WIJEYEWARDENE J.—Wijeysinghe and Mohotty.
1943Present: Wijeyewardene J.
WIJEYSINGHE. AppeUant, and MOHOTTY et at, Respondents.
132—C. R. Teldeniya, 240.
Kandyan lata—Deed of gift for services to be rendered—Revocabtlity—Com-pensation for improvements—Kandyan Law Declaration and Amend-ment Ordinance, No. 39 of 1938, s. 6..
Where, under the Kandyan law, a land is gifted for services to berendered and the donee has performed up to date the services agreedupon, but there are further services to be rendered,—
Held, that the deed was revocable but that the donee was entitled tocompensation for improvements effected by him in terms of section 6of Ordinance No. 39 of 1938.
PPEAL from a judgment of the Commissioner of Requests,Teldeniya.
E. B. Wickremanayake, for plaintiff, appellant.
J?. A. Marikar, for defendants, respondents.
Cur. adv. vu'it.
October 5, 1943. Wijeyewardene J.—
By deed No. 6,184 of October 4, 1923, one Kiri Banda Veda Mahatmayadonated a land to his son, the plaintiff. By deed P 1 of October 10, 1923,the plaintiff and Kiri Banda Veda Mahatmaya gifted the land to thedefendants “ with the object of getting services and work performedduly and faithfully on the occasion when any festivity or mourningshall occur in connection with either of the donors” or Loku Banda,a brother of the plaintiff. Kiri Banda Weda Mahatmaya died someyears later, and the plaintiff by deed P 2 of July 16, 1942, revoked thedeed of gift P 1. The plaintiff filed the action claiming the land againstthe defendants.
At the trial the first defendant gave evidence and stated that he enteredinto the possession of the land under the deed of gift, and rendered, asoccasion arose, such services as he had to perform under the deed. TheCommissioner of Requests accepted the evidence of the first defendantand held against the plaintiff as he thought that, in the circumstancesof this case, it would be “ most inequitable to allow revocation of thedeed after 20 years.”
The deed of gift P 1 contains no express renunciation of the power ofrevocation. Nor is it possible to gather an intention to renounce thatpower from the covenants in the deed. Here then we have a deed ofgift for services to be rendered. The donees have performed up to datethe services contracted for, but there are further services to be performedby them in future. Could the deed be revoked ?
As a general rule, Kandyan deeds of gift are revocable, and before aparticular deed is held to be an exception to that rule, it should be shownthat the circumstances consisting non-revocability appear most
HOWARD C.J.—Silva and Ismail.
clearly on the face of the deed itself—Bolonga v. Punchi Mahatmaya1Armour mentions as an exception to this rule a gift made in considerationOf payment of debts and for future assistance and support and containinga clause renouncing the right to revoke. Now, P 1 cannot come under thatclass of gift, as there is no renunciation of the right of revocation. In
C. Kandy 22,404 (Austin, p. 140) the Supreme Court held a deed to berevocable when the donor transferred a land to another in considerationof assistance to be rendered, even after such assistance had been rendered.It was held further in that case that, if the donee had spent any money,he could make a claim for it, “ the assumption being that the giftedland left him harmless during the time he rendered assistance ”. I do notthink it permissible to let considerations of natural equity override theKandyan law on the subject. Moreover, there does not appear to beanything inequitable in permitting revocation as the donee was in posses-sion of the land during the time he was rendering services and is alsoentitled to make a claim for improvements effected by him as set outin section 6 of Ordinance No. 39 of 1938.
I hold that the plaintiff’s revocation of P 1 is valid. I set aside thejudgment of the lower Court and hold the plaintiff entitled to the land.I send the case back for the Commissioner of Requests to assess thecompensation, if any, lawfully due to the defendants for the improvementsalleged to have been effected by them.
The appellant will have costs of appeal and costs of the last trialdate in the lower Court. All other costs will be in discretion of the' Court.
Appeal allowed ;case remitted.