K. M. R. H. KEKULANDARA, Appellant, and T. B. MOLAGODA, Respondent

091-NLR-NLR-V-71-K.-M.-R.-H.-KEKULANDARA-Appellant-and-T.-B.-MOLAGODA-Respondent.pdf


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H. N. G. FERNANDO* C.J.—Kckulandara v. Molagoda
1988 Present: H. N. G. Fernando, C.J., and Wljayatilake, J.K. M. R. H. KEKULANDARA, Appellant, andT. B. MOLAGODA, Respondent
S. C. 301/66 [F)—D. C. KegaUe, 15263/L
Kandyan law—Deed of gift executed prior to year 1939—Revocability—Effect ofwords such as " the donee shall possess for ever ”—-Kandyan Law Declara-tion and Amendment Ordinance (Cap. SO), ss. 4 (J), 5.
In a clause in a Kandyan deed of gift, which was executed prior to thecommencement of the Kandyan Daw Declaration and Amendment Ordinance,tho donors recited that they “ do hereby transfer set over and assure by wayof gift unto the said Donee his heirs executors administrators and assigns thesaid several premises •and all the estate right title interest claim and
demand whatsoever of us tho said Donors into upon or out of the sand premiseshereby gifted and assigned and each of them and every part thereof whichare of the value of Rupees One Thousand (Rs. 1,000) unto the said donee hisafore written for ever
Held, that tho gift was revocable as against the donee (even if the provisoto section 4 (1) of the Kandyan Law Declaration and Amendment Ordinancewas intended to protect a donee). Words such as “ the donee shall possess. for ever ” could not, by themselves and without more, constitute an effectiverenunciation of the right of revocation.
Appeal from a judgment of the District Court, Kegalle.
H. V. Perera, Q.C., with C. R. Ounaratne and T. B. Dissanayake,for the plaintiff-appellant.
H. W. Jayewardene, Q.C., with S. S. Basnayake and Ananda Parana-vitane, for the defendant-respondent.
Cur. ado. milt.
September 27, 1968. H. N. G. Fernando, C.J.—
The plaintiff sued the defendant for a declaration of title to two landsconveyed to the plaintiff by one Senaratne Banda on Deed No. 829 of27th April, 1961. Senaratne Banda himself had acquired'the two landsfrom one Bandara Menike by a deed of 20th November 1956, P3.
The defendant, who is a son of one M. B. Mollegoda, claimed thatBandara Menike had by a deed of Gift of 7th August 1935, PI, donatedthese lands to his deceased father. Bandara Menike by deed P2 of20th November 1956 purported to revoke the donation which she hadmade to the difendant’e, deceased father by PI. It was agreed between34 -PP 006137 (98/08)
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the parties at the commencement of the trial that if the donation PIwas irrevocable the plaintiff will have no title, and on the other handthat, if PI is held to have been revocable, the plaintiff will have title tothe lands by virtue of the deeds P2 and P3. The learned District Judgehas held against the plaintiff that PI was not revocable. This appeal isagainst that finding.
The only provision in PI upon which the trial Judge relied is the clausein which the Donors recite that they “ do hereby transfer set over andassure by way of Gift unto the said Donee his heirs executors adminis-trators and assigns the said several premises … and all the estate
right title interest claim and demand whatsoever of us the said Donorsinto upon or out of the said premises hereby gifted and assigned andeach of them and every part thereof .which are of the value of RupeesOne Thousand (Rs. 1000/-) unto the said donee his aforewritten forever ”. The construction which the learned Judge placed on this clauseis made clear in the following passage from his judgment:—
“ In my view these words show that the Donors surrendered everyright or demand that they had over the premises gifted to the Doneefor ever. To my mind these words clearly .show that the Donorssurrendered all their rights including their right of revocation.”
The admissions of the parties at the commencement of the trialestablish that both Bandara Menike and her son the Donee on Piwere persons subject to the Kandyan Law. The law relating to therevocation of a deed of donation by such a person is the subject ofstatutory provision in the Kandyan Law Declaration and AmendmentOrdinance, Cap. 59. Section 4 of that Ordinance provides as follows :—
“4.(1) Subject to the provisions and exceptions hereinafter
contained, a donor may, during his lifetime and without the consentof the donee or of any other person, cancel or revoke in whole or in partany gift, whether made before or after the commencement of thisOrdinance, and such gift and any instrument effecting the same shallthereupon become void and of no effect to the extent set forth in theinstrument of cancellation or revocation :
Provided that the right, title, or interest of any person in anyimmovable property shall not, if such right, title, or interest hasaccrued before the commencement of this Ordinance, be affected orprejudiced by reason of the cancellation or revocation of the gift toany greater extent than it might have been if this Ordinancehad not been enacted. ”
Section 5 of the Ordinance provides that it shall not be lawful for adonor to cancel or revoke gifts of a specified description made after thecommencement of the Ordinance, and sub-section (2) of Section 5 makesit clear that these limitations on revocability do not affect gifts made
H. N. G. FERNANDO, C.J.—Kekulandara v. Molagoda436
before the commencement of the-Ordinance. Accordingly Section 4 (1)is the relevant provision applicable in the case of the gift PI, which wasmade before 1st January 1939.
The substantive provision in Section 4 (1) declares the right of adonor, without any fetter or limitation, to revoke a gift made before 1stJanuary 1939, but the proviso to this sub-section does impose a limitation,namely that a revocation must not prejudice any right title or interest ofcertain 'persons to a greater extent than it might have been prejudicedunder the law applicable before 1st January 1939. Counsel for the"plaintiff in the present appeal has argued that the protection intendedby the proviso is only for persons other than a donee himself. It turnsout however that the plaintiff must in any event succeed in this appeal,even if the proviso was intended to protect a donee. .1 shall thereforeassume for the purpose of this case that the revocation of a gift madebefore 1st January 1939 will be effective against every person, includinga donee, whose right title or interest accrued before 1st January 1939,only to the same extent as it would have been effective under the lawprevailing before 1939.
A very early case on the subject of the revocation of a Kandyan deedof Gift is that of Kiri Menika v. Cau Raid-l. According to the report thedeed in this case gave certain lands to the donee “ to be possessed finallyas paraveni property ”. But it appears that the report of this case isincorrect.or incomplete, in that it did not fully set out the terms of the .deed then under consideration. This matter is made clear in the judgmentof Justice Wood Renton in the case of Kumarihamy v. de Silva 2. Thelearned Judge there said that he had looked at the text of the recorditself of the 1858 case, and he specified the relevant provisions of thedeed, which were :—
It transferred the lands to the donee “ to hold finally in
paraveni
It provided further that in future “ I myself (the donor) or any
one else who may descend from me or any person or personswho may receive administrations (sic) over my estates fromthis day shall do or say no dispute ”, and
It had a clause that the donee may dispose of the property
according to pleasure.
The brief judgment as reported in Lorenz, stated that “ the donorhaving renounced on the face of the deed her right to revoke the SupremeCourt considers the deed irrevocable ”. The judgment in this case wasone of a Full Bench and is therefore binding on me. Having regardto the brief terms of the judgment, it is unsafe to think that the Court,in holding that the donor had renounced her right to revoke, reliedparticularly only on any one of the provisions of the deed which I havecited above. The only safe inference in my opinion is that the Court
1 (1858) 3 Lorenz Appeal Reports, p. 76.' (1906) 9 N. L. R. 202 at 214.
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H. N. Q. FERNANDO, C.J.—Kektdandara v. Molagoda
relied on all the provisions taken together. The 1858 decision is thusnot authority for the proposition that words such as “ the donee shallpossess for ever” constitute by themselves a renunciation of the rightof revocation.
The case of Kumarihamy v. de Silva was heard in review by the FullCourt, whose judgments are reported at 12 N. L. R., p. 74. JusticeWendt in his judgment in review adds nothing of interest to what he hadstated in his judgment after the original hearing (9 N. L. R. 202, at 207).In that judgment he reproduced in its entirety the provisions of the deedwhich he ultimately held to be a provision against revocation. Thoseprovisions {vide page 208) were substantially similar to the provisions of. the deed in the earlier 1858 case, in that they recited that the donoror his heirs, etc., shall not raise any dispute whatsoever against thisdonation, and that the donee and her heirs shall according to pleasurehold and possess for ever.
Middleton J.’s judgment in the hearing in review does not deal with theform of words necessary to constitute an effective renunciation of theright to revoke a gift, and Hutchinson C.J. also appears to have reachedwithout difficulty the conclusion that the language of the particulardeed effected a renunciation. More consideration however was givento this matter by Wood Renton J., who only participated in the originalhearing. Having cited the provisions of the particular deed, he statedas follows:—
“ Taken by themselves, the cases of Kiri Menika v. Cau Rala andHeneya v. Rana 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.”
As to the question therefore of the language which can be properlyheld to be an effective renunciation of the right of revocation, thejudgments in the case of Kumarihamy v. de Silva fairly establish in myopinion that, just as in the 1858 case of Kiri Menika v. Cau Rala, theCourt relied “On all the provisions of the deed for the conclusion thatthere had been an effective renunciation.
In Dharmalingam v. Kumarihamy1, the head note of the report correctlyreads as follows :—
“ Where a Kandyan deed of gift contained a clause, which gave
the donee the right to deal with the property gifted as ‘ to will
and pleasure . coupled with a promise not to ‘ raise or utter any
dispute whatever held that the gift was revocable.”
*
Hut in this case Schneider J., in referring to the 1858 case of Kiri Menikav. Cau Rala, appears to have relied on the report in Lorenz as to theprovisions of the deed in the 1858 case, and to have thought thereforethat in the 1858 case the Full Bench had held that the words “ to be
1 (1925) 27 N. L. R. 8.
H. N. 6. FERNANDO, C.J.—Kekulandara v. Molagoda ■
437
possessed finally as paraveni property ” constituted a renunciation of theright of revocation. But I have already pointed out that in fact(as stated later by Wood Benton J.) the deed in the 1858 case containedthree provisions, and not merely the single provision “ that the doneeshall possess for ever
Perhaps also because of this incorrect impression in his mind concerningthe 1858 case, Schneider J. in Dharmalingam v. Kumarihamy1 said that“ in Tikiri Kumarihamy’8 case the pregnant words were that the doneeshall * hold and possess for ever ” But Schneider J. himself thoughtfit, when setting out the relevant portions of the deed which he wasactually considering, to quote also the provision that the donor and hisheirs, etc., have hereby promised not to raise or enter any disputewhatsoever against the gift. In these circumstances I am unable toagree that the judgment of Schneider J. is acceptable authority for theproposition that the formula “ the donee shall possess for ever ”constitutes, by itself and without more, an effective renunciation of theright of revocation.
The case of Vkku Banda v. Paulis Singho 8 is not of much assistanceupon the question I am now considering, because there the terms of thedeed were that the land was given “ as a gift absolute and irrevocable ”,language which placed beyond doubt the intention to renounce theright of revocation.
A judgment of 1878 which is reported in 7 S. C. C., p. 118, held that agift, which included an undertaking by the donor not to raise any disputeand a provision that the donee and the heirs etc., shall possess doingwhatsoever they please, was revocable, the Court not being disposed toinfer a renunciation from what was viewed as only words of furtherassurance. Counsel for the defendant in the present case has relied onthis judgment for the argument that in the 1858 case the effective wordsof renunciation were “ the donee shall possess for ever ”, and that (asSchneider J. stated) these words would be the pregnant words of renun-ciation. It seems to me however that in considering whether a donorhas expressed an intention that he will not revoke his donation, the Courtmust search for some language equivalent in meaning to “ I will notrevoke this deed ”, and that words such as “ I will not raise any disputeagainst this donation ” are more nearly equivalent to the exact formulathan any such language as “ I give it to the donee for ever ”. A donorwho states that he will not raise any dispute against his donation mightfairly be said to be making a promise that he will not interfere with thetitle of his donee, and in my opinion he would commit a breach of thatpromise if he does interfere with the title by revoking the donation.
I would therefore respectfully agree with Garvin J. when he said in.
the case of Ounadasa v. Appuhamy 3 that the words “ for ever ” make
no difference to the meaning of a clause in a gift and that such words
merely manifest an intention to vest the donee with full dominion. The
(1925) 27 N. L.R.Sat p. 13.* (1926) 27 N. L. R. 4*9.
» (1934) 36 N. L. R. 122.
1
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decision of Garvin J. that giving property to the donee “ for ever ” isnot an expression of renunciation of the power to revoke, does notin my opinion conflict with any of the earlier decisions which werecited to us.
Counsel for the defendant also invited us to take the view that, inconsidering whether a donor has sufficiently expressed a renunciation ofthe right to revoke, a distinction should be made between conditionaland unconditional gifts. He argued that in many of the cases the questionof renunciation has been decided with reference to deeds which wereconditional on the affording of succour and assistance by the donee, andthat even if the words “gift to the donee for ever ” may be held to beinsufficient in such deeds, the same language should nevertheless beconsidered sufficient in the case of unconditional gifts made purely outof love and affection. I find nothing in the past judgments of this Courtto justify any such distinction. A donor must be presumed to be awareof his legal right to revoke a donation, irrespective of whether the donationis made with or without expectation of succour and assistance from thedonee. In a case where there is such an expectation, it seems properto attribute to a fair-minded donor an intention that he will not revokethe donation unless his expectation proves to have been optimistic.But where a gift is made purely out of love and affection, that is, entirelyfor the benefit of the donee, it is more reasonable to attribute to the donorthe intention that his legal right of revocation will be unfettered. Inthis sense, a donation made purely out of love and affection containsfar less of the element of contractual obligation than does the conditionaldonation. If then a renunciation of the right of revocation is to be morereadily inferred in one case rather than in the other the Courts shouldin my opinion reach that inference more readily in the case of theconditional gift, where the element of contractual obligation is moreevidently present than in a case where a gift is unconditional.A distinction between • cases of the two different classes, even ifjustifiable, would thus be unfavourable to the defendant in this case.
I hold for these reasons that the deed P2 was a valid revocation of thedonation PI.
As I have earlier indicated, the District Judge was invited to decidethis case purely upon admissions made by Counsel on behalf of the parties.In consequence, the need to prove the title of the plaintiff was over-looked. The decree under appeal is set aside pro forma and the recordis returned to the District Court, when the plaintiff will be given anopportunity to prove his title on the assumption that the donation Piof 1935 was validly revoked by P2 of 1956. If the title is proved to thesatisfaction of the District Judge, he will enter decree in favour of theplaintiff in terms of settlement recorded in Court on 29.4.1966 ; if not,he will again dismiss the plaintiff’s action with costs. The plaintiffwill be entitled to the costs of this appeal.
WiJAYATiLAKic, J.—I agree.
Decree, set aside pro forma.