TIKIRI KUMARIHAMY v. DE SILVA et al

044-NLR-NLR-V-09-TIKIRI-KUMARIHAMY-v.-DE-SILVA-et-al.pdf


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1906.July 9.
Present: Mr. Justice Wendt and Mr. Justice Wood Kenton.TIKIRI KUMAKIHAMY v. DE SILVA et al.
D. C., Kegalla, 1,879.
KandyanLaw—Deedof gift for pastservices—-Revocation—Clause
renouncing the right of revocation.
A Kandyan deed of gift made for past services rendered by thedonee to the donor and containing a clause renouncing the rightof revocation is irrevocable under the Kandyan Law.
Kiri Menika v. Cau Rala (3 Lor. 76) and Heneya v. Rana (1. S. C.C. 47) followed,
D. C., Kegalla, No. 888 dissented from.(
T
HE plaintiff sought to vindicate a land called Galgodahenafrom the defendant. He alleged that the land originally
belonged to Eraupola Dissa Mahatmaya of Dodantala; that he bydeed No. 12,848, dated the 27th March, 1851, conveyed it to hiswife Golahela Loku Kumarihamy, who by her deed No. 9,617,dated the 25th May, 1867, conveyed it to her daughter, the plaintiff.The defendant claimed to hold the land, under lease No. 3,868,
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dated 25th April, 1904, executed by Punchi Banda Basnayake1906.
Nilame and Bobert George Ekneligoda, who, the defendant alleged,JvjyV-
were the rightful owners of the land.
Punchi Banda Basnayake Nilame and Bobert George Ekneligodawere added as defendants to idle action. Punchi Banda BasnayakeNilame, the first added party, claimed the land under deed of giftNo. 6,919, dated the 25th May, 1864 executed by the said GolahelaLoku Kumarihamy in favour of her daughter Eraupola MeddumaKumarihamy, the mother of the first added defendant. By deedNo. 6,821, dated the 18th November, 1865, the said GolahelaLoku Kumarihamy purported to revoke the deed of gift No. 6,919,dated the 25th May, 1864.
The deed of gift No. 6,919 was in the following terms: —
“ Whereas I, Golahela Loku Kumarihamy residing at Eraupolain Egodapota pattuwa in Galboda korale of the Four Korales,appertaining to the Western Province of the Island of Ceylon,being now of the age of 69 years, am stricken with disease; andwhereas it is uncertain that I will live in this world for a longtime:
“ And whereas Dodantala Jayatilleke Seneviratne WijayakoonWasala Mudiyanse Balahamillage Eraupola Medduma Kumarihamy,who is my daughter born of me, and who ever since four years pastup to this day without any insincerity is rendering me all and everysuccour and assistance, has been heretofore on diverse occasionswhen I was suffering from disease, and is at the present time whenI am stricken with disease, spending money for getting down manya physician and for causing them to attend on me and curing mysaid diseases:
“ And whereas my said daughter Medduma Kumarihamy hasincurred an expenditure in cash of about £100 by way of presents onthe said physicians and for medicines, and whereas all my otherkinsfolk and my children and grandchildren have, without renderingme any assistance, abandoned me uncared for:
“ And whereas by the deed of revocation No. 6,898 I have revokedthe deed of assistance No. 4,504, bearing date the 9th August, 1859,by which I had heretofore settled upon my grandson BajakarunaJayatilleke Seneviratne Wijayakoon Wasala Pandita MudiyanseBalahamillage Elapata Bandara Mahatmaya residing at Dodantalacertain lands situated at Erabugolla out of the lands appearingin this deed, who, though he had undertaken to properly render meall and every assistance, has nevertheless proved disobedientto me,’ has on diverse occasions quarrelled with me, and forciblytaking the lands belonging to me is litigating with me:
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1906.“ I, being of my proper mind and sense, do hereby, by way of
Jidy 9. donation for“ assistance rendered, cause to be written, settledupon, vested in, and delivered unto my well obedient and faithfuldaughter Medduma Kumarihamy (to whom for all the assistancerendered unto me I have nothing else to give) the under-mentionedlands, which I am indisputably seized and possessed of as my ownparaveni property up to this day upon the authority of the paravenideed in my favour No. 12,848, and bearing date the 21st day ofMarch, 1851, from my deceased husband Eraupola Dissa Mahatmaya,namely:—
* * * *
“ All these high and low lands, including the trees and plantation,being of the value of £400 lawful currency of Ceylon, have beenhereby settled by way of donation upon my daughter Medduma. Kumarihamy.
“ Further, whereas I, Loku Kumarihamy afore-mentioned, haveheretofore distributed upon deeds the lands which my other childrenand grandchildren, &c., ought to get from me;, and whereas theabove-mentioned lands I had reserved for my own livelihood, I herebydisentitle my other children, grandchildren, heirs, &c., to theselands, an<T I, in consideration of the assistance rendered unto meby my very obedient and affectionate daughter Medduma 'Kumari-hamy, do hereby by way of donation cause to be written anddelivered and covenant as follows: —
“ That henceforth I or my descending or inheriting children, grand-children, heirs, administrators, or assigns whosoever shall not fromthis day forth by act or word raise any dispute whatsoever againstthis donation; that in the event of any such dispute arising in respectof the said lands during my lifetime such dispute shall be settledby me and deliver the lands unto the donee free from dispute;that from this day forth my daughter Medduma Kumarihamy,who has received the aforesaid gampanguwa from me by way ofdonation, and her descending or inheriting children, grandchildren,and heirs, &c., shall according to pleasure without dispute as theirown property hold and possess for ever. ”
The deed of revocation (No. 6,321) was as follows: —
“ That the deed of gift and the donation dated at Kegalla onthe 5th day of May, 1864, No. 6,919, attested by D. ArachchigePedro Perera Appuhamy, Northern Province, given by me, GolahelaLoku Kumarihamy, residing at Eraupola in Egodapota pattuwain Galboda korale of the Four Korales, appertaining to the Districtof Kandy of the Western Province of the Island of Ceylon, untomy daughter Dodantala Jayatilleke Seneviratne Wijayakoon Wasala
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Mudiyanse Ralahamillage Eraupola Medduma Kumarihamy, is, lorthe reasons hereinafter mentioned, hereby revoked, namely:—
“ Because I, the aforesaid-mentioned Golahela Loku Kumarihamyhave now recovered from the illness with which I was suffering at thetime when the said deed of gift was caused to be written;
“ Because, although it is stated at that time I was in my propermind, I now think that owing to the illness with which I wassuffering I must not have been in my proper mind;
“ Because some lands which do not belong to me have beenincluded in that deed;
“ Because the boundaries and the extents of the' lands appearingin that deed are wrong;
“ Because no mention has been made in that deed of the usualrendering of assistance which I was in need of;
"Because I have now been left uncared for by the said Medduma. Kumarihamy.
" Because there is no way of obtaining my livelihood, and becauseI am of opinion that the said Medduma Kumarihamy will squanderthe lands gifted upon the above-mentioned deed in the same way asshe had already squandered the lands which had been given to herheretofore.
" In consideration and in view of these reasons I consider it al-together improper that the above-mentioned donation should havebeen given.
“ And whereas according to the law of this country I have authorityto exercise power over the said lands, I, Golahela Loku Kumarihamy,by virtue of my legal rights, hereby entirely change and revokethe aforesaid deed of gift No. 6,919 and the said donation, andalso make the said Medduma Kumarihamy disentitled to the landsappearing in that deed and shown herein: —
* * * *
' ‘ And I, the aforesaid Golahela Loku Kumarihamy, disentitling thesaid Medduma Kumarihamy, do hereby vest in and make myself theowner of, entitled to, and possessed of all .and every the aforesaidlands.
“ Wherefore the aforesaid Medduma Kumarihamy or any heirs,executors, and~^administrators on that behalf shall not be entitledupon the authority of the said deed of gift No. 6,919 to raise anydispute whatsoever or to exercise any rights of ownership or to setforth any claim over the sajd lands or anything whatsoever, andhereby entirely revoking the powers and authority which had beengranted to the said Medduma Kumarihamy, and annexing heretoa true copy of the said deed of gift, this deed of revocation has beencaused to be written and signed and sealed in two other copiesalso of the same tenour by me the said Golahela Loku Kumarihamy
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1900. on this 18th day of November, 1866, of the Christian Era, at Kandy,in the presence of the two witnesses hereof, Madugalla BasnayakeNilame of the Kandy Maha Dewala, residing at Kandy, and Atta-nayakagoda Mohottallage Appuhamy Mohottala residing at Eraupolain Galboda Egodapota pattiiwa of the Four Korales. ”
Among the issues framed in the case were—
Is the deed No. 6,919 revocable?
Was deed No. 6,919 revoked by deed No. 6,321 of the
18th November, 1865?
■ The District Judge (J. Davies, Esq.) held as follows on the aboveissues: —
“ On the question of the revocability of Kandyan deeds ofgift the law seems to be unsettled. First of all, there is a differenceof authorities between Armour and Solomons. Solomons at page50 in Perera’a Collection says:‘ Deeds to any person in return
for favour and assistance already rendered are irrevocable.' ’ '
“ Armour, at page 95 in Perera's Armour requires also thecondition that the deed should expressly debar this donor and hisheirs from reclaiming.
“ There is also a conflict of Supreme Court authority. KiriMenika v. Cau Bala (1) has been quoted to me by defendant’sadvocate. (But in this case all the reports I can find are defective.)However in Henetya v. Rana (2) it was clearly held that a deed ofgift in consideration of past services was irrevocable. This deed inthe case is such a deed. On the other hand as authority thatthisdeed was revocablethere are quoted tomeD. C., Kandy,
No.19,064 (3); D. C.,Kandy, No. 21,314(4);D. C„ Kandy,
No. 28,626 (5); D. C., Kandy, No. 29,890 (6).
“D. C. Kandy, No. 28,626, seems to me tohavemost bearing on
thepresent case. It- isstated therein thattheSupreme Court
followed previous decisions which established the doctrine thatdeeds for previous services, as well as deeds for future services,are revocable. If so, the present deed is revocable.
“ Again, in D. C., Kegalla, No. 888, (an unreported case), thereis a direct conflict with the decision in Heneya v. Rana (2). InD. C., Kegalla, No. 889, the whole question seeijas to have beengone into. It was held that Kiri Menika v. Cau Rala (1) was tooincomplete to be of use, and that Heneya v. Rana (2) was a mistakenjudgment. It also followed the statement of law as in Perera’sArmour, and not as in Solomons (in Perera's Collection). It furtherheld that the clause in the deed then in question, which was claimed
(1858) 3 Lot. 76.(4) Austin, p. 127.
(1878) 1 S. C. C. 47._ (5) Modder 134.
Austin, p. 103." (6) Austin, p. 214.
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to be a clause or revocation (and which is very similar to the clausein this case), did not amount to a clause of revocation. TheSupreme Court in this case had all the previous facts before them,and I am content to follow this judgment.
“ I accordingly hold that the Kandyan Law requires that adeed for past services should be revocable, unless a special clausedebarring the donor and his heirs from reclaiming is inserted, andthat this deed does not contain such a clause; and that thereforethis deed (No. 6,9l9) in this case is revocable and was revokedby deed No. 6,321. ”
The defendant and the added defendants appealed.
W. Pereira, K.C. (H. J. G. Pereira with him), for the defendantand added defendants, appellants.
Dornhor&t, K.C. (Bawa with him), for the plaintiff, respondent.
Cur. adv. vult.
9th July, 1906. Wendt J.—
The sole question upon this appeal is whether a certain deed ofgift, No. 6,919, dated 25th May, 1864, and executed by a Kandyanlady of rank, Golahela Loku Kumarihamy, the widow of EraupolaDisawa, was revocable. The defendant is a lessee under the addeddefendants, who claim under the donee (daughter of the donor),while plaintiff, who is the donor’s son, claims under a later con-veyance from the donor, dated 1867, on the footing that the donationwas revoked by deed No. 6,321, dated 18th November, 1865.The question of the revocability of the donation was made thesubject of a preliminary issue, which alone has Eeen tried, and uponwhich the only evidence placed before the Court was that affordedby the two conflicting deeds.
Deed No. 6,919, after reciting that the donor was 69 years ofage and stricken with disease, proceeded as follows: —-
“ And whereas Dodantala Jayatilleke Seneviratne WijayakoonWasala Mudiyanse Ralahamillage Eraupola Medduma Kumarihamy,who is my daughter bom of me, and who ever since four years pastup to this day without any insincerity is rendering me all and everysuccour and assistance, has been heretofore on diverse occasionswhen I was suffering from disease, and is at the present time whenI am stricken with disease, spending money for getting down manya physician and for causing them to attend on me and curingmy said diseases:
And whereas my said daughter Kumarihamy has incurred anexpenditure in cash of about £100 by way of presents on the saidphysicians and medicines; and whereas all my other kinsfolk and
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1906. my children and grandchildren have, without rendering me anyjuiy 9. assistance, abandoned me uncared for:
Wendt J. '* And whereas by the deed of revocation No. 6,898, I haverevoked the deed of assistance No. 4,504, bearing date the 9th dayof August, 1859, by whichThad heretofore settled upon my grand-son Bajakaruna Jayatilleke Seneviratne Wijayakoon Wasala PanditaMudiyanse Balahamillage Elapata Bandara Mahatmaya residing atDodantale, certain lands situated at Erabugolla out of the landsappearing in this deed, who, though he had undertaken to properlyrender me all and every assistance, has nevertheless proved dis-obedient. to me, has on diverse occasions quarrelled with me, andforcibly taking the lands belonging to me is litigating with me;
“ I, being of my proper mind and sense, do hereby, by way ofdonation for assistance rendered, caused to be written, settledupon, vested in, and delivered unto my well obedient and faithfuldaughter Medduma Kumarihamy (to whom for all the assistancerendered unto me I have nothing else to give) the under-mentionedlands, which I am undisputably seized and possessed of as my ownparaveni property up to this day upon the authority of the paravenideed in my favour, No. 12,848, and bearing date the 21st day ofMarch, 1851, from my deceased husband Eraupola Dissa Mahat-maya, namely:
* * * *
“Further, whereas I, Loku Kumarihamy afore-mentioned,have heretofore distributed upon deeds the lands which my otherchildren and grandchildren, &e., ought to get from me; and whereasthe above-mentioned lands I had reserved for my own livelihood.I hereby disentitle my other children, grandchildren, heirs, &c.,to these lands, and I, in consideration of the assistance renderedunto me by my very obedient and affectionate daughter MeddumaKumarihamy, do hereby by way of donation cause to be writtenand delivered and covenant as follows:—
“ That henceforth I or my descending or inheriting children,grandchildren, heirs, administrators, or assigns whosoever shallnot from this day forth by act or word raise any dispute whatsoeveragainst this donation; that in the event of any such disputes arisingin respect of the said lands during my lifetime stich dispute shallbe settled by me and ■ deliver the lands unto the donee free fromdispute; that from .this day forth my daughter Medduma Kumari-hamy, who has received the aforesaid gampanguwa from me byway of donation, and her descending or inheriting children, grand-children, and heirs, &c., shall according to pleasure without disputeas their own property hold and possess for ever. "
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“ Thrift giving this authority, this paraveni deed of gift has beencaused to be written. ”
The deed of revocation No. 6,321 declared that the deed of giftwas thereby revoked for the following reasons, viz., (1) the donorhas now recovered from her illness; (2) although the gift statedthat the donor was in her proper mind, she now thought owing toher illness she must not have been in her proper mind; (3) somelands not belonging to the donor were included in the gift; (4) theboundaries given were wrong; (5) " no mention was made of theusual rendering of assistance which I was in need of; (6) the grantorwas not left uncared for by the donee; (6) “ there is no way ofobtaining my livelihood, and because I am of opinion that the saidMedduma Kumarihamy will squander the lands gifted in the sameway as she has already squandered lands given to her heretofore.In consideration and in view of Ihese reasons, I consider it altogetherimproper that the donation should have been given; and whereasaccording to the law- of this country, I have authority to exercisepower over the said lands, I, by virtue of my legal rights, herebyentirely change and revoke the said deed of gift and the said donationand also make the said Medduma Kumarihamy disentitled to thelands appearing in that deed and shown below.
The District Judge, in holding the deed of gift to have beenrevocable, followed the Supreme Court’s decision in D. C., Kegalla,No. 888, dated 5th July, 1898, and also relied upon D. C., Kandy,No. 28,626 (Beven & Siebel 52, Perera’s Collection 74) as establishingthat deeds for past services, as well as those for future services,were, revocable. Against their decision the present appeal is brought.
So far back as the year 1850 the District Judge of Kandy remarked(Austin 140) that “ there was no part of the Kandyan Law whichwas in a more unsettled state than the power of revocation of deeds,and unfortunately it cannot be said that later judicial decisionshave tended to make the law more certain. But I think it mayfairly be said that the tendency has been in the direction of res-tricting the power of revocation and thereby assimilating theKandyan customary law to the common law of the land. Sir JohnD'Oyley (quoted by Marshall, Judgments, p. 320) says:“ Transfers,
the donations or bequest of land are revocable at pleasure duringthe life of the* proprietor who alienates it. It is held that anyland proprietor, who has even definitively sold his land, may resumeit, at any time during his life, paying the amount which he receivedand the value of any improvements, but his heir is excluded fromthis liberty. The reason of this custom is respect and attachmentwhich belong to ancient family rank and the importance ascribed to
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the preservation, as it is called, of name and village; the name bywhich every person of rank is distinguished and generally known beingthat of the village in which his ancient or principal estates aresituated. When a land proprietor is become old and infirm, andhas no near relations, or none who look after him, it is a commonpractice for him to transfer his lands to another, frequently arelation, on condition of receiving support and assistance till death.Iq this case the latter sends one or more servants to wait upon andadminister to him, and supplies provisions and medicines, accordingto his ability, the condition of the party, and the value of the land.If the owner—for so he must still be called—be dissatisfied withthe assistance afforded, he can at any time revoke the gift, as wellby virtue of the rule above-stated, as because it is conditional(here Sir Charles Marshall interposes this remark:‘ The latter
ground, viz., the conditional nature, being the true foundationof the power of revocation ’), and may make over his propertyto another person, who thereupon reimburses the first acceptorfor the expenses incurred by him. This change of possession is notinfrequent, and there have been instances of five or six successiveresumptions and new assignments by the same capricious proprietor.It fellows that the last bequest or transfer supersedes all whichmay have preceded. ” Sawers (ibid., p. 321) modified this state-ment of the law and the extent of making absolute sales non-revocable. Marshall sums the law up thus:“ In all transfers for
assistance to be rendered the condition must be shown to havebeen faithfully and strictly performed, in failure of which thetransfer ought not to be enforced; the donor has the right ofrevocation by any subsequent transfer. ” It will be observed thatSir Charles Marshall says nothing as to gifts in consideration, of pastservices, or as to the effect of the donor’s renouncing the right torevoke.
Some years after the publication of Sir Charles Marshall’s work,viz., in 1842, there appeared serially in the Legal Miscellany Armour’s“ Niti-Nighanduwa, or Grammar of the Kandyan Law ” [“ mainlya translation of the Niti-Nighanduwa”—per Lawrie J. in Kiri-menika v. Muttu Menika (1)]. In 1861 Perera published hisedition of Armour in which the original work Was methodicallyarranged un.der appropriate heads, and this edition has eversince been in use. At page 90 Sawer is quoted to the following effect:“All deeds or gifts, excepting those made to priests and temples,whether conditional or unconditional, are revocable by the donorin his lifetime, but should the acceptance of the gift involve the
(1889) 3 N. L. R. 376.
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■donee in any expense, he (the donee) must be indemnified, on thegift being revoked, to the full amount of what the acceptance ofthe gift may have cost him, either directly or by consequence,but this rule applies only to gifts made by laymen. Moreover,this rule is to be understood to apply only to gifts of land, or of thebulk of the donor’s fortune of goods and effects; as presents ifgiven out of respeot or from affection at the moment (or inthankful acknowledgment of a benefit or service rendered tothe donor) are not revocable. ” Then, on page 95, Armour laysdown:“ But all conditional and unconditional gifts are not re-
vocable; some gifts are irrevocable; for instance, if the proprietorexecuted a deed and thereby made over his. lands to another person,stipulating that the. donee shall pay off the donor’s debts and alsorender assistance and support to the donor during the remainderof his life, and if the said deed contain also a clause debarring thedonor from revoking that gift, and from resuming the land, and frommaking any other disposal thereof. If the donee did discharge thesaid debts, h.e will have acquired thereby the rights of a purchaserto the lands in question; and consequently that deed will be irre-vocable, but the donee, although he acquired the title of purchaserwill yet continue under the obligation of rendering assistance and
support to the. former proprietorIf the proprietor did
by a regularly executed deed transfer any landed property to apublic functionary in lieu of a fee that was justly due, or to anyperson whomsoever, in recompense for favour and assistance alreadyreceived, and if ifiat deed expressly debarred the donor and hisheirs from reclaiming the said property, in such case the gift ortransfer shall be irrevocable. ”
Accordingly, in 1858 in Kiri Menika v. Gau Bala (1) the Full Benchof the Supreme Court, composed of Rowe C.J. an.d Sterling andTemple JJ., held that a deed of gift of lands by a mother to her son.reciting services rendered to the donor and her debts paid by thedonee, and stipulating for future assistance, and containing alsothe clause against revocation which my brother has quoted at length,fell within the principle just cit.ed from Armour and was irrevocable,the grantee being, however, bound to continue rendering assistance.*
The present is a stronger case, because the grant is solely for aconsideration already received, while the clause against revocationis in terms closely similar. If therefore this decision is still anauthority on the law, it governs the question now before us. TheDistrict Judge says that the Supreme Court in D. C., Kegalla, 888(presently to be mentioned) considered the published reports of the(1) (1885) 3 Lot. 76. ■
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18-
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cage in Lorenz “ too incomplete to be of use, ” but that is a difficultywhich we have removed by sending for and consulting the originalrecord of that action^
In the ease D. C., Kandy, No. 28,826 (Beven <fc Siebel 62; Austin207; Perera's Collection 74), which the District Judge considersto have most bearing on the present, the gift wa6 in consideration ofboth past and future services, “ assistance rendered and to bereddered,” and the Court of first instance had held that the clauserelied upon as barring the power of revocation had not that effect,but was only the usual Kandyan form of renunciation of right. TheSupreme Court in its judgment does not mention cases in whichthe right of revocation has been expressly waived, and apparentlydecided the case on the same footing as the District Court. Certainlythe cases cited in the judgment (which are to be found reportedin Austin and Bamanathan) say nothing as to the effect of suchwaiver. This case was decided in 1867, a year before the Kuru'ne-gala case in Lorenz, already mentioned.
In 1878 the case of Heneya v. Rana (1) was decided by Phear C.J.and Dias J. The deed of gift there in question was made in con-sideration of services rendered to the donor and money borrowedby him “ and with the view of obtaining assistance for the future,”and it contained a covenant by the donor that “ neither he nor anyof his heirs, descendants, nor any person whomsoever on his behalfcould thereafter make any dispute whatsoever either by word ordeed with respect to this gift. ” It then empowered the donee andhis heirs, descendants, and administrators to possess the land forever undisturbedly in puraveni and do » whatever they pleasedwith the same. The Supreme Court, reversing the decision ofLawrie D.J., held that the conveyance was for valuable considerationand irrevocable. They acted, I take it, upon the principle I havequoted from Armour, that in such’circumstances the donee acquiresthe rights of a purchaser and the donation consequently becomesirrevocable.
On 5th July, 1898, the case D. C., Kegalla, 888 came in appealbefore Lawrie and Browne JJ. The gift was to the donor’s brother-in-law’s son, and purported to have been executed “ in considerationof the kind treatment and assistance rendered to me for aboutthe two years last past, and also by reason of a sum of Bs. 750having been spent for my needs ” by the donee. The followingclause also occurred: "I, the donor, do hereby debar my own rightor that of any of my other Heirs to raise any dispute whatsoeverto or with regard to the gift hereby made ” (I quote from thea) (1878) 1 S. C. C. 47.
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translation, dated 18th June, 1898, made lor the purpose of the 1*00.appeal by the Interpreter of this Court). Browne A.J., in whose '*ulyjudgment Lawrie J. oonourred, held that the gift, being for past Wbnot Jrservices, would have, been irrevocable if the donor had renouncedthe right of revocation, but that the clause relied upon did notamount to suoh a renunciation. In so continuing the clause,
Browne A.J. practically over-ruled the Full Court decision in theKurunegala case, where the clause which was considered to debarthe donor’s right was, if anything, less strongly worded—thatdecision was binding on the Court which dealt with case No. 888,and ought to have been followed. The case of Heneya v. Rana (1) was.cited, but was also not followed, as being founded on the mistakenbelief that the Kandyan Law gave the donee no right to com-pensation for loss suffered through the revocation of the gift. Mybrother has commented on the improbability that Sir John PKearand Mr. Justice Dias could have overlooked the provisions whichentitled such a donee to compensation; and in addition, I wouldrefer to Armour’s statement as to the donee for valuable considerationacquiring the rights of a purchaser.
In my opinion the deed now before us being given in recompensefor assistance rendered and money laid out for the donor’s benefit,contains what amounts to be a provision against revocation, andtherefore was not liable, to be revoked by the donor.
The order of the District Judge is reversed. Unless plaintiffsatisfied us that, any other issue remains to be tried, the action willbe dismissed with costs in both Courts.
Wood Benton J.—
The question to be decided in this case is whether a deed of giftcontaining the following material provisions is revocable under theKandyan Law. The donor, Golahela Loku Kumarihamy, afterreciting that her daughter Medduma Kumarihamy—the donee—had been maintaining her for four years previously and had incurredon her behalf an expenditure of £100 in cash on physicians andmedicines, proceeds to transfer to her the lands in question, ex-pressly disentitles her other children from succeeding to these lands,and adds that “ henceforth I or my descending or inheriting children,grandchildren, heirs, administrators, or assigns whosoever shall not.from this day forth by act. or word raise any dispute whatsoever.against this donation. ’’ If any dispute is raised the donor under-takes to settle it, and the donee and her heirs, &e., are to hold andpossess the lands transferred “ according to pleasure-, without
ti) (1878) 1 S. C. C. 47.
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dispute, for ever. ” It will be observed that this deed, which wasexecuted on 25th May, 1864, discloses a consideration whichis both pecuniary and past. It says nothing about services to berendered in the future. By a deed of 18th November, 1865, thedonor purported to revoke the earlier deed, alleging inter alia, as aground of' revocation, that the donee, Medduma Kumarihamy, hadleft her uncared for. Under the circumstances above stated,was the earlier deed capable of being revoked under Kandyan Law?The learned District Judge has held that it was. I venture to thinkthat it was not. Among the authorities cited to us in the argumenton appeal, some may be put aside at once as irrelevant, eitherbecause no real consideration was disclosed (see D. C., Kandy,28,626, Perera's. Collection, p. 74; D. C., Kegalla, No. 29,890,ibid. p. 56) or because the element of future services entered into thecase (D. C., Kandy, No. 21,344, Perera 59) or because the clauseby which the donor was alleged to have barred his right of revocationwas only a renunciation of title (D. C., Kandy, No. 19,064). Theactual decision in Unambuwe v. Junghamy (1) turned on pres-cription. There are. however, three authorities directly in point—■Kiri Menika v. Can Bala (2), Heneya v. Bana (3); and D. C., Kegalla,No. 888 (4). According to the first and second of these cases thedeed now under consideration would be irrevocable. Accordingto the third it would be revocable. For reasons which I proceedto give it appears to me that the authority last cited should not befollowed.
In Kiri Menika v. Cau Bala (2) which it appears both from thereport, in Lorenz and from the text o! the record itself was a decisionof three Judges, the deed in question recited past services and paymentby the donee of the donor’s debts (the sum paid being mentioned),stipulated for future assistance, and then transferred the lands tothe donee “ to hold, finally in paraveni, so that in future I myself(the donor) or any one else who may descend from me or any personor persons who may receive administrations (sic) over my estates fromthis day shall do or say no dispute. ” Then follows the usualclause enabling the donee to dispose of the property “ accordingto pleasure. ” The Supreme Court held that the deed was irrevoca-ble, the grantee being bound, however, to render the future assistancefor which it stipulated.
In Heneya v. Bana (3) Sir John Phear C.J. and Dias J. had toconsider the question of the revocability of a deed of gift in con-sideration of past assistance, a previous loan of Rs. 100, and future
(1892) 2 C. L. R. 103.(3) (1878) 1 S. C. C. 47.
(1858) 3 Lot. 76.(4) S. C. Min. July 5,' 1898.
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services. It appears from the record, although not- from' "the reportin 1 8. C. G. 47, (i.) that the deed contained the following clause: —
I or any of my heirs, descendants on my behalf, cannot hereaftermake any dispute whatever with respect to the gift; ’’ and (ii.)that the District Judge had before him evidence that the conditionas to future assistance had Been complied with. The SupremeCourt held that the challenged deed disclosed a valuable consider-ation of a substantial character, and in this connection I may saythat .1 do not understand the Supreme Court in the recent case ofDingiri Menika v. Dingiri Menika (1) in commenting on Heneya v.Bana (2) to have intended to say anything further than that thecharacter of the consideration differentiated it widely from oneof a mere deed of gift.
Taken by themselves, the cases of Kiri Menika v. Cau Bala andHeneya v. Bana constitute clear and binding authority in favour ofthe irrevocability of the deed now in question. Here, as there, apecuniary consideration is disclosed; and in all three cases the termsof the debarring clause are substantially identical. In D. C.,Kegalla, No. 888 (3), however, a different conclusion was arrived at,,on practically the same facts, by Browne J. in a judgment in whichLawrie J. concurred. The deed recited, by way of consideration,past assistance and the expenditure by the donee of a sum of Bs. 750for the donor’s needs. It then provided that the donee and hisheirs, &e., from generation to generation should possess for everthe lands transferred “ and do with them whatsoever to him or themshall please, ” and concluded as follows:—“ And I do hereby debarmy own rights or that of any of my other heirs to raise any disputewhatsoever to or with regard t<j the gift here made. " Mr. JusticeBrowne held that the deed was revocable. . He declined to followKiri Menika v. Cau Bala because the reports of the decision in3 Lorenz 76 and in Perera's Collection at p. 86 were so confusing as-to be unintelligible, and added that he was not certain “ what wasthe ultimate result, ” but believed it to be " that the donee’s titlewas ultimately upheld when the donor had by a clause of the deeddeprived herself of the right of revocation. ” It is true that thereare printers’ or editor’s errata in both the reports of this case. Butwhen the record is referred to I do not think that there is anydifficulty in understanding either the facts or the decision. As Ihave shown from the record itself, the deed contained no expressclause against revocation: the clause which it embodied was. oneidentical in character with that before Browne J. .in D. C.. Kegalla,.
(11 (1906) 9 N. L. R. 131.(2) (1878) 1 S. C. C. 47.
S. G. Min. Julv 5, 1898..
1906.
July 9.
WoodRenton J.
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1906.
July 6.
WoodIVbnton J.
No. 888, and 1 think that the authority which he sets aside wasas binding on him and Lawrie J. as it is on us. The judgment inHeneya v. Rana (ubi sup) is dismissed by Mr. Justice Browne on theground that the Court had overlooked the fact that, under theKandyan Law, the donee of a revoked deed may be allowed com-pensation for any pecuniary loss that he had sustained. Even ifwe assume that Sir John Phear was ignorant of this principle ofKandyan Law, it is difficult to suppose that Mr. Justice Dias was so,in view of the importance assigned to it in Per era's Collection, andthe frequency with which his name appears as counsel in Kandyanoases. Moreover, it is obvious that compensation would oftenform a very poor redress for the grievance of revocation. None ofthe other cases cited by Browne J. in support of his judgmentseem to me to be relevant. In D. C., Kandy, No. 28,626 {Perera’sCollection 74) no real consideration was disclosed. In D. C., Kandy,No. 19,064, the clause in question was only a renunciation of title.In D. C., Kandy, No. 25,127 (Per.era 57) the ground of revocationappears to have been the failure of the donee to fulfil a condition asto rendering future assistance. Breach of a similar condition wasthe cause of revocation in D. C., Kandy, No. 23,886 (Perera 60).h'or the reasons given above, I am of opinion that the decision ofthe Supreme Court in D. C., Kegalla, No. 888, is not binding on usand should not be followed. The present case is therefore governedby the authority of Kiri Menika v. Gau Bala (1) and Heneya v.Rana (2). As I think that the clause in question here is a valid clauseagainst revocation it is unnecessary to consider the point raised bythe learned District Judge and in issue between Armour {Perera’sArmour 95) and Solomon (Perera's Collection 50) as to whetherwithout such a clause deeds for past consideration can be irrevocable.The decree appealed against should be set aside and judgment enteredfor the appellant in the terms stated by my brother Wendt. I onlydesire to add that in my opinion to import into the decision of casesof this description the English doctrine of consideration or ideasborrowed from English conveyancing rules as to covenants fortitle, instead of looking to the real nature of the transaction and tothe intention of the parties, is merely to create opportunities forthe evasion of obligations, which have been seriously undertaken,on the faith of which extensive dealings with property may haveensued, and which. ought in the interests of public and privatehonesty to be strictly enforced.
♦
(1) (1858) 3 Lor. 76.
(2) (1878) 1 S. C. C. 47.