W. R. W. M. TIKIRI BANDARA and another, Appellants. and P. GUNAWARDENA, Responde

048-NLR-NLR-V-70-W.-R.-W.-M.-TIKIRI-BANDARA-and-another-Appellants.-and-P.-GUNAWARDENA-Responde.pdf


TAMBIAH, J.—Tikiri Bandar a v. Gunawardena
203
1967Present : Tambiah, J., and Sirimane, J.
W. R. W. M. TIKIRI BANDAR A and another, Appellants,and P. GUNAWARDENA, Respondent
S. C. 602/65— D. C. Eatnapura, 5264/L
Kandyan law—Deed of gift executed prior to 1939—Clause stating that it shall notbe revoked—No other conditions imposed—Irrevocability of such deed.
If a Kandyan deed of gift is not governed by the provisions of the KandyanLaw Declaration and Amendment Act and it states expressly that it isirrevocable, and the clause relating to irrevocability is not dependent on anyother condition, then such a deed cannot be revoked.
A PPEAL from a judgment of the District Court, Ratnapura.
W. D. Gunasekera, with W. S. Weerasooria, for the defendants-appellants.
E. L. N. de Zoysa, for the plaintiff-respondent.
Cur. adv. vult.
June 9, 1967. Tambiah, J.—
The plaintiff-respondent brought this action against the two defendants-appellants for a declaration of title to one-third share of the land calledMedakumbara described in the schedule to his plaint.
It is common ground that the original owner of this land was oneDinorishamy, who by deed of gift No. 6606 of 3.2.1915, marked PI,gifted l/3rd share of this land to his niece, one Yasohamy. Yasohamyby deed No. 13743 of 1955, marked P2, transferred her interest to herhusband, the plaintiff.
The defendant’s case is that Dinorishamy, the original owner, by deedNo. 540 of 15.3.57, marked 1D2, cancelled and revoked the Deed ofgift, PI, and by deed No. 541 of 15.3.57, marked 1D3, transferred hisl/3rd share to the two defendants.
The question for decision is whether deed PI which is governed byKandyan law could be revoked. This deed is not governed by the provisionsof the Kandyan Law Declaration and Amendment Act (Cap. 59), whichsets out the categories of deeds which are irrevocable. This Act onlyapplies to deeds executed after 1939. Counsel for the appellantcontended that the deed PI could be revoked but the respondent’sCounsel urged that in view of the express undertaking in the deed of
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TAMBIAH, J.—Hikiri Bandara v. Qunawardena
gift PI by the donor that he will not at any time or for any reason revokethe deed, it could not be revoked. The relevant terms of the deed ofgift PI are as follows :
“ That as I the said Dinorishamy for and in consideration of thenatural love and affection I have and had towards Ratupunchi WadugeYasohamy of said Rilhena, a daughter of my brother, and in considera-tion of the help and assistance tendered to me by her, and with theexpectation of obtaining similar help and assistance from her in thefuture, too, and for her future welfare, am desirous of granting andconveying unto the aforesaid Yasohamy as a Gift or Donation absoluteand irrevocable, which shall not be revoked at any time in any mannerwhatsoever the premises held and possessed by me in manner hereuntomentioned and to hold and possess or do whatever please with thesame subject only to my life interest. ”
Dinorishamy died in 1958. The defendants made a feeble attemptto show that, far from rendering any help or assistance to the donor,Yasohamy, who lived far away, did not even attend his funeral. Thelearned District Judge has however not believed the defendants’ evidenceon this point and has held that the effect of the words “ which cannotbe revoked for any reason or in any manner whatsoever ”, is even strongerthan the relevant words in the deed of gift which was construed in Kuma-rasamy v. Banda 1. For these reasons the learned District Judge held thatthe deed was irrevocable and therefore the defendants had no title.
The revocability of a deed of gift governed by the Kandyan law hasa long and checkered career. Kandyan deeds of gift are usually in favourof relatives and are in general revocable. As Hayley remarks, <f Sinhaleseconveyance of land has the curious characteristic of revocability.” (VideSinhalese Laws and Customs by F. A. Hayley, p. 300.) The generalcharacteristic of revocability is however subject to important exceptions.Armour lists the following grants as not being revocable :—
“ (a) Dedications to priests and temples, or for any religious purpose.
Grants made in consideration of payment of debts and future
assistance and support, and containing a clause renouncing the
right to revoke.
Grants in consideration of past assistance, with a renouncing
clause.
Grants to a public official in lieu of a fee, with a renouncing
clause.
Settlements on the first wife and children before contracting a
second marriage.
(vide Perera’s Armour, p. 95)
1 (1059) 62 X. L. R. 6S.
TAMBIAH, J.—Tikiri Bandara v. Qunawardena
205
Despite this clear statement by an institutional writer, the revoca-bility of gifts made in consideration of payment of debts or futureassistance and support had been the subject matter of many conflictingjudgments. This conflict arose as a result of the views of other insti-tutional writers who have not supported Armour on this matter.
In this context D’Oyly states as follows : —
“ Transfers, donations and bequest of land are revocable at pleasureduring the life of the proprietor who alienates it. It is held that anylanded proprietor who has definitely sold his land may resume it atany time during his life, paying the amount which he received andthe value of any improvement, but his heir is excluded from thisliberty. ”
(vide D’Oyly, p. 151)
Sawers says : —
“ The assessors unanimously deny that a definite sale of land wasrevocable in the lifetime of the seller, at his pleasure. The chiefssay it was not without precedent for bargains of this kind to be brokenand annulled, even years after the land had been sold, but it was nota3 a matter of course nor justified by law or custom. ”
(Sawers, p. 20)
These statements which were applicable to alienations and sales wereequally applicable to donations. The resulting position was a spate ofdecisions of a conflicting nature.
The early customary law of the Kandyans, unaffected by Europeanideas or judicial decisions, knew of no contract renouncing the right ofrevocations. The Kandyan customary law is found in the decisionsof the Judicial Commissioners, the Agents and the Board of Commis-sioners. These decisions are found in several volumes containing thedecisions of the Board of Commissioners, preserved in the Ceylon Govern-ment Archives. The customary Kandyan law permitted revocation inevery case with the exception perhaps of dedication to religious establish-ments (vide also Salpalhamy v. Kirri Ettena (1814) Morg. Digest 373 ;Hayley p. 305).
In order to ensure the validity of titles based on deeds of sale byKandyans, Proclamation of 14th July 1821 declared that “all sales of landshould be final and conclusive, and neither the seller nor his heir shouldhave any right to re-purchase, unless an express stipulation to that effectwas contained in the deed.” In such a case the right must be exercisedwithin three years of the date of the deed by the grantor, and the purchasemoney should be repaid together with compensation for improvements.Transfers other than sales were not affected by this Proclamation.
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TAMBIAH, J.—Tikiri Bandara v. Gunatvardena
The earlier decisions of our courts on Kandyan deeds of gifts reflectthe view that a duly executed deed of gift vests title immediatley on thedonee (vide Mudelitamby v. Aratchie (1849) Morg. Digest 441, Hayleyp. 306). In D. C. Kandy 9862 (1838) Aust. 43, a distinction was drawnbetween a gift of the whole of the donor’s property and one part. Itwas held that the transfer of a part of it was not revocable, although noauthority was cited for this conclusion.
In Salpalhamy v. Kirri Ettena (1844) Morg. Dig. 373 it was stated as ageneral proposition that all deeds of gift except grants to priests arerevocable. A similar rule, however, with the recognition of exceptionsset out by Armour, was laid down in Molligoda v. Kepitipola (1838)Aust. 214.
In Bologna v. Punchi Mahatmeya1 the earlier cases were reviewed anda Full Bench held that it was impossible to reconcile all the decisionsas to revocability or non-revocability of Kandyan deeds, but expressedthe view that as a general rule such deeds are revocable, and before aparticular deed is held to be an exception to this rule, it should be shownthat the circumstances which constitute non-revocability appearclearly on the face of the deed itself. The general view that courts tookat this time was that all simple deeds of gift were revocable, despite aclause purporting to renounce the right to revoke (vide Hayley p. 307and the cases cited in the footnotes u and v).
Thereafter the courts began to apply the English doctrine of consi-deration to deeds of gift by way of marriage settlement. A settlementon the son of a first marriage was held to be irrevocable on the groundthat there was consideration and such a gift came within the exceptionsstated by Armour (vide Dingiria Dureya v. Saleloo B. & S. 114).In JJlcku v. Dintuwa2 the courts even went to the extent of holding thata gift to a daughter-in-law, executed after marriage and ostensibly outof free will and affection was irrevocable, because it was made in pursuanceof a previous promise to the donee that the grantor would give the propertyto her if she married the donor’s son. No authorities were cited insupport of this proposition but the judgment appears to proceed onprinciples of equity. However, in Dingiri Menika v. Dingiri Menika3Lascelles A.C.J. and Middleton J., declined to apply the rule that Englishprinciples of equity could be resorted to in order to give equitable reliefin construing Kandyan deeds of donation and held that a donation madeby a person in favour of his daughter-in-law in contemplation of marriagewith the donor’s son is revocable under the Kandyan law. In Doretugawev. Ukka Banda 4, it was held that a gift to the donor’s daughter madethree days before marriage as dowry was not revocable.
1 (1866) Ram. (1863-68) p. 195.3 (1906) 9 N. L. R. 131.
* (1878) 1 S. O. G. 89.* (1909) 1 Cur. L. R. 259.
TAMBIAH, J.—Tikiri Bandara v. Gunatvardena20 7
The revocability of deeds granted for assistance and support also hadbeen the subject matter of conflicting decisions. It was very commonamong the Kandyans who were labouring under the burden of performingrajakariya services to their feudal lords, to transfer their lands to thenearest relatives in return for assistance and support when they becomefeeble and infirm. The grantee in such cases obtained possession eitherimmediately or after the death of the grantor, provided he honoured theundertaking by feeding and clothing the donor and gave him a funeralworthy of his rank. A majority of such gifts were usually executed beforedeath, in consideration of services already rendered and also in respect offuture services to be rendered.
It has been held in a number of cases and ultimately by a collectivecourt in Case No. 28626 (1857) Aust. 207, that deeds of gift, for servicespreviously rendered as well as services to be rendered in future, wererevocable.
Despite this authoritative decision the English doctrine of considerationwas again resorted to in order to interfere with the plain rule ofrevocability. In Heneya v. Rana1 Phear C.J. and Dias J. held that agrant in consideration of past services could not be revoked. Noauthorities were however cited in support of this view. But evenaccording to English principles of consideration, a deed for pastconsideration was regarded a voluntary conveyance. However, inRam Menika v. Banda Lekam2 Pereira J. followed the earlier rule inBologna v. Punchi Mahatmeya (supra) and held that any free gift wasrevocable but stated in an obiter dictum that a gift in return for futureassistance or other future consideration was really analogous to a sale,and not a free gift and therefore was not revocable, because it would beinequitable to revoke it if services were rendered in return for the gift.
In Mudiyanse v. Banda,3 the narrow limits within which a deed of giftcould be revoked are set out. In that case a deed of gift given in consi-deration of future assistance and a previous payment of a sum equivalentto about 1/10th of the value ofproperty but containing no clause renouncingthe right of revocation was held to be revocable. Pereira J. modifiedhis earlier dicta in Ram Menika v. Banda Lekam (supra) and held thatin his opinion, only where a deed of gift is executed in consideration ofsomething which was to be done in future by a donee and that thing isactually done by him, having been induced to do so by the execution of thedeed, the deed should be, on grounds of equity, deemed to be irrevocable(vide Mudiyanse v. Banda).4
It is unnecessary to decide this case on the footing that as it has notbeen shown that services have not been rendered by Yasohamy as foundby the learned District Judge the deed becomes irrevocable since thejudgment could be supported on another ground. There has been con-siderable difference of opinion as to whether a deed becomes irrevocable
(1878) 1 S. C. C. 47.* (1912) 16 N. L. R. 63.
(1912) 15 N. L. R. 407.* (1912) 16 N. L. R. 53 at 55.
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TAMBIAH, J.—Tikiri Bandara v. Gunawardena
by the donor renouncing his right to revoke. Hayley is of the view thatthe effect of a clause renouncing the right to revoke a simple deed of giftis of no avail in law (vide Hayley p. 311). In expressing his viewHayley was influenced by the Kandyan customary law. But it has beenheld that a clause renouncing the right to revoke, coupled with the pay-ment of debts, past services rendered and services to be rendered in thefuture, is irrevocable (vide Kiri Menicka v. Caurala 1). This case wasfollowed by a Divisional Bench in Tikiri Kumarihamy v. De Silva 2.But in Banda v. Hetuhamy 3 it was held that a deed of gift containing aclause renouncing the right of revocation is revocable under the Kandyanlaw, if the donee failed to perform his obligations.
In Kirihenaya v. Jotiya 4 it was held that a Kandyan deed of gift,which expressly renounces the right of revocation and which is not depen-dent on any contingency is irrevocable, since a deed of gift is a contractand there is no rule of law which makes it illegal for one of the partiesto a contract to expressly renounce a right which the law would other-wise give. On the same principle in Ukku Banda v. Paulis Singho 5a deed of gift, which was given in consideration of love and affectionas a gift absolute and irrevocable, was held to be irrevocable. In Kumara-samy v. Banda 6 the recital in the deed was as follows :—
“ I have hereby given and grant by way of gift which cannot berevoked for any reason or in any manner whatsoever unto my grand-daughter Gallange Appullangedera Horatalie residing at Yatawaraaforesaid in consideration of the love and affection I have towardsher and with the object of obtaining succour and assistance from herduring the lifetime of me the said Kiri Muttuwa Veda.”
This case followed the decision by the Full Bench in Bologna v. PunchiMahatmeya (supra). The view taken in this case was that the donorhaving declared that the deed is irrevocable in most clear language,was not entitled to go back on it (vide dictum of Basnayake C. J.at page 70).
The customary laws of the Kandyans, on which Hayley was relying,have been developed and modified by case law which adapted the archaicsystem to suit modern conditions. They are of little significance onthis point although on obscure points on which case law could throwlittle light, they could become an important source of Kandyan law.
As stated earlier, the case law on this matter is of a conflicting nature,but from the medley of conflicting decisions a clear principle has emergedwhich has been enunciated by the Full Bench of this Court. Thisprinciple may be formulated as follows :If in a Kandyan deed of gift
it is stated that the deed is irrevocable and the clause containing
(1858) 3 Lor. 76.* {1022) 21 X. L. R. 119.
(1909) 12 X. L. 11. 74.5 (1926) 27 X. L. R. 449.
(1911) 15 N. L. R. 19 J.8 (1959) 62 X. L. R. 68.
In re Samsudeen
209
irrevocability is not dependent on any condition, then such a deed cannotbe revoked. This salutary principle, which has been laid down by the FullBench, had been followed in a long line of decisions and should not bedeparted from in the interests of ensuring the validity of title based onKandyan deeds of gift. It is settled principle that a long establishedrule affecting title to property should not be interfered with by thiscourt. In the instant case the deed of donation comes within this rule.The deed clearly states that it will not be revoked at any time and forany reason. For these reasons the judgment of the learned DistrictJudge is affirmed and the appeal is dismissed with costs.
StsiMANE, J.—I agree.
Appeal dismissed.