006-SLLR-SLLR-2002-3-STEPHEN-v.-HETTIARACHCHI-AND-ANOTHER.pdf
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Stephen v. Hettiarachchi and Another
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STEPHEN
v.
HETTIARACHCHI AND ANOTHER
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 135/90DC NEGOMBO NO. 3277/LOCTOBER 04 AND 31 ANDNOVEMBER 20, 2000
Deed of Sift – Right of revocation reserved in deed of gift executed in anticipationof marriage – Is it against public policy and contra bones mores?
Held:
Although ordinarily a deed of gift is irrevocable by the donor neverthelessit is competent for the donor to reserve to himself the right of revocationin which event the donor can by executing a subsequent deed of revocationand without assigning or proving any reason in a court of law revoke theearlier deed of gft.
It is legitimate for a donor to reserve a right of revocation in a donatiopropter nuptias.
APPEAL from judgment of the District Court of Negombo.
Cases referred to :
Jayasekera v. Wanigaratne – 12 NLR 364 at 365.
Nakanthan v. Sirinamal – 31 CLW 78.
Government Agent, Western Province v. Palanlappa Chetty-11 NLR 151.
Ponnamperuma v. Gunasekera – 23 NLR 235.
Dona Podinona Ranaweera v. Rohini Senanayake – (1992) 2 Sri LR 180.
S. F. A Cooray with Muditha Premachandra for plaintiff-appellant.
Mahanama de Silva for defendant-respondent.
Cur. adv. vult.
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Sri Lanka Law Reports
[2002] 3 Sri L.R.
February 16, 2001WEERASU RIYA, J.
The plaintiff-appellant by his plaint dated 08. 05.1984, instituted actionagainst the defendant-respondents seeking a declaration of title to theland described in the 2nd schedule to the plaint, ejectment of thedefendant-respondents therefrom and damages.
The partnership in its said returns claimed a divisible loss ofRs. 9,325,001. This was based on the difference between the locallyearned income, which is liable to income tax and the total expenditureincurred in earning the gross receipts. Out of this sum of Rs. 9,325,001,a sum of Rs. 2,797,500 was allocated as the appellant’s share ofloss.
The defendant-respondents in their joint answer, whilst denyingaverments in the plaint prayed for dismissal of the action and thatdeeds bearing Nos. 1241 and 1243 dated 26. 07. 1983 and 28. 07.1983 respectively, be declared void.
At the commencement of the trial, 8 issues were accepted asarising from pleadings for adjudication at the trial, but it was agreedthat issues Nos. 3, 4 and 5 should be tried initially as preliminaryissues of law. They read as follows:
Since deed No. 925 dated 12. 01. 1073 attested by J. A.E. Amaratunga, NP is a dowry deed, is the condition reservingthe right of revocation opposed to public policy and morality?
If so is such condition null and void?
If the above two issues are answered in favour of thedefendants are the deeds P1 and P2 invalid?
The following admissions were found to be relevant in thedetermination of the said issues:
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Stephen v. Hettiarachchi and Another (Weerasuriya, J.)
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That the original owner of this land was Botarage MaryRosalin Fernando.
That by deed bearing No. 925 dated 12. 10. 1973 attestedby J. E. A. Amaratunga, NP the aforesaid Rosalin Fernandogifted the said land to the defendant-respondents.
That the said deed of gift was effected subject to a rightrevocation by the donor.
It is vital to note that deed bearing No. 925 dated 12. 01. 1973had been executed on the condition that the title would pass on afterthe marriage of defendant-respondents and that the donor reservedfor herself the life interest over the property so gifted.
Learned District Judge at the conclusion of the submissions ofCounsel by his judgment dated 24. 07. 1990, held that deeds markedP1 and P2 were invalid and dismissed the action with costs. It isfrom the aforesaid judgment that this appeal has been lodged.
At the hearing of this appeal, learned Counsel for the plaintiff-appellant submitted that right of revocation reserved in deed of giftmarked D1 is against public policy and contra bones mores.
He cited the following cases in support of his contention:
Jayasekera v. Wanigaratnet''1 at 365.
Nakanthan v. SinnameA
In Jayasekera v. Wanigaratne (supra) it was observed that in thiscountry as in most others the dowry is almost always the considerationor part of the consideration for the man taking the woman as his wife.
In the case of Nakanthan v. Sinnamal (supra) it was held that underRoman Dutch Law a deed of gift can be revoked on the ground ofingratitude even though the donor may have expressly agreed notto revoke and that such an agreement was contra bones mores.
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Sri Lanka Law Reports
[2002] 3 Sri L.R.
Learned Counsel appearing for the defendant-respondents cited thefollowing cases in support of the contention that it is legitimate fora donor to reserve right of revocation of a deed of gift:
Government Agent, Western Province v. Palaniappa Chetty.w
Ponnamperume v. Goonasekera.<A)
Dona Podinona Ranaweera v. Rohini SenanayakeS5*
The sole question arising for decision in this appeal is whetherit is legally permissible for the donor to reserve the right of revocationin a deed of gift executed in anticipation of marriage.
In Ponnamperume v. Goonasekera (supra) it was held that a donormay expressly reserve a power of revocation and exercise it himselfwithout obtaining a decree of Court. A donatio propter nuptias is nota mere gift made on the occasion of marriage, but a contract madeas an inducement to marry and that where a donor reserves to himselfthe power to cancel the deed “at any time thereafter” there is no timelimit within which the power must be exercised.
De Sampayo, J. at page 238 observed as follows:
“The question is whether donor may not expressly reserve apower of revocation and exercise it himself. I do not see anyprinciple disentitling a donor to do so. Since a gift is purelyvoluntary, and as it is in the power of the donor to give the propertyabsolutely or a limited interest therein, I think that it is not contraryto law, if he makes a transitory gift, such as a gift to be terminatedby his own act.”
At page 239 De Sampayo, J. observed further, that –
“In my opinion the gift cannot be considered as a donatio propternuptias in the true sense of the expression. Even if it were sucha donation, there is no authority for holding that an express powerof revocation reserved in the very deed of donation cannot bevalidly exercised. The “dowry” as given and accepted, passed aprecarious title, …"
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Stephen v. Hettiarachchi and Another (Weerasuriya, J.)
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In Government Agent, Western Province v. Palaniappa Chetty{supra) it was held that it is lawful for the donor in a deed of giftto reserve to himself the power to revoke the gift and a revocationmade in the exercise of such power is valid.
Although ordinarily a deed of gift is irrevocable by the donornevertheless it is competent for the donor to reserve to himself theright of revocation in which event the donor can by executing asubsequent deed of revocation and without assinging or proving anyreason in a Court of Law revoke the earlier deed of gift.
In Dona Podinona v. Roslin {supra) it was held that where a deedof gift was written with a donee’s marriage in view it cannot beregarded as a donatio propter nuptias where the life interest wasreserved in the donor.
In the circumstances, it would be manifest that the it is legitimatefor a donor to reserve a right of revocation in a donatio propter nuptias.
For the above reasons, I am of the view that the learned DistrictJudge was in error when he came to a finding that deeds P1 andP2 are invalid and dismissed the action. I
I set aside the order of the learned District Judge dated 24. 07.1990 and direct that issues Nos. 3, 4 and 5 be answered in thenegative. The case is remitted for further trial on the remaining issuesthat were settled by the parties.
This appeal is allowed with costs.
DISSANAYAKE, J. – I agree.
Appeal allowed.
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