104-NLR-NLR-V-70-R.-B.-TAMMITTA-Appellant-and-C.-B.-PALIPANE-Respondent.pdf
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TAJMBIAH, J.—Tammitta v. Palipane
Present: Tambiah, J., and Abeyesundere, J.R.B. TAMMITTA, Appellant, and C. B. PALIPANE,
Respondent
8. G. 681/64—D. C. Kandy, 7277/L
Kandyan law—Donation—Pevocability—“ Voluntary transfer ”—Kandyan Daw
Declaration and Amendment Ordinance {Cap. 59), ss. 2, 5 (1).
A Kandyan deed of gift executed after the Kandyan Law Declaration andAmendment Ordinance came into operation is irrevocable if the donor hasexpressly renounced his right to revoke and, although an undertaking wasgiven by the donee to give succour and assistance to the donor during thedonor’s life-time, the undertaking was not one of the conditions on which thegrant was made to the donee by the donor.
Appeal from a judgment of the District Court, Kandy.C. D. 8. Siriwardena, for the defendant-appellant.
W. D. Gunasekera, for the plaintiff-respondent.
Cur. adv. vult.
December 15, 1965. Tambiah, J.—
This is an action by the plaintiff-respondent against the defendant-appellant for a declaration of title and ejectment brought in respect ofthe thirteen lands described in the schedule to the plaint. The plaintiff-respondent based his title to the said lands on two deeds of gift markedPI and P2 from one G. E. W. Palipane, and the defendant-appellantclaimed the same lands on deed D2 from the same source. It is commonground that these deeds of donations are governed by the Kandyan Law.
The learned District Judge has held that the deeds Pi and P2 areirrevocable and therefore Palipane could not have executed the deed D2in favour of the defendant, and gave judgment for the plaintiff. Thedefendant-appellant has appealed from this order.
The terms of PI and P2 are almost the same and it is sufficient thereforeto give the relevant portions of the deed PI, deed No. 286 of 1 /l 1 /54 whichgifted the properties “ absolutely ” “in consideration of the love andaffection ” which the donor had towards his nephew, the plaintiff.The recital of the gift shows that the gift was also made for “ diverseother good reasons and considerations ” specifically moving the donor.The habendum clause is as follows :
“To have and to hold the said lands and premises hereby giftedunt<* the said Donee and his heirs executors administrators and assignsabsolutely for ever.”
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TAMBIAH, J, — Tamtnitta v. Ralipane
The deed, after stating that the donor “ expressly renounces his right torevoke”, contains a clause whereby the donee “ thankfully accepts thesaid Gift and undertakes to render all succour and assistance to the Donorduring his life-time ".
Mr. Siriwardena, who appeared for the defendant-appellant, contendedthat although the deeds PI and P2 were executed after the KandyanLaw Declaration and Amendment Ordinance came into operation, yetit does not come within the purviow of its operation. Ho submittedthat the deeds PI and P2 are not voluntary deeds of donation and there-fore section 5 (1) of the Kandyan Law Declaration and AmendmentOrdinance has no application. Section 2 of the Kandyan LawDeclaration and Amendment Ordinance defines the word ” gift ” asfollows :
“ Gift ” means a voluntary transfer, assignment, grant, conveyance,settlement, or other disposition inter vivos of immovable property,made otherwise than for consideration in money or money’s worth.
The appellant’s counsel contended that since there is an undertakingto give succour and assistance by the donee the deeds PI and P2 are notvoluntary gifts and therefore the law applicable to donations is theKandyan Law before it was altered by the Kandyan Law Declarationand Amendment Ordinance.
A careful perusal of the deeds Pi and P2 does not support the contentionof the appellant. Although the donee has given an undertaking to givesuccour and assistance it is not one of the conditions on which the grantwas made to the donee by the donor. Therefore I am of the view thatthe Kandyan Law Declaration and Amendment Ordinance applies tothe deeds PI and P2. It was conceded by counsel for the appellant thatif the Kandyan Law Declaration and Amendment Ordinance applies,the deeds PI and P2 are irrevocable and the plaintiff has title.
Even if the Kandyan Law Declaration and Amendment Act does notapply to deeds PI and P2 I am of the view that under the generalprinciples of Kandyan Law the deeds PI and P2 are irrevocable. InKirihenaya v. Jotiya1 it was held that a Kandyan deed of gift in whichthe donor expressly renounces the right of revocation and which is notdependent on any contingency, is irrevocable. The principle underlyingthis decision is that a deed of gift is a contract and there is no rule of lawwhich makes it illegal for any one of the parties to the contract to expresslyrenounce the right the law would otherwise give him. Subsequent tothe decision in Kirihenaya v. Jotiya, as stated in the Report of theKandyan Law Commission, the courts appear to have given recognitionto the general proposition that a Kandyan donor can, irrespective ofwhether a gift was dependent on any contingency or not, render the giftirrevocable b* an express renunciation of the right to revoke (v4de The
1 (1922) 24 N. L. R. 149.
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T. S. FERNAI^DO, A.C.J.—Perera v. Perera
Report of tho Kandyan Law Commission, Sessional Paper XXIV, 1923paragraph 56). This view has been followed in subsequent cases (videKumarasamy v. Banda 1 and H. M. UTcku Amma v. A. M. Dingiri Menikaand others 2). The words used in the deeds PI and P2 make it clear thatthe donor had renounced his rights of revocation and therefore thedefendant did not get title to the lands which are the subject matter ofthis action.
For these reasons I affirm the judgment of the learned District Judgeand dismiss the appeal with costs in both courts.
Abeyesundere, J,—I. agree..
Appeal dismissed.