048-SLLR-SLLR-2002-V-2-SOMALATHA-AND-OTHERS-v.-WICKREMASINGHE-AND-OTHERS.pdf
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Somalatha and Others v. Wickremasinghe and Others
347
SOMALATHA AND OTHERS
v.WICKREMASINGHE AND OTHERS
COURT OF APPEALWIGNESWARAN, J. ANDTILAKAWARDANE, J.
CA NO. 31/95 (F)
DC KEGALLE NO. 1713/LJUNE 27, 2000AUGUST 03, 2000
Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938 – S. 4 (1),(2), 5(1), 5(1) (d), 6, and 6 (1) – Revocabiiity of a Deed of Gift – Strict compliancewith S. 5 (1) (d) – Imperative.
One R gifted irrevocably the premises in dispute to one S subject to life interestin favour of his wife. He later revoked the said gift.
The question that arose for determination was whether the said deed of gift wasrevocable or not.
The District Court held that the revocation was valid.
Held:
Kandyan Law gives the right to a donor without the consent of the doneeor any other person, such as the life interest holder, to cancel or revokeany gift by an instrument in writing in conformity with the law.
However, gifts to a temple, gifts in consideration of marriage, gifts effectinga charitable trust and gifts where right to revoke is renounced s. 8 (1)(d) are the exceptions.
Although the donor explained in the deed of gift that he was giving a giftwhich was irrevocable and absolute under all circumstances, he did notsay that he was renouncing his right to revoke such an "irrevocable andabsolute" gift. The section expected such renunciation in words similar towhat is mentioned in s. 5 (1) (a), if a gift was to be considered as anexception to the general rule of revocability of gifts under the KandyanLaw.
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APPEAL from the judgment of the District Court of Kegalle.
Nimal Jayasinghe with P. P. Gunasena for 1 – 4th defendant-appellants.L. V. P. Wettasinghe for plaintiff-respondent.
Cur. adv. vult.
December 04, 2000WIGNESWARAN, J.
The plaintiff-respondent, 5th defendant-respondent (now deceased)and the husband of the 1st defendant-appellant (deceased) werebrothers subject to Kandyan Law. The 2nd to 4th defendant-appellantare the children of the 1st defendant-appellant.
The father of the above-named three brothers, Rankira, giftedirrevocably the premises in dispute on 07. 03. 1958 by deed No. 531(P1) to Sundara alias Sirisena, the deceased husband of the 1stdefendant-appellant subject to life interest in favour of the wife ofRankira. By deed No. 915 dated 18. 07. 1995 (P2) the said Rankirarevoked the said gift.
The question that has arisen for determination in this case iswhether deed No. 531 was revocable or not. By judgment dated28. 02. 1995 the Additional District Judge, Kegalle, held in favour ofthe plaintiff-respondent. The revocation was held by him to be valid.
The learned Counsel for the 1st to 4th defendant-appellant hasargued that the said deed of gift was –
Irrevocable;
In any event a unilateral revocation was invalid under KandyanLaw; and
1
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Somalatha and Others v. Wickremasinghe and Others
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The defendants and their predecessor in title had acquired 20prescriptive title to the premises in question by uninterruptedand undisturbed possession from 1958.
These arguments would presently be examined.
{}) and fii) above – Deed of Gift No, 531 (P1) and the unilateralrevocation by Revocation Deed No. 915 (P2).
The words in P1 relied upon by the 1st to 4th defendant-appellantsfor irrevocability are the following :
"6S cm® £®a»aC ®8 ffiSSeOa ®S® ajdsraei eegroSe) q?0©o<$ as eawwSoocuQ 53 ecesetod ©Sa qSocses^’ – 2D2.
■q®@ ai®§® C3i® cpax^ocseS® esSad o^a exctoO' – 2D3.30
Sections 4 (1) and (2) of the Kandyan Law Declaration andAmendment Ordinance No. 39 of 1938 reads as follows :
“4.(1) Subject to the provisions and exceptions hereinafter
contained, a donor may, during his lifetime and wihtout the consentof the donee or of any other person, cancel or revoke in wholeor in part any gift, whether made before or after the commencementof this Ordinance, and such gift and any instrument effecting thesame shall thereupon become void and of no effect to the extentset forth in the instrument of cancellation or revocation : …"
No such cancellation or revocation of a gift effected 40after the commencement of this Ordinance shall be of force oravail in law unless it shall be effected by an instrument in writingdeclaring that such gift is cancelled or revoked and signed and
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executed by the donor or by some person lawfully authorized byhim in accordance with the provisions of the Prevention of FraudsOrdinance or of the Deeds and Documents (Execution before PublicOfficers) Ordinance."
Section 5 (1) of the same Ordinance reads as follows :
"5 (1) Notwithstanding the provisions of section 4 (1), it shallnot be lawful for a donor to cancel or revoke any of the followinggifts where any such gift is made after the commencement ofthis Ordinance :
any gift by virtue of which the property which is the subjectof that gift shall vest in the trustee or the controllingviharadhipatl for the time being of a temple under theprovisions of section 20 of the Buddhist TemporalitiesOrdinance or in any Bhikkhu with succession to hissacerdotal pupil or otherwise than as pudgalika for thebenefit of himself and his heirs, executors, administratorsor assigns;
any gift in consideration of and expressed to be inconsideration of a future marriage, which marriage hassubsequently taken place;
any gift creating or effecting a charitable trust as definedby section 99 of the Trusts Ordinance;
any gift, the right to cancel or revoke which shall havebeen expressly renounced by the donor, either in theinstrument effecting that gift or in any subsequentinstrument, by a declaration containing the words 'gons&Q
so
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SOo® q?Q80)Sffl@ epesteS®’ or words of substantially the samemeaning or, if the language of the instrument be notSinhala, the equivalent of those words in the languageof the instrument : Provided that a declaration so madein any such subsequent instrument shall be of no forceor effect unless such instrument bears stamps to thevalue of five rupees and is executed in accordance withthe provisions of the Prevention of Frauds Ordinance orof the Deeds and Documents (Execution before PublicOfficers) Ordinance."
Section 6 of the said Ordinance reads as follows :
(1) Upon the cancellation or revocation of any gift, the
donor shall be liable to pay to the donee compensationin such sum as shall represent the cost of anyimprovements to the property effected by the donee, afterdeducting the rents and profits received by him, and theexpenses incurred in the fulfilment of the conditions, ifany, attached to the gift, provided that if the donee hasmade default in the fulfilment of any such conditions, nocompensation shall be payable to him in respect of theimprovements or otherwise.
Such compensation shall be payable to any doneeotherwise entitled thereto whether or not he would bean heir at law of the donor in the event of such donordying intestate.
In this section "donee" includes any person who hassucceeded to the title of the donee under the gift.
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Kandyan Law gives the right to a Donor without the consent ofthe Donee or any other person, such as the life interest holder, tocancel or revoke any gift by an instrument in writing in conformitywith the law. Therefore, the question of a unilateral revocation [argument 100(ii) above] without notice to the donee does not arise for consideration.
But, there are certain exceptions to the general rule that gifts arerevocable. Gifts to a temple [section 5 (1) (a)], gifts in considerationof marriage [section 5 (1) (b)], gifts effecting a charitable trust [section5 (1) (c)] and gifts where right to revoke is renounced [section 5(1) (d)] are the exceptions.
The basic question to be asked in gifts seeking exception to comeunder section 5 (1) (d) is not how strongly the gift had been expressedbut whether there had been a deliberate and express renunciationby the donor of his right to revoke. In other words, the donor, conscious 110of his right to revoke under Kandyan Law, should have expressedin words similar to the words mentioned in section 5 (1) (d) that hewas renouncing his right to revoke. In the instant case the wordsexpressed (2D2 and 2D3 above) were descriptive of the nature ofthe gift. That is, the donor explained deed No. 531 that he was givinga gift which was irrevocable and absolute under all circumstances.
He did not say that he was renouncing his right to revoke suchan "irrevocable and absolute" gift. The section expected suchrenunciation in words similar to what is mentioned in section 5 (1)
(d), if a gift was to be considered as an exception to the general 120rule of revocability of gifts under Kandyan Law.
Passages 2D2 and 2D3 were rightly found by the learned AdditionalDistrict Judge to have been words which did not express renunciationof the right to revoke.
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flii) Prescription
At pages 223 and 224 the cross-examination of the plaintiff-respondent appears as follows :
"g:®dg©gs»®@g006«sx3@a»o@®gSo© gates) fflS® qSSoEJ am.
e:am.
g :axeto stB&xsi q&Q og0 dc»0 6 eogi gateD qfSSoeJ am?130
C:am
g:6 q©gates)©©ottodecxao®)Sckd5@o0?
C :SsfflaJssxJoaa) oa»o0@. 000 o©dSooe crSSS. dwod qBeaOo e®. <9
os»(3@efiO ogogcs© 3oStes@) oocxi. OsoO oa>®® 000 oeoSooeci gSoOca00 gates)©).’
Sirisena, the husband of the 1st defendant and brother of theplaintiff, resided throughout with his father Rankira at the Mulgedera.After Sirisena married, with Rankira's leave and licence, he broughthis wife and resided at the said Mulgedera. Even thereafter despitethe revocation of the deed of gift, he had continued to live in the nopremises, not on his own right but with the leave and licence of hisbrother, the orignal 5th defendant. The original 5th defendant alsoresided in the Mulgedera until he died after this case was filed. Hence,the possession claimed by the 1st to 4th defendant-appellants wasa possession based on leave and licence and not independent. Inany event the deed of gift was prima facie not absolute as far asthe husband of the 1st defendant was concerned. His mother hadlife interest according to P1. Any attempt to prove prescriptive titleshould have placed evidence of adverse possession against themother and the brothers. Such evidence was not placed before Court. 190
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The 1st defendant referred to improvements or repairs to flooramounting to Rs. 5,000 or Rs. 6,000 and further expenditure uptoone or two lakhs. Such evidence was not supported by any documentaryor other corroborative evidence. But, it must not be forgotten that thedefendants enjoyed free occupation of the premises in suit and theplantations thereon from the time of the Testamentary case of Rankira.Rankira had left the property by Last Will to the plaintiff and theoriginal 5th defendant-respondent subject to life interest of his wife.
If any event any compensation in terms of section 6 (1) of the KandyanLaw Declaration and Amendment Ordinance would have been 160payable by Rankira at the time of revocation.
Nevertheless, we agree with the learned Additional District Judgethat appropriate and acceptable evidence regarding improvements orrepairs had not been placed before Court. The issues referred onlyto improvements amounting to Rs. 3,000 plus Rs. 2,000 and nothingmore.
We, therefore, see no reason to interfere with the judgment dated28. 02. 1995 and accordingly dismiss the appeal with taxed costspayable by the 1st to 4th defendant-appellants to the plaintiff-respondent.
TILAKAWARDANE, J. – I agree.
Appeal dismissed.