Thepanisa v. Haramanisa
1953Present: Pulle J. and Swan J.
P.THEPANISA et al., Appellants, and P. HARAMANISAet al., Respondents
S.C. 228—D. C. Kegalle, 4,722
Kandyan Law—Fideicommissary deed of gift—RevocahiVUy.
The creation of a fideicommissum by a Kandyan deed of gift does not byitself affect its revocability.
.^LpPEAXi from a judgment of the District Court, Kegalle.
Thiagalingam, Q.C., with B. S. C. Ratwatte, for the defendantsappellants.
Cyril E. S. Perera, Q.C., with P. Somatilakam, for the plaintiffsrespondents.
Cur. adv. vuti.
PTJLLE J.—Thepanisa v. Haramanisa
June 12, 1953. Pttlle J.—
The appellants are the 1st, 2nd and 3rd defendants. They appealfrom a decree declaring the three plaintiffs in the action entitled to twolands called Yakambe Mukalana and Yakambewatta. The 1st plaintiffand the 1st and 2nd defendants are the children of one PallewelayalageBandiya by his first marriage. The 2nd and 3rd plaintiffs are thechildren of Bandiya by a second marriage. According to the plaintiffsBandiya was a Kandyan. The questions raised in this appeal concernprimarily the legal effect of a deed of gift P4 executed by Bandiya in1911 to his children by the first marriage and before he contracted thesecond marriage. This deed was revoked by deed P5 of the-5th July,1943, on which date the lands comprised in P4 were by another instrumentP6 transferred to the plaintiffs.
It was argued that the execution of deed P5 did not operate as a validrevocation. An attempt was made to prove that Bandiya was not aKandyan. It failed for the reasons set out in the judgment of the learnedDistrict Judge with which we are in agreement and which need notbe repeated. It was next submitted that P4 was a settlement by adonor in favour of his children in contemplation of a second marriageand that, therefore, it was irrevocable. The revocability of this verydeed was considered in Romanis v. Haramanissa1 and it was held thatit did not fall within the exception that the circumstances which con-stitute non-revocability must appear most clearly on the face of thedeed itself.
It was next contended that the donees had rendered succour andassistance to Bandiya and he was thereby precluded from revokingP4. This involves a question of fact which the learned Judge has decidedagainst the appellants and there is no reason for taking a contrary view.
The last point taken was that the deed P4 created a fideicommissumwhich is a concept unknown to the Kandyan law, at least in the sensethat there are no rules peculiar or indigenous to that law relating tofideicommissum. On this premise it was argued, on the authority ofWeerasekere v. Pieris 2, that the donor’s right to revoke the gift must beascertained solely within the framework of the Roman-Dutch law andthat by the application of that law it was not competent for Bandiyato revoke the gift. The learned District Judge expressed a doubt asto whether P4 created a fideicommissum. I do not propose to set downhere the clause which according to the appellants created a fideicommissum.One translation of the clause appears in the judgment reported at 51N. L. R. 575. The translation in the present case is different. In thecourse of the argujnent a further translation was prepared which appearedto support the contention on behalf of the appellants.” Without decidingthe question whether the clause creates a fideicommissum we proposeto decide the appeal on the assumption that it does.
In my opinion there is no true analogy between Weerasekete v. Pieris 2and the present case. The parties to the deed of gift in Weerasehere v.Pieris 2 were Muslims. The donor reserved to himself the right to revoke
1 (1950) 51 N. L. R. 575.2 (1932) 34 N. L. R. fi81.
51*J. N. B 33438 (1/54) '
PTJIjTjE J.—Thepanisa v. Haramanisa
the deed, as if it had not been executed, and to deal witq, the propertyas he thought fit. Further, the donor reserved to himself the rentsand profits during his lifetime and it was only after his death that theproperty was to go to the donee and to be possessed by him subject to afideicommissum in favour of his children. As a gift inter vivos accordingto Muslim law it was at the outset open to attack by reason of the reser-vation of the right in favour of the donor to receive and enjoy the rentsand profits of the property. Viewed from the aspect of Kandyan lawthere is nothing in the deed P4 of 1911 which is in conflict with theprinciples of that law. Of the authorities cited at the argument itsuffices only to refer to the case of Assistant Government Agent, Kandyv. Kalu Banda et al.x in which de Sampayo J. said,
“ Nor is there anything in these text books or anywhere to showthat gifts in the nature of fideicommissum are contrary to the spiritof the Kandyan law. In this case, as I ventured to remark in thecourse of the argument, it is not a question of applying any particularrules of the Roman-Dutch law to the construction of this deed of gift.It is rather a question of the right of an owner of property to disposeof it according to his pleasure. I am not aware of any principle of•Kandyan law which prevents a Kandyan from giving a limited interestto one person and providing that at the termination of that interestthe property should vest in another person. Such a dispositionwould, of course, be called in the Roman-Dutch law a fideicommissv/m.It may not be a proper expression to describe a similar disposition bya Kandyan. It is, however, a convenient expression, and if the thingitself may be done among the Kandyans, the Court will not hesitateto give effect to it, simply because the disposition may also amountto a fideicommissum. ”
In my opinion one can properly infer from the observations madeby this learned Judge that the creation of a fideicommissum by a Kandyandeed of gift does not by itself affect its revocability. In my view novalid reason can be formulated for holding that while a gift simplicitercan be revoked one which is subject to restrictions becomes irrevocable.
At the hearing of the present appeal the case of Noorul Muheetha v-Sittie RafeeJca Leyaudeen and others 2 was pending before the Privy Counciland it was anticipated that the judgment of their Lordships mightassist us. It raised the question whether in the matter of an acceptanceof a gift subject to a fideicommissum, by a Muslim mother on behalfof her minor children, the Roman-Dutch law or the Muslim law wasapplicable. That case has since been decided but no principle can beextracted from it which would support the contention, on behalf of theappellants.
In my opinion the appeal fails on all points and should be dismissedwith costs.
Swan J.—I agree.
123 N L. JR. 26.* (1953) 54 N. L. B. 270.