created a fidei commissum and that the donor's right torevoke the gift must be ascertained solely within the framework of theRoman Dutch Law. Rejecting this argument, Pulle, J. (at p. 318) said :
"The creation of a fidei commissum by a Kandyan deed of gift doesnot by itself affect its revocability. In my view no valid reason can beformulated for holding that while a gift simpliciter can be revoked onewhich is subject to restrictions becomes irrevocable.”
The cases show that a Kandyan donor can insert a provision creatinga fidei commissum, and the Court will resort to Roman Dutch Law toascertain whether the Deed created a valid fidei commissum or not, but,to determine other connected matters, it is the Kandyan Law that applies.By executing a Deed of Gift creating a fidei commissum, a Kandyansubject to Kandyan Law is not transformed into a person governed by theRoman Dutch Law. A Kandyan Donor can impose burdens on the doneewithout giving up his right to revoke. He or she can combine both.
The answer to this submission of learned Queen's Counsel is to befound in the very Sections 4 and 5. S. 4 (1) of the Ordinance states thatsubject to the exceptions hereinafter contained, a donor has the right otrevocation of any gift. The excepted gifts are contained, in s. 5 (1), subparagraphs (a) to (d). The Ordinance, therefore, indicates the exceptedgifts. To accept the learned Queen’s Counsel's submission would be toadd to the list of irrevocable gifts a further exception, viz., a Deed of Giftsubject to a fidei commissum. We are not entitled to do so.
176
Sri Lanka Law Reports
(1990j 1 SriL.R.
The learned Queen's Counsel finally submitted that fidei commissumhad been abolished by the Abolition of Fidei Commissum Law No. 20 of1972 which came into operation on 12.5.1972 ; that sections 4 and 6 ofthis Law placed the property in the hands of Jayalatha Kumarihamyabsolutely, and that she had an absolute and unfettered right to transferthe properly as a gift to the defendant-appellant. We are unable to acceptthis submission either.
As we see it, S. 4 enumerates the restrictions and constraints placedon the Fiduciary or Donee and frees the Donee from these restrictionsand constraints. It extinguishes the burdens imposed on the Donee andthe contingent rights of potential successors. On the other hand, the rightof revocation is a right that is vested in the Donor, and the Sections makeno mention of the grantor or donor. We cannot read into those sectionswords to the effect that the Donee is also freed from the right of revocationwhich is a right vested in the donor.
We dismiss the appeal with costs.
R. T. D. BANDARANAYAKE, J — I agreeMARK FERNANDO, J —I agree
A. R. B. AMERASINGHE, J.— I agreeR. N. M. DHEERARATNE, J — I agree
A. G. DE SILVA, J.
I have had the benefit of reading the judgments prepared by My Lordthe Chief Justice and my brother, G. P S. DE SILVA, J and I wishtosiatethat I am in complete agreement with the views they have expressedtherein and the orders they propose to make. As to costs I direct that theparties should bear their own costs in the District Court, Court of Appealand this Court.
G. P. S. DE SILVA, J.
The plaintiff instituted this action on 26th July, 1974, in the District Courtof Matale for a declaration of title to the land called Walauwewatte alias
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
177
Ayapattu Walauwewatte and for the ejectment of the defendant. It wasnot in dispute that Tikiri Kumarihamy Ellepola was the former owner of thisland and that she had on deed No. 8247 of 11.6.60 (P-1) gifted it to hersister Jayalatha Kumarihamy Ratnayake. On 05.10.72 by deed No. 5204(V-3) Jayalatha Kumarihamy Ratnayake transferred the land to herhusband, the defendant. Thereafter by deed No. 39373 of 31.1.73 (P-2)Tikiri Kumarihamy Ellepola revoked the deed of gift, (P-1) and on 17.2.73by deed No. 72 (P-3) she gifted the land to her son, the plaintiff. The mainissue at the trial was whether the deed of gift P-1 was revocable. TheDistrict Judge held that P-1 was revocable, that it was validly revoked byP-2, and that title passed to the plaintiff on P-3. The defendant preferredan appeal to the Court of Appeal against the judgment of the DistrictCourt.
At the hearing before the Court of Appeal, Dr. Jayewardene for thedefendant-appellant “conceded that if deed P-1 is in fact revocable, thendeed P-2 would be an effective act of revocation and that title would then
have passed on to the plaintiff". On the basis of the majority judgment
of the Privy Council in Dullewe vs. Dullewe (1) the Court of Appeal heldthat P-1 was revocable. It is right to add that Dr. Jayewardene, whileconceding that the Court of Appeal was bound by the majority judgmentof the Privy Council in Dullewa'scase (supra) "wished it to be noted thathe reserves his right to challenge the correctness of this majority decisionof the Privy Council in the appropriate forum” – [1986] 1 SLR 245 at 253.The Court of Appeal dismissed the appeal but granted leave to thedefendant-appellant to appeal to this court “on the substantial point oflaw, namely as to whether the deed No. 8247 of 11.6.60 (P-1) isrevocable" (1986) 1 SLR 245 at 257. Since this question of law involveda consideration of the correctness of the majority judgment of the PrivyCouncil in Dullewe's case (supra), My Lord, the Chief Justice, constituteda Bench of nine Judges to hear this appeal.
At the hearing before us it was not disputed (i) that this Court was notbound by the majority judgment of the Privy Council in Dullewe's case(supra), (ii) that if the interpretation placed on section 5(1 )(d) of theKandyan Law Declaration and Amendment Ordinance (hereinafter re-ferred to as the Ordinance) by the majority judgment of the Privy Counciln Dullewe’s case (supra) is correct, then P-1 is revocable.
178
Sri Lanka Law Repons
(1990) 1 SriL.R.
The first submission of Dr. Jayewardene for the defendant-appellant,however, was that the majority judgment of the Privy Council in Duilewe'scase was wrong, and that the interpretation of section 5(1 )(d) of theOrdinance by Lord Donovan in his dissenting judgment is correct. Thustwo matters arise for consideration, namely the terms of the deed oi giltP-1 and the relevant provisions of the Ordinance namely section 5(1 )(d).
The material words of P-1 strongly relied on by Dr. Jayewardena insupport of his submission that the gift is irrevocable are as follows :-
“ITikiri Kumarihamy Ellepola for and in consideration
of the natural love and affection which I have and bear unto my beloved
sisterJayalatha Kumarihamy Ratnayakedo hereby give,
grant, convey, assure and make over as a donation inter vivos absoluteand irrevocable unto the said donee” (The emphasis is mine).
It is common ground that P-1 is a Kandyan deed of gift and since it wasexecuted in I960, it is governed by the provisions of the Ordinance.Section 4 of the Ordinance permits, subject to certain provisions andexceptions, a donor to revoke in whole or in part any gilt whether madebefore or after the commencement of the Ordinance. Section 5 sets outthe categories of gifts which cannot be revoked if made after thecommencement of the Ordinance.
“ Section 4(1) . Subject to the provisions and exceptions hereinaftercontained, a donor may, during his life-time and without the consent ofthe donee or of any other person, cancel or revoke in whole or in partany gift, whether made before or after the commencement of thisOrdinance, and such gift and any instrument effecting the same shallthereupon become void and of no effect to the extent set forth in theinstrument of cancellation or revocation :
Section 5(1): Notwithstanding the provisions of section 4(i), itshall not be lawful for a donor to cancel or revoke any of the followinggifts where any such gift is made after the commencement of thisOrdinance :-
(a)
(b)
(c)
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
179
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 a decla-ration containing the words “I renounce the right to revoke” orwords of substantially the same meaning or, if the language ofthe instrument be not English, the equivalent of those words inthe language of the instrument
In construing section 5(1 )(d) of the Ordinance, the legal position ofgifts under the Kandyan Law and the decisions of our courts dealing withdeeds of gift executed prior to the enactment of the Ordinance in 1939 arenot without relevance. Hayley in his treatise on the Laws and Customs ofthe Sinhalese, referring to the case of a “simple gift” states that “theauthorities are consistent that they can be revoked, and that, whether
there is a clause purporting to renounce revocability or not"(pages
306 and 307). In Molligoda v. Keppitipola (18), the Supreme Courtaffirming the judgment of the District Judge held that a deed of gift, thoughit contained a clause – “I shall not alter, cancel or break” – renouncing theright of revocation, was revocable. However, in KiriMenika vs. Cau Rala& Others (19) the Full Court held that a deed of gift in consideration of pastand future services with a renunciation of the right of revocation ex-pressed on the face of the deed was irrevocable. The words in the deed,“to be possessed finally as paraveni property” and provided “that if thedonor should happen to leave him, not being satisfied, he should for theabove-named consideration (i.e. assistance for 3 years and payment ofa debt) finally hold the land" were construed as a renunciation of the rightof revocation. The full Bench in Bologna v. Punchi Mahatmeya, (20),stated the principle in the following terms: "It is impossible to reconcile allthe decisions as to revocability or non-revocability of Kandyan deeds; butthe Supreme Court thinks it clear, that the general rule is that such deedsare revocable, and also that before a particular deed is held to beexceptional to this rule, it should be shown that the circumstances whichconstitute non-revocability appear most clearly on the face of the deeditself ”. A promise “not to raise or utter any dispute whatsoever against thisgift and donation" was held to be insufficient To exhibit an intention torenounce the right of revocation”. (Dharmalingam v. Kumarihamy, (4)).
On the question as to whether a Kandyan deed of gift is renderedirrevocable by the donor renouncing the right of revocation, there was afurtherdevelopment through judicial decisions as is seen from Kirihenaya
180
Sri Lanka Law Reports
11990] 1 SnL.R.
vs. Jotiya (3) and Ukku Banda vs. Paulis Singho (14). In Kirihenaya v.Jotiya (supra) Ennis, J. laid down the principle in the following terms:-“The deed itself must be examined in order to ascertain the true positionof the parties, and where the deed of gift expressly renounces the rightof revocation, and the gift is not dependant on any contingency, the giftis irrevocable, The reason would seem to be that a deed of gift is acontract, and there is no rule of law which makes it illegal for one of theparties to the contract to expressly renounce a right which the law wouldotherwise give him or hej:. This case was decided in 1922.
Fouryears later in 1926, Dalton, J. and Jayewardene, A.J., deliveredthe judgment in Ukku Banda v. Paulis Singho,(5). This case has animportant bearing on the question that arises for determination in theappeal before us. The Court was there concerned with a deed of 1905where the donor gave the property to the donee "as a gift absolute andirrevocable". These are the very words which have to be considered in theappeal before us. Dalton, J. having considered the earlier decisions andthe terms of the deed of 1905 stated:- "I am unable to agree with thelearned trial Judge that the words in the deed renouncing the right ofrevocation are not an express and unmistakable renunciation of thepower; I must admit I am not able to appreciate what he wishes to conveyin his conclusion that the words ‘absolute and irrevocable' in the deed are
‘nothing more than words as are really found in deeds of gift'
Applying the law set out in the authorities to which I have referred to thefacts of this case I find the donor clearly and expressly renounced the rightof revocation and hence his subsequent revocation was invalid
Jayewardene, A.J. in a separate judgment, while agreeing withDalton, J. expressed himself thus:- “The terms of the deed of gift in thiscase are unambiguous and there is nothing in the document to show thatwhen the donor said he gave the property as a gift 'absolute andirrevocable' he did not mean what he said, or said what he did not mean
Although under our common law – The Roman Dutch Law –
deeds of gift are irrevocable, yet it has been held that it is lawful for a donor
to reserve to himself the right of revocationSo, in the same way
under the Kandyan Law according to which deeds of gift are as a rule,revocable, it should be lawful for the donor to agree that his gift should beirrevocable. I would therefore accept the law as laid down in Kirihenayav. Jotiya (supra), which upholds this principle and say that in the deed ofgift in question in this case the donor has renounced the right to revoke
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
161
it, and that the renunciation is effective”. There is a further noteworthypoint in the judgment of Jayewardene, A.J. The learned Judge makesreference to the clause renouncing the right to revoke in the deed of giftthat was under consideration in Kirihenaya v. Jotiya (supra). That clausereads as follows:- “And I hereby declare that I shall not revoke the deedof gift at any time in any manner or change it in any way after date hereof".Said the learned Judge:- “It is practically on all fours with the present case,the only difference being that the donor here has stated in one Or twowords, ‘absolute and irrevocable' what the donor there took a wholeclause to express'. (The emphasis is mine) I may,add that a similar viewwas expressed very many years later by Sansoni, J. in PunchiBanda v.Nagasena, (2) referred to later in this judgment.
The next case in which the use of the expression ‘absolute andirrevocable’ in the operative part of the deed of gift was considered isKumarasamy v. W. T.R. Banda, (21). Having set out the terms of the Deedof Gift, and having referred to the case of Bologna v. PunchiMahatmeya(supra) Basnayake, C. J. concluded his judgment by stating:- “In this deedthe donor having declared that the deed is irrevocable, in most clearlanguage, he is not entitled to go back on it".
Finally there is the decision in Tikiri Bandara v. Gunawardene, (22),which was described as “an authoritative review” of many of the earlycases by the Privy Council in the majority judgment in Dullewe’s case(supra). In the course of his judgment Tambiah, J. stated:- “There hasbeen considerable difference of opinion as to whether a deed becomesirrevocable by the donor renouncing his right to revoke. Hayley is of theview that the effect of a clause renouncing the right to revoke a simpledeed of gift is of no avail in law. (vide Hayley page 311) In expressing his
view, Hayley was influenced by the Kandyan customary law
The customary laws of the Kandyans on which Hayley was relying, havebeen developed and modified by case iaw which adapted the archaic
system to suit modern conditionsAs stated earlier, the case law
on this matter is of a conflicting nature, but from the medley of conflictingdecisions a clear principle has emerged which has been enunciated bythe Full Bench of this Court. This principle may be formulated as follows:If in a Kandyan deed of gift, it is stated that the deed is irrevocable and theclause containing irrevocability is not dependent on any condition, thensuch deed cannot be revoked. This salutary principle, which has been laiddown by the Full Bench, had been followed in a long line of decisions.
182
Sri Lanka Law Reports
(1990) 1 Sri L.R.
On a consideration of the loregoing cases it would appear, firstly,there is no case in which the Supreme Court has held that a Kandyandeed of gift which conveys the property to the donee as a gift "absoluteand irrevocable” to be revocable. Perhaps the only possible exceptionwas Molligoda v. Kepitipola (supra) decided as far back as 1858 when theSupreme Court despite the clause “I shall not alter, cancel or break"affirmed the judgment of the District Judge that the deed was revocable.The Supreme Court, however, gave no reasons for its decision. Secondly,although the concept of renunciation of the right of revocation of a deedof gift was unknown to the customary Kandyan law, yet this concept wasdeveloped over the years through judicial decisions. There was a timewhen the courts were concerned with the question whether the particularwords used in the deed were sufficient to indicate the donor's intention torenounce the right of revocation. (Molligoda v. Sinnetamby,( 14); TikiriKumarihamy v. de Silva, (23). But by 1926 the Supreme Court recognisedthat use of the words “as a gift absolute and irrevocable" was a clear anddefinite expression of the intention of the donor to renounce his right ofrevocation of the gift (Ukku Banda v. Paulis Singho (supra)). As observed
by Lord Donovan in Dullewe’s case"there were decisions
prior to the Ordinance in which a simple declaration of irrevocability was
held by the Supreme Court to be sufficient"71 NLR at 298. See
also James Singho and Others v. DingiriBanda (7) and Bogaha'ande v.Kumarihamy, (6) which followed Ukku Banda v. Paulis Singho (supra). Itis against this background that we have to consider the question whicharises for determination on this appeal, namely, whether the words “as adonation inter vivos absolute and irrevocable" in P1 satisfy the conditionfor irrevocability postulated in section 5(l)(d) of the Ordinance.
Relying very strongly on the majority judgment of the Privy Councilin Dullewe's case (supra) Mr. H.L. de Silva for the plaintiff-respondentsubmitted (i) that the Ordinance clearly contemplates an expressrenunciation of the right of revocation, a right which was integral to theexercise of proprietory rights under the Kandyan Law; (ii) that in P1 thereis nothing more than a tacit or implied renunciation; (iii) that the Ordinanceenvisages a personal and formal declaration by the owner of the right andnot a neutral statement or a conclusion of law; that the expression "as adonation inter vivos absolute and irrevocable" is a conclusion of law; anadjectival phrase descriptive of the gift and no more.
Lord Hodson in the majority judgment in Dullewe’s case emphasisedthe words “expressly renounced" in section 5(1 )(d) of the Ordinance andstated; ‘These words recognise a pre-existing right to revoke and require
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
183
an express renunciationThere is the further requirement that
the renunciation must be effected in a particular way videlicet by adeclaration containing the words “I renounce the right to revoke" or wordsof substantially the same meaning. The inverted commas draw attentionto the words to be used. The exact words need not be used if they are notused, words of substantially the same meaning are required. Thisalternative leaves no room for departure from the essential requirementof a declaration containing a transitive verb as opposed to an adjectivaldescription of the gift as irrevocable which is apt to describe what hasbeen done already’. (The emphasis is mine) This approach to theconstruction of section 5(l)(cf) of the Ordinance does not commend itselfto me. In my opinion, a very narrow and unduly restrictive interpretationhas been placed on the plain and natural meaning of the words used. Thestrict grammatical approach, the insistence on a Transitive verb" isunwarranted, having regard to the ordinary meaning of the phrase “orwords of substantially the same meaning”. It seems to me that theapproach of the majority judgment places too little significance on thecrucial words “or words of substantially the same meaning”. If theOrdinance now requires “a special clause of renunciation" as stated in themajority judgment (71 NLR 289 at 295) then these words lose much oftheir significance. The point is the Ordinance itself permits the use of otherwords provided their meaning is substantially the same. Having regard tothe phrase “or the words of substantially the same meaning” it wassubmitted that the Notary could substitute for the word "revoke” the word“cancel" in the special clause. But this would be to use a word which hasthe same meaning as "revoke" and not to use a word which hassubstantially the same meaning. As rightly stated by Lord Donovan in hisdissenting judgment, “The alternative thus indicated clearly connotessome words which are not a repetition of the formula but the meaning ofwhich is in no material sense different. Nor need they begin with words"I declare” in order to be a "Declaration" – a term which includes astatement or an assertion" (71 NLR at 297).
The burden of Mr. de Silva's submissions was that the Ordinancenow requires an express renunciation of the right to revoke and the mereuse of the words “as a donation inter vivos absolute and irrevocable" isat most a tacit or an implied renunciation of the right. It was urged that thisdoes not and cannot satisfy the requirements of the Ordinance. Theanswer to this submission has been cogently and succinctly put by LordDonovan in his dissenting judgment:- “The donor here has expressly
184
' Sri Lanka Law Repons
{19901 1 SriL.R.
indicated that the lands were to be ‘a gift irrevocable'. The word ‘irrevo-cable’ means 'not capable of revocation’; and the capacity to revokeobviously depends upon the existence of a right to do so. One maytherefore ask, *who could revoke the gift in the ordinary way' or ‘In whomwould such a right ordinarily exist?' The answer of course is the donorhimself. When therefore he uses a word which indicates that the gift is notto be capable of revocation, he is saying that he shall not enjoy the rightto revoke which he would otherwise possess. In other words he isrenouncing that right. He is not using words which ‘substantially’ mean thesame thing as the prescribed formula, but exactly the same thing. True,the Ordinance requires that whatever words are used the right shall be'expressly' renounced. The words 'as a gift irrevocable' are express. (71NLR at 298)
Furthermore, Sansoni, J. (as he then was) in Punchi Banda v.Nagasena,($) dealing with the requirement of the Ordinance that theremust be an express renunciation of the right to revoke, expressed himselflucidly and pithily in the following terms.- "He describes the gift as'irrevocable' and the question that remains for consideration is whether,by the use of that single word, he has expressly renounced the right torevoke. I can see no need for a separate clause containing such arenunciation. The Notary could have drafted the deed in that way, but hehas chosen a more abbreviated form which is just as effective. The donorhas, by describing the gilt as ‘irrevocable', declared that he has re-nounced the right to revoke, for it is only a donor who has the right torevoke. When he declares that the gift is irrevocable, he is expresslyrenouncing that right”.
It is my view that the reasoning of Lord Donovan and of Sansoni j.is well-founded and is correct. In the majority judgment of the PrivyCouncil in Dullewe's case there has been a failure to consider the truemeaning of the term 'irrevocable' in relation to the requirements of theOrdinance. I hold that the majority judgment is wrong and it should not befollowed.
It follows that P1 satisfies the condition for irrevocability postulated insection 5(1 )(d) of the Ordinance. P1 being an irrevocable Deed of Gift, notitle passes to the plaintiff on P3 and his action must fail.
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, J.)
185
Having regard to the conclusion I have reached on Dr. Jayewardene’sfirst submission, it is unnecessary to consider his further submission, viz.that P1 contains a fidei commissum and that the rule of the Roman DutchLaw that a deed containing a fidei commissum when duly acceptedrenders the deed irrevocable is applicable to the present case. Nor is itnecessary to express an opinion on Dr. Jayewardene's submissionsbased on Sections 4 and 6 of the Abolition of Fidei commissum andEntails Act, No. 20 of 1972.
I accordingly allow the appeal, set aside the judgment of the DistrictCourt and Court of Appeal and direct that decree be entered dismissingthe plaintiff's action. In the particular circumstances of this case, I directthat the parties do bear their own costs in the District Court, the Court ofAppeal and this Court.
KULATUNGA, J.
I have had the advantage of perusing in draft the judgments of my LordThe Chief Justice and my brother G. P. S. de Silva, J. with whosejudgments I entirely agree. However, I wish to add the following com-ments byway of emphasis and as further groundsfor allowing this appeal.
This Bench has been constituted as it has become necessary indetermining the appeal before us to consider whether the majorityjudgment of the Privy Council in Dullewe v. Dullewe (1) has correctlyconstrued Section 5(1) (d) of the Kandyan Law Declaration Ordinance(Cap. 59) (hereinafter referred to as the Ordinance). The relevant factsand circumstances have been set out in the judgment of my brother G.P,S. de Silva ,J.. The Deed P1 gives the land described therein to the doneeas adonation “inter vivos absolute and irrevocable”; underthe habendumclause the donee and her heirs etc. were to"have and hold the said
premisesfor ever”; the donee has thankfully accepted the gift or
donation.
At the hearing of the appeal, our attention was drawn to the report ofthe Kandyan Law Commission Sessional Paper XXIV-1935. On the rele-vance of such reports Maxwell on Interpretation of Statutes 12th Ed. p. 54states:
“The modern attitude is best summed up in these words of Lord
Denning MR in Letang v. Cooper ‘ it is legitimate to look at the report
*86Sri Lanka Law Reports[1990] 1 Sri L.R.
of such a committee, so as to see what was the mischief at which theAct was directedThis is always a great help in interpreting
it. But you cannot look at what the committee recommended, or atleast, if you do iook at it, you should not be unduly influenced by it. Itdoes not help you much, for the simple reason that Parliament may,and oflen does, decide to do something different to cure the mischief.You must interpret the words of Parliament as they stand, without toomuch regard to the recommendations of the committee".
The revocability of Deeds of Gift has been examined at pages 7-10 ofthe report in the light of opinions of text writers and some of the importantjudicial decisions. A more recent and exhaustive review of the authoritiesappears in the judgment of Tambiah ,J. in TikiriBandara v. Gunawardena(22). My brother G. P. S. de Silva, J. has also reviewed the relevantauthorities in the light of the case before us. These authorities too wouldhelp us to understand the mischief against which the Ordinance isdirected.
As Tambiah, J. states “the early customary law of Kandyans, unaf-fected by Euiopean ideas or judicial decisions, knew of no contractrenouncing the right of revocations" 70 NLR 203, 205. He cites thedecision in Salpalhamy v. Kirri Ettena (24) where it was stated as ageneral proposition that all Deeds of Gift except grants to priests arerevocable (p. 206); see also Molligoda v. Keppetipola (18) . At p. 208 hecites Hayley's view that the effect of a clause renouncing the right torevoke a simple Deed of Gilt is of no avail in law (Hayley p. 311) andproceeds to state thus:
“The customary laws of the Kandyans, or on which Hayley was relyinghave been developed and modified by case law which adapted thearchaic system to suit modern conditions".
He concludes:
"As stated earlier, the case law on this matter is of a conflicting nature,but from the medley of conflicting decisions a clear principle hasemerged which has been enunciated by the Full Bench of this Court.This principle may be formulated as follows: if in a Kandyan deed ofgift it is stated that the deed is irrevocable and the clause containingirrevocability is not dependant on any condition, then such a deed
sc
P. B. Rainayake v. M. S. B. J. Bandara (Ranasinghe, C. J.)
187
cannot be revoked. This salutory principle, which has been laid downby the Full Bench, had been followed in a long line of decisions andshould not be departed from in the interests of ensuring the validity oftitle based on Kandyan deeds of gift. It is settled principle that a longestablished rule affecting title to property should not be interfered withby this Court. In the instant case the deed comes within this rule. Thedeed clearly states that it will not be revoked at any time and for anyreason".
The deed considered in 70 NLR 202 had been executed in 1915 andwas therefore, not governed by the Ordinance.
Some of the earlier decisions restricting the right of revocation heldthat a Kandyan Deed of Gift made for past services rendered by thedonee to the donor and containing a clause renouncing the right ofrevocation is irrevocable under Kandyan Law. Tikiri Kumarihamy v. DeSilva (25) (affirmed in review by a Divisional Bench in 12 NLR 74). In thatcase the donor said :
"That henceforth I or my descending or inheriting children, grand -children, heirs, administrators, or assigns whosever shall not from thisday forth by act or word raise any dispute whatsoever against thisdonation".
The Court held that the deed was irrevocable. Wood Renton ,J. said(9 NLR 202, 208):
“I only desire to add that in my opinion to import into the decision ofcases of this description the English doctrine of consideration or ideasborrowed from English conveyancing rules as to covenants for title,instead of looking to the real nature of the transaction and to theintention of the parties, is merely to create opportunities for theevasion of obligations, which have been seriously undertaken, on thefaith of which extensive dealings with properly may have ensued, andwhich ought in the interests of public and private honesty to be strictlyenforced".
188
Sri Lanka Law Reports
11990} iSriL.R.
The law was further developed in Kirihenaya v. Jotiya (3) in which thedonor declared that she should not revoke this deed of gift at any time inany manner or change it in any manner after the date of the execution. Itwas held that a Kandyan Deed of Gift which expressly renounces the rightof revocation, and which is not dependant on any contingency, isirrevocable; a deed of gift is a contract, and there is no rule of law whichmakes it illegal for one of the parties to the contract to expressly renouncea right which the law would otherwise give him. This principle wasfollowed in Ukku Banda v. Paulis Singho (5) in which the grant was made
as “a gift absolute and irrevocableto have and to hold the said
shares of the said premises hereby conveyedabsolutely
for ever". The deed was held irrevocable. In each of the above cases thegift was made in consideration of the love and affection the donor hadtowards the donee and not in view of any past or future services.
. According to these decisions, the paramount consideration would be theintention of the parties.
Thus, at the time of the enactment of the Ordinance the law relatingto the revocation of a simple Deed of Gift in Kandyan Law was t^ataH suchgifts were revocable but the right of revocation could be renounced by anexpress and unmistakeble declaration appearing on the tace of *t: deedIn the light of this state of the law. it appears to me that the mi >r>w; w< uchthe legislature sought to remedy was that which arose due o theuncertainty in the phraseology appearing in some of the gifts wi'>ch theCourts had construed to be sufficient to constitute a renunciation o' theright to revoke. Further at p.9 of the Kandyan Law Commission Retrod,the Commissioners refer to the need to minimise the evils of litigation 3ndto give a certain amount of security and stability to titles derived by Deedsof Gift; to achieve this the Commissioners recommended a clauserenouncing the right to revoke made in explicit terms and according to aform prescribed. They thought that such a renunciation should itself besufficient to render a deed, otherwise revocable, absolute and irrevo-cable. At p. 10 the Commissioners statewe believe that
these recommendations if given legislative force will while preserving thesprit of the ancient law on the subject, remove certain hardships which areexperienced by donees".
sc
P. B. Ratnayake v. M. S. B. J. Bandara (Ranasinghe, J.)
189
Viewed in this background it seems to me that Section 5(1 )(cj) of theOrdinance is merely declaratory.as to the mode of renouncing the rightto revoke a simple gift in Kandyan Law. It does not provide for a rigid formas recommended by the Kandyan Law Commission; hence it does notamend the existing law. It only emphasises the requirement of an expressand unmistakeble renunciation of the right of revocation (for safeguarding the interests of the donee) as contemplated in the relevantdecisions. It permits the use of the words “I renounce the right to revoke”or words of substantially the same meaning. As such, it is unnecessaryto look for words which are substantially similar or to insist as essentialthe use of words containing a transitive verb as required by the majorityjudgment of the Privy Council. The failure to employ a transitive verbwould not by itself convert a renunciation which is otherwise explicit andunmistakeble to a mere intention to renounce or to an implied renuncia-tion. The majority judgment of the Privy Council has applied a narrowgrammatical construction which would encourage the evil spoken to byWood Renton, J. 9 NLR 202,208 namely the creation of opportunities forevasion of obligations which have been seriously undertaken whichought in the interests of public and private honesty to be strictly enforced.It would also fail to achieve the possible intention of Section 5(1 )(d) of theOrdinance namely, to remove certain hardships experienced by donees.
I am of the view that the majority judgment of the Privy Council inDullewev. Dullewe (supra) is wrong. I agree with the dissenting judgmentof Lord Donovan and the judgment of Sansoni, J. (as he then was) inPunchi Banda v. Nagasena (2).
I accordingly agree that the deed P.1 is irrevocable in the lightof Section 5(1) (c/) of the Ordinance and hence no title passes tothe plaintiff on P. 3 and his action must fail. In vi >w of this finding it wouldbe unnecessary to consider the further submissions raised byDr. Jayewardena Q. C. in support of the appeal.
Accordingly, I allow the appeal, set aside the judgment of the DistrictCourt and of the Court of Appeal and direct that a decree be entereddismissing the plaintiff's action. I agree to the order as to costs proposedby my brother G. P. S. de Silva ,J.
Appeal dismissed.