083-NLR-NLR-V-27-UKKU-BANDA-v.-PAULIS-SINGHO-et-al.pdf
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Present: Dalton J. and Jayewardene A. J.UKKU BANDA v. PAULIS SINGHO et ah
1986.
282—D. C. Regatta, 6,818.Kandyan law—A gift absolute and irrevocable—Revocability.
Where a Kandyan deed of gift was expressed in the followingterms : “ I, Ukku. Banda, in consideration of the love and affectionwhich I have and bear unto Lokuhamy, do hereby give, grant,assign, transfer, set over, and assure unto the said Lokuhamy, herheirs, executors, administrators, and assigns as a gift absolute andirrevocable …. to have and to hold the said shares ofthe said premises hereby conveyed or intended so to be unto thesaid Lokuhamy, her heirs, executors, administrators, and assignsabsolutely for ever,”—
Held, that the deed was irrevocable.
P
LAINTIFF brought the present action for a declaration of titleto a land which he had in 1905 by deed P 1 gifted to his wife,
Lokuhamy. Lokuhamy died in 1922, leaving a daughter, Punclii-nona, who by deed D 2 sold the land to the first defendant. In 1923,plaintiff, by deed P 2, revoked his deed of gift. In 1924, by deedD 3, the first defendant conveyed the land to the second defendant.Both the defendants were bona fide purchasers. The learnedDistrict Judge held that the deed of gift was revocable and gavejudgment for the plaintiff. The defendants appealed.
H. F. Perera (with him C. F. Eanawakt), for defendants,appellants.—Kandyan gifts are as a rule revocable, but there isnothing illegal in a party contracting himself out of the rights whichthe law gives him, provided it does not violate any statute or it is notagainst public policy or morality. The tendency has been to restrictthe power of revocation and bring the Kandyan customary law intoline with the common law of the land (Tikiri Kumarihamy v.de Silva1).
There is no definite authority on the point; it has been laiddown in Molttgodde v. Sinnetamby2 that if renunciation of thepower to revoke is permissible under the Kandyan law therenunciation should be in express and unmistakable language.The deed itself should be examined to ascertain the true intentionof parties (see Kirihenaya v. Jotiyaz). The relevant words in thepresent case are that the gift should be “ absolute and irrevocable ”and that the donee should have the property “absolutely andfor ever.” These terms are unambiguous, and there is no need1 (1906) 9 N. L. R. 202.8 (1878) 7 S. C. G. 118.
* (1922) 24 N. L. R. 149.
12(61)29
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1926. for a special clause of renunciation. The Court should not beUkku Banda caUed upon to give to these words an intention beyond what they
v, Paulis clearly and unmistakably signify.
SingTxo
Navaratnam, for plaintiff, respondent.—The general rule of lawis that all deeds of gift, be these conditional or unconditional, arerevocable. Gifts to priests and temples alone are deemed to beexceptions to this rule. A third class of exception has beenrecognized in a series of decisions, in which it has been held thatthe presence of consideration for a gift renders it inequitableto permit a revocation. Thus it follows that the revocability' of a voluntary gift, as in the present instance, is well within therule of law. It is, however, contended that a donor has aninherent right to renounce the right of revocation. This doctrine,though foreign to Kandyan law, has been recognized only in caseswhere the renunciation was in express and unmistakable terms.The deed under consideration does not come within this category.The following authorities, among others, were relied upon : Perera'sArmour, pp. 90-95, Molligoda v. Keppetipola,l Tikiri Kumarihamyv. de Silva,2 Banda v. Hetuhamy,3 Ran Menika v. Banda Lekam.4
March 24,1926. Dalton J.—
Plaintiff sued for a declaration of title to land which he had in 1905given by deed P 1 to his wife, Lokuhamy. Lokuhamy died in 1922,leaving a daughter, Punchinona. By deed D 2 in 1922, whichwas duly registered, Punchinona sold and conveyed the land to thefirst defendant. In 1923, plaintiff, by deed P2, which was registered,revoked his gift of 1905.' In 1924, by deedD 3, the first defendantsold and conveyed the land to the second defendant. It is admittedthat both defendants are strangers and bona fide purchsers.
The question to be decided is as to whether plaintiff was entitledto revoke his deed of gift of 1905.
The material parts of deed P 1 of 1905 are as follows :—
“ Know all men by these presents that I, Korallage Ukku Bandaof Dehiowita …. now of Hulftsdorp Jail, Colombo,in consideration of the love and affection which I haveand bear unto …. Lokuhamy, also of Dehiowitaaforesaid, do hereby give, grant, assign, transfer, set over,and assure unto the said …. Lokuhamy, her heirs,executors, administrators, and assigns, as a gift absoluteand irrevocable, a just undivided one-sixth part or shate ofthe following lands, fiilds, and premises, being of the valueof rupees one hundred and fifty …. (here thelands are set out) … .to have and to hold the
said shares of the said premises hereby conveyed or
1 (.1858) 3 Lor. 24.3 (1911) 15 N. L. R. 193,
* (1909) 12 N. L. R. 74.4 (1911) 15 N. L. R. 407.
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intended so to be unto the said …. Lokuhamy,her heirs, executors, administrators, and assigns absolutelyfor ever. And I, the said Korallage Ukku Banda, dohereby, for myself, my heirs, executors, and administrators,covenant, promise, and agree to, and with the said…. Lokuhamy, her heirs, executors, adminis-
trators, and assigns, that the said shares of the saidpremises are free from any encumbrance whatsoever, andthat I and my aforewritten shall and will always warrantand dofend the same unto her and her aforewritten againstany person or persons whatsoever.
“ And I, the said …. Lokuhamy, do hereby accept theabove gift thankfully.”
The usual notarial attestation follows.
No witnesses were called, the only evidence before the learnedJudge being the documents put in; it being agreed that the partiesare Kandyans, and governed by Kandyan law.
The question to be decided is whether deed P 1 is a revocabledeed of gift. The learned Judge held it was revocable, and thedefendants appeal from that decision.
The question of the revocability of Kandyan deeds of gift has,from the number of cases cited, been often raised in these Courtsbefore, and at any rate from the later authorities the law seems tobe clearly laid down.* The difficulties arise in the application of thelaw to the circumstances of each case. The Kandyan law to begathered from these authorities appears to be as follows. All deedsof gift of lands, excepting those made to priests and temples, arerevocable during the lifetime of the donor. That general rule,however, is subject to certain qualifications. I cannot do better herethan set out an extract from Armour cited in Tikiri Kumarihamyv. de Silva1 and in Banda v. Hetuhamy2 in the following terms :—
“ But all conditional and unconditional gifts are not revocable ;some gifts are irrevocable ; for instance, if the proprietorexecuted a deed and thereby made over his lands to anotherperson, stipulating that-the donee shall pay off the donor’sdebts and also render assistance and support to the donorduring the remainder of his life, and if the said deed containalso a clause debarring the donor from revoking that gift,and from resuming the land, and from making any otherdisposal thereof. If the donee did discharge the said debts,he will have acquired thereby the rights of a purchaser tothe lands in question; and consequently that deed willbe irrevocable, but the donee, although he'acquired thetitle of purchaser, will yet continue under the obligationof rendering assistance and support to the former1 9 A7. L, jR. 211.*15 Ni L. 194.
1926.
Dalton J.
Ukku Bandav. PaulisSingle
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1926.
Dalton J.
Ckku Bandav. PaulisSingho
contains in clear and express terms that it is irrevocable. The causeor reason actuating the gift is the love and affection of the husbandfor his wife, a contract of beneficence as it is sometimes called.There is apparently no prohibition of donations between husbandand wife in Kandyan law. It has been argued in this case, as has•been done in some of the authorities cited, that no authority couldbe produced to show that such deeds, even if the power of revocationis renounced, are irrevocable. Many of the cases, it is true, referto the difficulty of extracting any definite principle governing thequestion, but it would appear that the principle on the power ofrevocation is founded to a great extent of the conditional natureof most of these deeds. (See opinion of Sir Charles Marshallreferred to in Tikiri Kumarihamy v. de Silva (supra) andMiddleton J. in Banda v. Hetuhamy (supra).) And in the lattercase Lascelles C.J. points out that the principle laid down byArmour in the extract I have cited involves an examination of thedeed in order to ascertain the true intention of the parties. Hecontinues :—
“ In the deed now under consideration it is clear that the donor’sintention was that the irrevocability of the gift shoulddepend upon the due observation of the stipulationssubject to which the donation was made.”
This view of the law was approved of and followed in Kirihmayav. Jotiya (supra), where the Court (Ennis and Schneider JJ.) definitelylaid down that the governing factor was the true intention of theparties. To ascertain that the deed of gift itself must be examinedand, where the deed expressly renounces the right of revocationand the gift is not dependent on any contingency, the gift is irrevoc-able. In a subsequent case (Dharmalingam v. Kumarihamy1) theCourt (He Sampayo and Schneider JJ.) seem to have acted uponexactly the same principle, but were unable to find in the deedthat the donor had expressly renounced the right of revocation.
As in that case, so here in the course of the argument addressedto us, we have been asked to take into account the question ofconsideration which has appeared to have influenced some of thedecisions, and on that point I would repeat and lay stress upon the
1 (1925) 27 N. L. B. 8.
proprietor …. If the proprietor did by aregularly executed deed transfer any landed property toa public functionary in lieu of a fee that was justly due,or to any person whomsoever, in recompense for favourand assistance already received, and if that deed expresslydebarred the donor and his heirs from reclaiming the saidproperty, in such case the gift or transfer shall beirrevocable.”
The deed P 2, it must be noted, is not a conditional one, but it
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opinion of Wood Renton J. in Tikiri Kumarihamy v. de Silva {swpra),cited with strong approval by Schneider J. in the last case abovementioned. We must look to " the real nature of the transactionand to the intention of the parties,” and not allow “ opportunitiesfor the evation 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 private honestyto be strictly enforced.”
Mr. Navaratnam’s lucid argument on behalf of the respondent,if I may be allowed to say so, said all that could be urged on behalfof the respondent, but he did not convince me as to the soundnessof his case.
I am unable to agree with the learned trial Judge that the wordsin the deed renouncing the right of revocation are not an expressand unmistakable renunciation of the power ; I must admit I amnot able to appreciate what he wishes to convey in his conclusionthat the words “ absolute and irrevocable ” in the deed are “ nothingmore than words as are really found in deeds of gift.” Whathappened in relation to the mortgage in 1921, and anything set outin the deed of revocation P 2 in 1923, many years after P 1 wasexecuted, are in my opinion immaterial to the point to be decided.There was a tentative suggestion that P 1 might be regarded as adonatio mortis causa, on the supposition that the donor was inprison at the time he executed the deed, on a charge of murder,- butthere is nothing to show whether he was convicted, or if he wasconvicted, for what offence he was convicted, or how long he wasin prison.
Applying the law set out in the authorities to which I havereferred to the facts of this case, I find the donor clearly and expresslyrenounced the right of revocation, and hence his subsequent re-vocation was invalid. The appeal in my opinion should be allowed,and judgment be entered for the defendants* dismissing plaintiff’saction, with costs.
The appellants are entitled to the costs of this appeal.Jayewardene A.J.—
We have had the advantage of an able and interesting argumentin this case which once more raises the oft-debated question of therevosability of deeds of gift under the Kandyan law.
The facts, and the material portions of the deed of gift, are givenin the judgment of my brother Dalton. The gift was made inconsideration of “ love and affection ” and as a gift “ absolute andirrevocable.” Under the habendum clause the donee was to haveand hold the properties donated “absolutely for ever.” Thedonor agreed with we donee, who was present at the execution ofthe deed, and accepted the gift thankfully, to warrant and defendthe title conferred “ against any person or persons whomsoever.”
1926.
Dalton J.
Ukkii Banda<;. jPaulisSingho
1926.
Jayewab-DENE A.J.
Vkku Bandav> PaulisSingko
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The question we are called upon to decide is whether such adeed of gift is revocable. The learned District Judge held itwas revocable in the absence of an express and unmistakablerenunciation of the power of revocation embodied in the deeditself. The words “ absolute and irrevocable ” were, in his opinion,insufficient, as they were usually found in deeds of gift, and he alsothought the donor never intended to deprive himself of the right ofrevocation. In support of his view, he points out that when theheirs of the donee mortgaged one of the lands gifted, the donorbecame a party to the bond and signed it as a co-mortgagor. Thisdecision has been assailed both on authority and on principle.
The general rule of Kandyan law is thus stated by Sawers :—
“ All deeds of gift, excepting those made to priests and temples,whether conditional or unconditional, are revocable bythe donor in his lifetime, but should the acceptance of thegift involve the donee in any expense, he, the donee, mustbe indemnified, on the gift being revoked, to the fullamount of what the acceptance of the gift may have costhim, either directly or by consequence, but this rule .applies only to gifts made by laymen. Moreover, thisrub is to be understood to apply only to gifts of land, orof the bulk of the donor’s fortune of goods and effects;as presents if given out of respect or from affection at themoment (or in thankful acknowledgment of a benefit orservice rendered to the donor) axe not revocable. And inrespect to the claims of indemnification by the donee, onthe gift being revoked, this is only to be understood toapply to the gifts made to strangers or other persons, notheirs by law to the donor ; for gifts to children, if revoked,give such a donee no claim to compensation.”
There were, however, exceptions to this rule, and a deed of giftbecame irrevocable if the donor stipulated that the donee shouldpay off his debts and also render assistance and support to thedonor during the remainder of his life, and the donee pays off thedebts, provided the deed contained a clause debarring the donorfrom revoking the gift and resumimg possession of the propertygifted. In such a case the donee acquires, the rights of a purchaser,but continues under the obligation to render assistance and supportto the donor (Perera’s Armour, p. 95).
The text books contain no reference to gifts granted for “ loveand affection” or “free will gifts,” and the judgments of ourCourts have to be looked into in deciding upon their nature andrevocability. In an old case (1835) reported at page 15, Austin9sReports, a deed of gift in which no consideration, past or.futureservices, or conditions were mentioned, came before the District
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Court of Kandy, and the District Judge, who was asked for inform-ation as to whether, in his opinion, the deed of gift was from itsterms “ absolutely irrevocable ” asa matter of fixed Kandyan law,reported “that the general rule of Kandyan law on the subjectof deeds of gift having effect in the lifetime of the donor is thatthey are revocable by the donor in his lifetime. To this rule,however, there is a direct exception of all gifts of land to priests ortemples. Some precedents may also be adduced from the lateJudicial Commissioner’s Court of decrees (subsequently affirmedby His Excellency the Governor) which directly set forth theprinciple that where a clause is inserted by consent of the donor,expressly debarring him from the privilege of resumption, the deed'is irrevocable. (See Makundara Mohotlalav. Mahala Sobita Oonanse,decided September 4, 1817, and affirmed in appeal December 15,1819. Also Mugahagey Bandulahamy v. Galagodda Dissawe, decidedFebruary 14, 1822, and affirmed in appeal March 19, 1825.) Itwould seem, therefore, that the deed executed by the two sistersin favour of defendant is irrevocable, inasmuch as it contains thewords he shall possess the same without disturbance y and neither of usnor any descendant of ours can hereafter resume or give away the same”This Court affirmed the judgment of the Court below, but orderedthe donee to provide for the maintenance of the donor, as theevidence showed that he had agreed to do so.
The next case dealing with a deed of gift of this character is thecase of MoUigoda v. Keppetipola {supra). There the gift was by awife to her 6mna-married husband, and the donor had “ renouncedher right of revoking the gift as well as her Kandyan law right to‘ alter, cancel, or break ’ the same.” The District Judge in thecourse of his judgment said that the deed was revocable as it did notfall within any of the exceptions expressly mentioned by Armour.The report shows that an interesting argument took place at thehearing of the appeal, and emphasis wa i laid on the use of the wordsshall not te alter, cancel, or break,” which it was pointed out werestronger than the words used in any deed of gift which had comebefore the Courts, and amounted to a renunciation of the right ofrevocation, and the principle that a party can renounce a right whichthe law creates in his favour was also relied upon. But this courtmerely affirmed the judgment without giving reasons for its decision.
In Ukku v. Dintuwa} which has been often overlooked owingto the absence of any indication in the rubric or head note of thereport that it is a case dealing with the Kandyan law of gifts, thegift was on the face of the deed made out of “ free will and affection ”and contained the following undertaking by the donor :—
“ Therefore, I, the said Dintuwa, or any of my heirs, descendants,or any person whomsoever, on my behalf, cannot hereaftermake any dispute whatever, either by word*or deed,1 (7*75) 1 S. C. C. 89.
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JA.YRWAB-DBins ‘A.J.
UJdu Bandav. PaulisSingho
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im
Jay* war*DERR A. J.
Ukhu Bandav. FaultsSirigho
i
with respect to this gift. I have hereby empowered the. said Kira Veda and Ukku, and their heirs, descendants,and administrators, to possess the said two lands, witheverything on them, from this day hereinafter for ever inparaveni and to do anything they please with the same.”
It appears to have been taken for granted that this deed of giftwas, on the face of it, revocable, but the donee succeeded in provingthat the true consideration for the gift was the marriage of thedonee with the donor’s son, and not as stated in the deed. In thecourse of the judgment, the Court (Phear C.J. and.Dias J.) saidthat by relying on the untrue statement in the deed of gift that thegift was made solely out of free will and affection “ and by takingit as a fact, the donor has been able to assume a power of revoca-tion which he did not in law possess …. ” That case is not
a direct authority in support of the view taken by the learnedJudge in this case, but it may be relied on as a valuable authorityby implication.
Then we come to the case of Molligodde v. Sinnetamby (supra), inwhich the deed of gift contained the following clause in its operativepart:—
… and I have not heretofore done of committed
any act whatsoever against this sale, and that hereafterneither myself or any other of my descendants, heirs,executors, administrators, or assigns whomsoever canraise any dispute either by word or deed, and that shouldany such dispute arise, either I myself or my heirs,executors, administrators, or assigns shall free the same,and that from this day forth the said Ganpanguwa thesaid Tikiri Banda or his heirs, executors, administrators,or assigns are hereby empowered to possess, subject to theregulations of Government, and doing whatsoever theyplease.”
The deed was in form a deed of sale, but this Court held that itwas a voluntary deed. By a subsequent deed the grantor purportedto revoke it. In a considered judgment, in which many of theprevious decisions, including the case reported in 3 Lor. 24 (supra),were discussed, the Court (Clarence and Dias JJ.) held that thedeed was revocable. On the question of the renunciation of theright to revoke nothing definite was laid down, it merely statedthat if it is possible for a Kandyan donor to renounce the right, heshould do so in express and unmistakable language. This case istherefore not an authority for the appellants’ contention.
The next case in which a similar deed of gift came before this Courtis Kirihenaya v, Jotiya (supra). During the forty-four years thatelapsed between those two cases, several cases have been decided inwhich the question of revocabilitjr has been discussed. But these are
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cases in which gifts had been made in consideration of moneypayments, or-marriage, or for past services, or conditionally on thedonee paying off the debts of the donor, or rendering services in thefuture. They have no direct bearing on the question arising here,but in the course of his judgment in Tikiri Kumarihamy v. de Silva(supra) Wendt J. observed “that the tendency has been in the'direction of restricting the power of revocation, and thereby assimil-ating the Kandyan customary law to the common law of the land.”In Kirihenaya v, Jotiya (supra) the deed of gift was granted to thedonor’s grandson in consideration of his a filial love and affection,and various other good qualities, and for the sake of his futurewelfare,” and it contained the following clause renouncing theright to revoke :—
“And I hereby declare that I shall not revoke the deed ofgift at any time in any manner or change it in any wayafter date hereof. Therefore, the said VidanehenayalageAbanshiyahenaya, or hi6 heirs, &c., from date hereof,can possess and own the said undivided shares of lands sogifted, and I shall have no claim whatever to them ; andfurther, the said donee and his heirs, &c., can do anythingthey like with the said property.”
The Court (Ennis and Schneider JJ.) held that the deed of giftwas irrevocable. Ennis J., who delivered the judgment of theCourt, after ieferring to the case reported in Austin's Reports, p. 15,(supra), and Banda v. Hetuhamy (supra), said :—
“These two judgments in my opinion show the principle thatshould be followed in deciding questions of this sort whichNaris9 on Kandyan deeds of gifts. The deed itself must be
examined in order to ascertain the true intention of th3parties, and where the deed of gift expressly renouncesthe right of revocation, and the gift is not dependent onany contingency, the gift is irrevocable. The reason wouldseem to be that a deed of gift is a contract, and there isno rule of law which makes it illegal for one of the partiesto the contract to expressly renounce a right which thelaw would otherwise give him or her.”
This is a very strong authority in favour of the appellant’scontention. It is practically, on all fours with the present case,the only difference being that the donor here has stated in oneor two words “ absolute and irrevocable,” what the donor theretook a whole clause to express. It was cited to the learned DistrictJudge, who thought it was inapplicable for the reasons I havealready referred to. When a contract is in writing—a deed of giftis a contract—the intention of the parties must be gathered froma consideration of the terms of the writing, and not from extrinsiccircumstances. The terms of the deed of gift in this case are
Jatbvas*
DENE A.J.
Ukku Bandav. PaulisSingho
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1926. unambiguous, and there is nothing in the document to show thatJaybwab- when the donor said he gave the property as a gift “ absolute anddbhb A.J. irrevocable ” he did not mean what he said, or said what he didVhhu Banda not mean. The court cannot give effect to any intention whichv. Paulis i8 not derived from the language used in the writing, especially%ng 0 when, as here, third parties have entered into the transaction on thefaith of . the terms of the document. The case of Kirihenaya v.Jotiya (supra) is, to my mind, indistinguishable from the presentcase.
In a later case, Dharmalingam v. Kumarihamy (Supra), the samequestion was again raised. There the deed of gift was in favour ofthe donor’s daughter in consideration of love and affection, and thedonee, her heirs, &c., were empowered to hold and possess “ this giftfrom this day, or deal with the same as to will and pleasure,” and thedonor, for herself, &c., agreed “not to raise or utter any disputewhatsoever against this gift and donation.” The Court (De Sampayoand Schneider JJ.) held that the deed of gift was revocable.Schneider J., who delivered the judgment of the Court, held that theclause above quoted had not the effect of debarring the donor fromrevoking the deed, distinguishing the case from Tikiri Kumarihamyv. de Silva (supra) owing to the absence of the words “ hold andpossess for ever,” which he thought were the pregnant words there.Dealing with the general question whether under the Kandyan lawa donor has the right to renounce the right of revocation, whateverbe the consideration for the gift, upon the principle – unicuiquelicet juri in favorem suum inlrodudo renunciare, the learned Judgeobserved that the question had been argued in previous cases andrequired careful consideration. As the case before him did notrequire the determination of the question he left it open. The caseof Kirihenaya v. Jotiya (supra) was not cited at the argument , andno reference to it appears in the judgment. Dharmalingam v.Kumarihamy (supra) cannot govern the decision of this case, asthe gift here was to be regarded as “ absolute and irrevocable,” andthe donee was to have and to hold the property gifted “ absolutelyfor ever.”
Such is the state of the authorities. They are conflicting. I donot, however, see any reason why at the present day the ordinarylaws of contracts should not be held applicable in the case ofKandyan deeds of gift, and why parties to such deeds should notbe allowed to enter into any lawful pacts or terms which are notsubversive of the essential requisites of such contracts. In view ofthe law as laid down in the decided cases, it cannot be said thatan agreement renouncing the right to revoke is subversive of theessential character of a gift under the Kandyan law. Althoughunder our common law—the Roman-Dutch law—deeds of gift areirrevocable, yet it has been held that it is lawful for a donor to reserveto himself the right of revocation : The Government Agent, Western
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Province, v. Palaniappa Chetiy,1 where Hutchinson J. said that hesaw nothing in such a power of revocation which is opposed “ to anyenactment, or to public policy or to morality/1 and Pofmamperumav. Gunasekera.* So, in the same way under the Kandyan law,according to which deeds of gift are, as a rule, revocable, it shouldbe lawful for the donor to agree that his gift should be irrevocable.
I would, therefore, accept the law as laid down in Kirihenaya v.Joiiya (supra), which upholds this principle, and say that in thedeed of gift in question in this case the donor has renounced theright to revoke it, and that the renunciation is effective. Bydoing so I would be advancing the trend of judicial decisions on thesubject, as noted by Wendt J., and assimilating the Kandyancustomary law to the common law of the land and to a universallyaccepted principle of the law of contract.
I agree to the order suggested by my brother, whose judgmentI have had the advantage of reading.
Appeal allowed.
♦
Javbwab-DEFB AJ.
V kku Bandav. PaulisSingho