001-SLLR-SLLR-1999-V-3-MUTHBANDA-AND-ANOTHER-v.-GUNARATNE.pdf
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Muthubanda and Another v. Gunaratne
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MUTHUBANDA AND ANOTHER
v.GUNARATNE
COURT OF APPEALEDUSSURIYA, J„
JAYASINGHE, J.
C.A. NO. 176/91 (F).
DC BANDARAWELA NO. 440/L.
OCTOBER 27, 1998.
Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938 – SS. 4(1), 5 – Gift – Revocabiiity – Can there be a revocation when the rights havealready passed – Prior Registration – Evidence Ordinance s. 68 – Proof ofexecution of a deed.
The plaintiff-respondent sought a declaration of title to the land in question. Hisposition was that the original owner one HB gifted the corpus by deed No. 59287of 10. 6. 1971 to one A, one of his predecessors in title and subsequently hebecame the owner. The defendant-appellant contended that HB was a Kandyanwhose property rights are governed by the Kandyan Law Declaration and AmendmentOrdinance and the said HB had not renounced the right of revocation and thatthe said deed of gift was revoked by deed No. 31294 of 21. 10. 1976, there-after the said HB had by deed of Transfer No. 31295 of 24. 10. 1996 transferredsame to the 2nd defendant-appellant.
The District Court entered .judgment for the plaintiff-respondent. On appeal it wascontended that the Kandyan Law is silent on the question whether there can bea revocation of a deed when the rights on the deed have already passed to athird party.
Held:
The Kandyan Law reserves to the donor the right to revoke a gift duringhis life- time and without the consent of the donee or any other personand therefore it is not open for the donee acting unilaterally to deny thedonor a right that is reserved under s. 4 (1), and s. 5 (1) and providesfor the renunciation of the right to revoke, which right should be expresslyrenounced by the donor, either in the same deed or by any subsequentinstrument.
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S. 4 (1) and s. 5 (1) read together clearly spell out the donors right torevoke, and the donee by a subsequent retransfer to a 3rd party couldnot defeat the donors right to revoke a gift during his lifetime and withoutthe consent of the donee or any other person.
The execution of the deed of revocation was not challenged and not putin issue at the trial. S. 68 of the Evidence Ordinance prohibits the useas evidence of any document required by law to be attested until oneattesting witness at least has been called for the purpose of proving itsexecution.
Once a gift becomes void after revocation in terms of s. 4 (1) registrationof other deeds or registration in the proper folio will not revive a deedthat is void.
APPEAL from the judgment of the District Court of Bandarawela.
Cases referred to:
Arnolis v. Muthumenika – 2 NLR 199.
Solicitor-General v. Awa Umma – 71 NLR 512.
Banda v. Hethuhamy – 15 NLR 193.
Appuhamy v. Holloway – 44 NLR 276.
H. M. P. Herath with W. D. G. Wickremasinghe for 1st defendant-appellant.
K. M. P. Rajaratne for 2nd defendant-appellant.
N. S. A. Gunatileka, PC with N. Mahendra for plaintiff-respondent.
Cur. adv. vult.
October 27, 1998.
JAYASINGHE, J.
The plaintiff instituted this action in the District Court of Bandarawelaagainst the defendants for a declaration of title to the paddy land calledWewa Arawa, for ejectment of the defendants and all those holding
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Muthubanda and Another v. Gunaratne (Jayasinghe, J.)
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under them and for peaceful possession of the land and for damagesin a sum of Rs. 500 per year from 1982 until restoration of possession.
According to the plaintiff the original owner of the property wasone R. M. Heen Banda who by a deed of transfer No. 59287transferred the said property to one R. M. Appuhamy on 10. 06. 1971.The said R. M. Appuhamy by deed No. 458 of 29. 7. 1973 madea conditional transfer to one Simon Appu. Thereafter, the said Appuhamyand Simon Appu transferred the property to one Chularatne Peiris- a minor, who by deed No. 7325 of 10. 10. 1982 transferred theproperty to the plaintiff and that the plaintiff and his predecessors intitle were in possession for a period of over ten years and haveprescribed thereto. They alleged that the defendants had forciblyoccupied the land and are now in possession.
The defendants filed answer denying the plaintiff's claim, andaverred that the original owner of the property was one RatnayakeMudiyanselage Heen Banda by deed No. 830 of 8. 6. 1915 and thatthe said Heen Banda was a Kandyan whose property rights aregoverned by the Kandyan Law Declaration and Amendment OrdinanceNo. 39 of 1938, that the said Heen Banda had not renounced theright of revocation of the gift referred to in the plaint – deed of giftNo. 59287 and that the said deed of gift was revoked by deed No.31294 of 24. 10. 1976 and that even after the revocation of the deedof gift the physical possession of the property was with the said HeenBanda. That the said Heen Banda by deed of transfer No. 31295of 24. 10. 1976 transferred the said property to the 2nd defendantand the 2nd defendant became the owner thereof. That the defendantsare husband and wife and that the plaintiff forcibly entered the propertyin November, 1982, and that the defendants resisted the intrusion.The defendants prayed for dismissal of the action.
The learned District Judge entered judgment for the plaintiff aftertrial. This appeal is from the judgment of the learned District Judge.
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This appeal was argued before L. H. G. Weerasekera, J. and myselfon 6. 11. 1997 and judgment was reserved. However, before thepronouncement of the judgment Weerasekera, J. was elevated to theSupreme Court and the matter was fixed for argument before Edussuriya,J. and myself on 14th September, 1998. On that day counsel submittedto Court that exhaustive written submissions have been tendered andthat the matter may be disposed of on the written submissions alreadybefore Court in lieu of oral arguments.
The plaintiff's case is that one R. M. Heen Banda was the originalowner of the land called Wewa Arawa and that he gifted it to oneR. M. Appuhamy and that thereafter the aforesaid Appuhamy executeda conditional deed of transfer in favour of one K. W. T. Simon Appuand the aforesaid R. M. Appuhamy and K. W. T. Simon Apputransferred to one Chularatne Peiris and that the said ChularatnePeiris thereafter transferred it to the plaintiff. The plaintiff claimed titleaccordingly.
The defendants on the other hand stated that the deed of giftNo. 59287 is a revocable deed of gift and that it was in fact revokedby the deed marked P14 and the original owner R. M. Heen Bandaexecuted a deed of transfer D16 on the same day in favour of the2nd defendant.
The main contention of the defendants was that there had beena valid revocation of the deed No. 59287 and therefore the plaintiffacquired no title. The learned District Judge in his judgment pointedout that there are three main matters for determination before Court:
Whether deed No. 59287 whereby the original owner gifted theland to one R. M. Appuhamy was revoked by deed No. 31294 markedP14 and D17;
Whether there was a valid transfer to the 2nd defendant by thesubsequent deed No. 31295 marked D16;
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Whether there was priority of registration in favour of the plaintiffand his predecessors in title by virtue of due registration of their deeds.The other matter for determination was the question of prescription.
Jhe plaintiff took up the position in their written submissions whetherthe deed of revocation and the subsequent deed of gift to the 2nddefendant was duly proved.
As regards the 1st question whether the deed No. 59287 wasrevoked by deed No. 31294, Mr. Gunathileke submitted that deed No.59287 had been executed on 10. 6. 1971 and that two years laterthe donee R. M. Appuhamy had executed a deed of transfer by deedNo. 458 of 29. 7. 1973 in favour of Simon Appuhamy and submittedthat this was a conditional transfer but the condition notwithstandingit was a transfer by which all rights of ownership in R. M. Appuhamywere divested and vested in his vendee subject only to the conditionthat he was required to retransfer the property; that the revocationby deed No. 31294 was executed on 26. 10. 1976 by a deed executedover 3 years after R. M. Appuhamy had transferred his rights in theland; that after R. M. Appuhamy had divested himself of his rightsthere could have been no question of revoking the deed No. 59287as the donee thereon had divested himself of any title and transferredhis rights thereof to a 3rd party. He submitted that once a transfereeon a deed of gift had alienated that property the right to claimrevocation thereof cannot arise under the Roman Dutch Law whichis the common law and that this aspect is not covered by the KandyanLaw and also by the Kandyan Law Declaration and AmendmentOrdinance.
Section 4 (1) of the Kandyan Law Declaration and AmendmentOrdinance provides:
That subject to the provisions and exceptions therein after con-tained a donor may within his life time and without the consent ofthe donee or any other person cancel or revoke in whole or in part
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any 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 inthe instrument 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 has accruedbefore the commencement of this Ordinance be affected or prejudicedby reason of the cancellation or revocation of the gift to any greaterextent than it might have been if this Ordinance had not been enacted.
Section 5 (1) stipulates the deeds of gift which cannot be revokedand, in the present context it is unnecessary to dwell on such mattersexcept to advert to section 5 (1) (d); it states that:
"Any gift the right to cancel or revoke which shall have beenexpressly renounced by the donor, either an instrument effecting thatgift or in any subsequent instrument by the declaration contained inthe wordsSOo® gSSaiSffl® qgJoO®' “or words substantially the
same meaning or if the language of the instrument be not Sinhala,the equivalent of those words in the language of the instrument."
Mr. Gunathileke submitted that the Kandyan Law Act, is silent onthe question whether there can be a revocation of a deed when therights on the deed have already passed to a third party. Mr. Gunathilekethen submitted that the common law which is the Roman-Dutch Lawcan apply even to transactions involving persons governed by personallaws where such situations are not covered by their own personallaw. Mr. Gunathileke submitted that under the Roman-Dutch Law adeed cannot be revoked even if there are grounds for such revocationif the subject-matter has been transferred to a 3rd party in good faithand without fraudulent intention prior to a revocation. Mr. Gunathilekesought to create a vaccum in the Kandyan law in that no provisionhas been made for situations whose property have passed to a 3rdparty and thereafter sought to import the Roman- Dutch Law to fill
Muthubanda and Another v. Gunaratne (Jayasinghe, J.)
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the said void. I am unable to accept that there is a vaccum in theKandyan Law and that the Roman-Dutch Law ought to apply in thecircumstances in view of the words found in section 4 (1). during
his life time and without the consent of the donee or any otherperson …"
Section 4 (1) of the Kandyan Law Declaration and AmendmentOrdinance clearly reserves to the donor a right to revoke a gift andsection 5 (1) (d) provides for the renunciation for the right to revoke.These two sections taken together clearly spell out the donor's rightto revoke and hence on a plain reading of the two sections it is myview that the doneee by a subsequent retransfer to a 3rd party couldnot defeat the donors right to revoke. The Kandyan Law reserves tothe donor the right to revoke a gift during his lifetime and withoutthe consent of the donee or any other person and therefore it is notopen for the donee acting unilaterally to deny to the donor a rightthat is reserved under section 4 (1). Mr. Gunathilake also sought toattack the transfer to the 2nd defendant by deed No. 31295. Hesubmitted that the notary on both deeds was Mr. Stanley H. Abeysekera,a very senior and respected Attorney-at-law, practicing in that Court.It is in evidence that Mr. Abeysekera did not know Heen Banda thedonor personally. The deed of revocation No. 31294 was witnessedby Anura Ratnayake and a person called Punchibanda. The saidPunchibanda had died and the death certificate pertaining to his deathhas been filed before this Court. It was the position of the plaintiff-respondent that Anura Ratnayake the 2nd defendant was while beingthe vendee of deed No. 31295 one of the witnesses to the deed ofrevocation No. 31294. Mr. Gunathilake submitted that she had everyinterest in procuring such a deed of revocation to be executed andthat it is her evidence and only evidence which is brought forwardto establish that the person who executed deed No. 31294 was HeenBanda himself and the deed No. 31295 on which the 2nd defendantclaims title, her husband Muthubanda the 1st defendant signed asa witness and that the other witness Premadasa Jayasinghe was notcalled as a witness. That the 1st defendant who is the husband of
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the 2nd defendant was the only witness called and that Mr. Abeysekeracould not speak to the identity of the transferor and submitted thatit is clear from the said circumstances that a fraud has been practiced.Mr. Gunathilake submitted that by the failure to place before Court,both witnesses must necessarily lead to the finding that the two deedsNo. 31294 and No. 31295 have not been proved and that the onlyevidence before Court in support of these documents is that of theparties who benefited by them and caused them to be executed.
Mr. Herath submitted that the defendant was not able to obtainthe death certificate of Punchibanda a witness to deed No. 31294to be produced at the trial. However, on the application made to thisCourt it was permitted to file the death certificate. He submitted thatthe absence of the witness Punchibanda was satisfactorily explainedand that the evidence of the 2nd defendant was sufficient to provethe deed No. 31294, under section 68 of the Evidence Ordinance.He faulted the learned District Judge's finding that both attestingwitnesses were required to prove the execution of the deed undersection 68 of the Evidence Ordinance. He also submitted that, at thetrial the execution of the deed was not challenged and not put inissue at the trial. The deed No. 31295 was attested by two witnesses,Muthubanda the 2nd defendant's husband and one PremadasaJayasinghe. He again faulted the learned District Judge's finding thatthe defendant failed to prove the two deeds No. 31294 and No. 31295in that to wit the witnesses to each instrument was not called at thetrial. Mr. Herath submitted that the authority relied on by the trial Judgein Amolis v. Muthumenika°> is inapplicable in that the 2 deeds inquestion were not challenged. The Mortgage bond referred to in thatcase was challenged on the basis of a forgery. The Supreme Courtobserved: “the plaintiff called the Notary and one of the attestingwitnesses. It appears that the other attesting witness had left thedistrict and had not been seen for some time. So, that his absencewas not accounted for. The Acting District Judge of Ratnapura heldthat as a matter of law it was necessary to call both attestingwitnesses. I am unable to agree with that statement of law. A deed
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can be proved by the evidence of one witness though as a matterof precaution it may be advisable in many cases to call all thewitnesses. Held, that the deed was sufficiently proved. It is relevantto point out that the deeds in question were not challenged at thetrial and there was no issue raised on the basis of fraud.
Mr. Herath also referred to Sakar on Law of Evidence 10th edition,page 95. He submitted that the question of calling more than onewitness arises according to the circumstances of the case. In Solicitor-General v. Awa Ummat2). T. S. Fernando, J. observed that "the learnedtrial Judge has held that the prosecution has failed to satisfy section68 of the Evidence Ordinance. The section prohibits the use asevidence of any document required by law to be attested until oneattesting witness at least has been called for the purpose of provingits execution …" Therefore, I am inclined to accept the submissionof Mr. Herath that the trial Judge erred when he held that the twoinstruments were not proved.
As regard the priority of the registration the plaintiff raised 2 issues17 and 18. Mr. Gunathilake submitted that there is due registrationof the deeds relied on by the plaintiff and such deeds must prevailby priority of registration. This submission was based on the fact thatdeed of gift No. 59287 was not revoked and had transmitted title tothe plaintiff. The learned District Judge observed that the plaintiff'sdeeds are registered in the proper folio suggesting the inference thatthe defendants deeds are not. Mr. Herath submitted that the findingof the learned District Judge is erroneous. That no question of reg-istration or prior registration does arise here and relied on section4 (1) of the Ordinance. He submitted that immediately upon the giftbeing revoked by the donor the gift becomes void and of no effectand any transaction that flowed from deed of gift No. 59287 was voidand no rights flow from the said deed. The question of prior registrationdoes not arise. He referred to Banda v. Hethuhamwhich laid downthat, "the doctrine of Caveat Emptor must certainly apply to ourcontracts for sale of land in the Kandyan Provinces and all purchases
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for valuable consideration should be duly put upon inquiry as to theirvendor's title to convey”. Mr. Herath submitted that once a gift becomesvoid after revocation in terms of section 4 (1) registration of otherdeeds or registration in the proper folio will not revive a deed thatis void and thereafter has no right, title or interest to convey toanybody. In Appuhamy v. Hollowathe Supreme Court observedthat the question of title had to be considered independently of thelaw of registration. In Appuhamy's case (supra) when Mudalihamyexecuted the deed of revocation 2D2 in 1904 the very foundation oftitle of Punchirala based on P2 was destroyed and Punchirala hadno right based on that deed that he could transfer to a vendee.
The learned District Judge was in error when he held in favourof the plaintiff on the question of registration.
It is unnecessary at this stage to go into the question of prescriptionby the 2nd defendant since I have come to a finding that there wasa valid revocation of the deed of gift No. 59287 of 10. 6. 1971 bydeed No. 31294 of 24. 10. 1976 and that the 2nd defendant acquirestitle by deed No. 31295. Question of prescriptive possession by the2nd defendant, therefore, does not arise as regards prescriptive rightsof the plaintiff. The trial Judge has come to a finding that the plaintiffhas not been in possession. Even if the plaintiff was in possessionthe adverse possession would commence in 1976 when the deed ofgift was revoked. Since action has been instituted in 1983 the questionof prescription does not arise.
I, accordingly, set aside the judgment of the learned District Judgeand enter judgment for the defendants as prayed for and with costsfixed at Rs. 2,100.
EDUSSURIYA, J. – I agree.
Appeal allowed.