GUNERATHAMY v. MANUEL APPUHAMY

066-NLR-NLR-V-28-GUNERATHAMY-v.-MANUEL-APPUHAMY.pdf


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Present : Garvin and Lyall Grant JJ.GUNERATHAMY v. MANUEL APPUHAMY.
1927.
133—D. C. Kurunegala, 11,039.
Kandyan law—Deed of gift of aU landed property—Disinherison of
heir—Clause of disinherison—Gift absolute and irrevocable.
A deed of gift by a Kandyan parent of all bis landed propertyis inoperative against his heirs unless it contains a clause ofdisinherison.
No particular formula is necessary for disinheriting an heir so longas there appears in the deed language which discloses an intentionto disinherit.
Per Garvin J., Semble.—The requirement of a clause of disin-herison must be limited to cases in which the donor has notexpressly renounced his right of revocation nor manifested anintention that his grant was to have the effect of an absolute andirrevocable disposition.
A
PPEAL from a judgment of the District J-udge of Kurunegala. .
Plaintiff, the minor son of one Malhamy. claimed to be
declared entitled to the subject-matter of the action as the soleheir of his father. The defendant resisted the claim on a deed of
1 9 N. L. R. 142.
( 380 )
1987. gift made in his favour by Malhamy. This deed was attacked onOuneraihamy *wo grounds: (1) that it was not the act and deed of the donor,v. Manuel (2) that as the donor had by the deed parted with all his landedAppuhamy pr0per^y his son was entitled to the premises by inheritance, inthe absence of an express clause of disinherison. The learnedDistrict Judge dismissed the plaintiff's action.
H. V. Perera, for plaintiff, appellant.
Drieberg JK.C. (with Wccrasooriya)*, for defendant, respondent.February 28, 1927. Garvin J.—
This is a contest as to title. The plaintiff is the minor son ofMalhamy, and is represented by his duly appointed next friend.He claims to be entitled to the subject-matter of the action asthe sole heir of his father. His claim is resisted by the defendant,who bases title on a deed of gift No. 4,010 dated July 8, 1921made in his favour by Malhamy. This deed of gift is attackedon two grounds: First, that it is not the act and deed of thedonor; and second, that inasmuch as by this deed the donorhas parted with all his landed property, it is in the absence of anexpress clause of disinherison of no avail against the claim of hisonly surviving legitimate son to take the premises by right ofinheritance.
The evidence shows that for some time before his death, whichtook place on July 9, 1921, the donor had been estranged fromhis wife and had been living apart from her and his son and withstrangers. Towards the end of his life he had been staying withthe defendant, and during that period developed the illness whichproved to be his last. He was brought to Colombo to Dr. Rutnam'shospital, where he died. The deed of gift was executed the daybefore he died. The evidence of the notary and the other witnessesif believed establishes that he was in full possession of his senses,and that his mental faculties were u.umpared when he executedthe deed of gift. There is the further circumstance that aboutthree months previously he had executed a deed of giift ofthese lands in favour of some other persons, who also werestrangers. That gift he revoked before he executed the deed underconsideration.
The District Judge has accept-1 tYs evidence, and has foundthat the plaintiff has failed to establish circumstances which wouldin law avoid the gift. The transaction labours under the -suspicion which attaches to deeds executed shortly before thedonor’s death, but upon a considerat on of all the evidence 1 amunable to say that the District Judge was wrong.
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The principal ground on which the appeal was pressed was that ^7.the deed was bad for the reason that it contained no words whichj.
could fairly be held to disclose u clear intention on the part of the—~
donor to disinherit his son.Manuel
The general effect of the evidence on this point is that by this • ippuMmydeed the donor divested himself of all his landed property, andthere is nothing to show that at his death he left* any estate.
All the parties concerned are Kandyans.
The question for consideration is whether under the Kandyanlaw such a deed is invalid in the absence of words disclosing aclear intention on the part of the donor to disinherit his legal heir.
The deed is in form, at least, an irrevocable deed of gift.
The Kandyan law gave to a proprietor full power to dispose ofhis properly, even to strangers, to the exclusion of his childrenor other heirs. There also existed certain customary forms andceremonies by which a person may disinherit an heir.1
Whether the Kandyan law ever insisted as an essentialrequirement of a disposition by gift in other respects clearlyand unambiguously established that it should contain a clausedisinheriting the donor's legal heir may be open to doubt, butI think there can be no question that the decisions of this Courthave established that such a clause is necessary, at least where sucha gift is revocable.
As early as the year 1842 this Court took the view that anonly son could not be disinherited by a deed of gift “ unless thecause of disinherison be expressly mentioned in it/’ (See Siri-warden# t>. Ranghamy2) There followed in 1856 the case of Inde-jotj Unnanse v. Keerala,3 which is an authority for the propositionthat a revocable deed of gift must contain .a clause of disinherisonbefore it can defeat the right of the heirs of the donor to take theproperty by right of inheritance. Two years later another decisionof the Collective Court is reported in Austin at page 203, whichfollowed the case of Indejoii Unnanse v. Keerala (-supra), the Judgesobserving:—
“ It has not, in the Court's opinion, been shown that at the timeof his death the admitted proprietor possessed any otherlands in dispute. Such being the case, and plaintiff beingadmitted to be his heir at law, it would become necessary,according to Kandyan law, that in deeds such as the onenow in question the usual clause of disinherison shouldbe inserted."
This judgment indicates that the view held was that a clauseof disinherison was necessary only where the' proprietor by thedisposition under consideration parted with all the property towhich he was entitled.
1 Pereira's Armour 98 and Xiti8 (1842) Morgan's Digest 345.
Niga/ndnwa 84*8 Austin 192.
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1927. The law as laid down in ludejoti Unnanse v. Keerala (supra) wasGabvm J. afltoned and approved in 1861 in the ease of Bandara Menika v.
Palingo Menika.1
Ounemihamyv, Manuel
AppuJuxmy It was reaffirmed in D. C. Kandy" u 1,6S3 2 in a judgment wherethe position of the law on the subject is set out thus: ~-
“ The law in respect of deeds of gift made by persons in theKandyan Provinces appears now to stand thus. Deeds ofgift made by a parent affecting his whole property andentirely disinheriting one or more of his children are notvalid unless they contain u clause of disinherison statingsufficient ground for the act. But deeds of gift whichdo not include the whole of the donor's property need notcontain such clause of disinherison. And all bequestsare good, even though they in fact disinherit the childrenof the testator and deal with his whole property withoutcontaining any express – clause of disinherison. Thelaw was formerly the same with regard to deeds andwills; but the Ordinance No, 21 of 1844 introducedthe difference just adverted to. The law as it now standsis in a somewhat anomalous state, permitting an ownerof property to deal with it. after his death as he pleases*but introducing certain restrictions which prevent himfrom disposing of his own life interest with equal facility.It is now too late to consider whether the law whichremoves all restrictions in dealing with .property by willmight not have been considered by the Courts as removingthe restrictions in cases of deeds of gift also; because byallowing heirs to be deprived of all share in their ancestor’sproperty by one form of assurance the law in effectrepudiated the- principle of interference, and this did awayi with the reason on which such restrictions were founded.But we are certainly not inclined to extend the lawwhich avoids a deed for want of a clause of disinherisonbeyond the point to which previous decisions oblige nsto go/’
This reluctance to go beyond the point at which the law was leftby the current of judicial decision was again manifested in the caseof Pattiya Afatoagedera v. Pattiya Arawagedefa* and the judgmentsin Sundata v. Peris A and Appu Hamy v. Kiri Menika 5 show thatit Was the settled policy of the Courts not to extent the rule aslaid dawn in :the earlier cases and to restrict its application to casesin which it had been applied.
. {1860-1862) 10S.3 Seven & Siebel {1875) 46.
! »tder»t-rnJen {1871) 165.4 8 Gey. aj. Rec. 80 (note)*
* 3 G. L. R. 81.
i
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Despite this consciousness of the anomalous state in which thelaw was left, the Courts felt themselves bound to admit that a deedof gift by a parent of all his landed property was inoperativeagainst his heirs unless it contained a clause of disinherison.
It is, however, important to note that no particular formulawas required or insisted upon so long as there appeared in thedeed language which disclosed an intention to disinherit the heir.A statement of the cause of disinherison had long ceased to beregarded as essential to the validity of such deeds.
In D. C. Batnapura 10,690 1 the deed under considerationcontained no express clause of disinherison, but it did contain thefollowing words: “ neither I nor any heirs, executors, &c., or anyother person whomsoever shall in future dispute the validity ofthis gift.” The judgment of the Court on the point was as follows:
From the clause (quoted above) in the deed in question it isevident that the deed was intended to disinherit theheirs of the donor.
Similarly, in the case of Komalie v. Kiri2 Middleton J. heldthat a clause in a deed of gift which said that none of the donor’sheirs, executors, administrators, or assigns should make anydispute with regard to the gift had the effect of a special clause ofdisinherison.
It is evident that the reason underlying this requirement of aclause of disinherison in the case of a gift of all his property by aparent is that the law refused to give such a disposition the effectof a final and absolute conveyance by the donor unless such ahintention was clearly manifested. Gifts under the Kandyan lawbeing revocable and in practice freely made and freely revoked,it was apparently thought to be necessary that a Court should besatisfied in the case of a deed of gift by a parent of all his property■ that it was the donor’s intention that the grant should operate as nfinal deposition of his property, and not merely as a gift revocable atwill before such a deed was given the full effect of an absolute andirrevocable conveyance.
Such an intention had to be manifested by the presence in thedeed of a clause of disinherison, and this requirement as a resultof the gradual development of the law is now satisfied if thedeed contains language which sufficiently manifests an intentionto disinherit the heir.
It is necessary, however, to take note of the progressive develop-ment of the law on a kindred point. From time to time thecontention has been advanced that it was competent for a donorunder the Kandyan law to renounce the right to revoke a gift
1927.
Garvin- J.
(Mmerathamyv. ManuelAppnhamy
1 Ram. (1871) 195.
* (1911) 15 N. L. R. 371
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1987* made by him, and in the case of Uklm Banda v. P&ulitf Sinyhu 1Garvin j. Dalton and J.ayewardene JJ. admitted the contention, and held"3? that where a donor has renounced the right to revoke a deed ofv, Manuel gift it becomes irrevocable. The earlier cases on the point will beAppuhttmy found reviewed in their judgments.
This ruling was approved and followed by Schneider A.C.J.and Maartensz A.J. in the case of Bogahalande v. Tihiri Hamyet al,a
If it is settled law—and I think it is—that where a donor makesa deed of gift and by that very deed renounces his right of revoca-tion the gift becomes absolute and irrevocable, is there any needfor a clause of disinherison where such a deed embraces all thelanded property of the donor?
The grant under consideration is expressed to be made byway of gift absolute and irrevocable." If the grant related to aport only of the landed property of the donor, it must be takenhave the effect of an absolute and irrevocable grant. Is thelaw different where the grant extends to all the donor’s landedproperty? The principles upon -which the judgments referredto proceed apply generally, and are in no way affected by suchconsiderations. As I understand these principles, they are, thatthe right to revoke may be renounced and that the paramountconsideration is the intention of th^ parties. If a clear intentionthat the grant is to operate as an absolute and irrevocable giftis manifested, that intention must be given effect to.
The identical words appear in the deed under consideration.They indicate that the donor has renounced his right of revocation,and disclose a clear intention that that gift is to be absolute andirrevocable. On the authority of the cases referred to, it is the lawthat such a deed operates as a final, absolute, and irrevocabledisposition.
It is a logical and necessary consequence of the law as sealedby these cases that the requirement of a clause of disinherisonmust be limited to cases in which the door has not expresslyrenounced his right of revocation nor jnanifested an intentionthat his grant was to have the effect of an absolute and irrevocabledisposition.
Indeed, upon what principle can an heir be admitted t-o impeacha grant which is final, absolute, and irrevocable, and is given thateffect because it was manifestly the intention o.f the donor thatit should have that effect?
In addition to the words which are a renunciation by the donorOf his right to revoke the gift, the habendum clause repeats thatthe donee is to hold the premises “ absolutely and for ever " subjectto the reservation of a life interest in the donor; and finally, the3 27 AT. L. It. 449.2 S. C. Mins, of Sovember 30, 1926.
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donor for himself and his heirs, executors, and administratorscovenants ” that the premises are free from encumbrance andthat he will warrant and defend the title thereto.
If the question were to be decided apart from the effect of therecent decision to which reference has been made, the deed, inmy opinion, contains language which sufficiently manifests theintention of the donor that it was to operate as a final and absolutedisposition to the exclusion of his heirs.
For these reasons I would affirm the judgment under appeal.
The respondent is entitled to the costs of this appeal.
Iaall Grant J.—
I have had the advantage of reading the judgment of my brotherGarvin, and I have examined the cases quoted in that judgment.It seems to me that the line of authority in regard to clauses ofdisinherison and declaration of irrevocability in Kandyan deeds ofgift establishes the following propositions: —
it is open to a Kandyan parent to make a deed of giftaffecting his whole property and entirely disinheriting one or moreof his children.
Before the Court will give effect to such a deed, it must besatisfied that the existence of the child or children was in the contem-plation of the donor at the time when he made the gift, and thatwhen he made it he had the express intention to disinherit eitherall his natural heirs or a particular one, as the case might be.
That where a donor has disposed of part of his propertyby a deed which purports to be irrevocable, such a deed operatesas against the heirs, although there may be no express clause ofdisinherison.
I do not think it has ever been held that a deed of gift of thewhole of the donor's property is good as against his children merelybecause the deed purports to be irrevocable.
That a testamentary document disposing of the whole ofthe testator's property may be good although it does not containan express clause of disinherison.
There can be no doubt that the tendency of the Courts has beento require less and less formality in the words which have to be usedin deeds of gift to. disinherit children. The sole requirement thatremains is that, the Court should be satisfied that this intention waspresent to the mind of the donor when he made the deed.
If I might suggest a reason for the distinction made betweendeeds of gift and testamentary dispositions, it would be that whena person makes a testamentary disposition he is presumed to havehis mind specially directed to his children, who are his natural28/25
1927.
Carvin' j.
Oinieraihamjr. Manuel
A ppuhanttf
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heirs, whereas it is not presumed that when he makes a gift inferJjyaio- vivos the effect of the gift upon his natural heirs is present toOiRAOT J. jlis mjn(J
«*SSSP The fact that express mention of heirs was required in aAppuhamy deed relating to thewhole propertywhile itwas not required
in a deed which dealtwith part of theproperty is explicable on the
^theory that the law only interferes'to-preserve'the rights of children
when those rights are in danger of extinction and does notinterfere to preserve them in their entirety.
It is admitted that in the present case the deed of gift dealswith the donor’s whole property and that it has the effect ofdisinheriting his infant son.
I do not think the authorities go so far as to say that such a deedcannot be disputed bythe heir merelybecause itis expressed to be
irrevocable, nor do Ithink that theclause inthe deed binding
the donor, his heirs, executors, administrators, &c., to warrantand defend* the premises must necessarily operate as a clause ofdisinherison. That is a formal clause inserted by the notary whodrew up the deed, and it is possible that its full effect might nothave been apparent to a donor to whom the deed was merely read.over while he was lying ill in bed. The fact, however, that aboutthree months previously the donor had- executed a deed of giftof the same land to other persons, who are also strangers, satisfiesme that the doqor by the second deed did intend to disinherithis wife .and child. In these circumstances, I have come to theconclusion that the appeal should be dismissed, with costs.
Appeal dismissed.