MOHAMED LEBBAI

VS.

MOHAMED ABIYAR AND OTHERS

SUPREME COURT
JAYAWARDENA, J.
SURASENA. J.
AMARASEKARA, J.
SC/APPEAL/127/2012
SC/HCCA/LA/57 /12
NWP/HCCP/KUR/97/07/F
DC KURUNEGALA 3532/L
MAY 15, 2020

Declaration of title and ejectment-Deed of gift-Non-acceptance of the gift-Revocation of the gift-Failure to raise an issue of fact in the trial court-Jurisdiction of the appellate court-Applicability of special laws

A mother gifted land to her son by way of a deed of gift and the son later transferred the land to the plaintiff. On the same day as the land was transferred to the plaintiff, the mother revoked the gift on non-acceptance and ingratitude. Upon the death of the mother, her children including the said donee transferred their rights to the land to one son who transferred it to the defendant. The plaintiff filed action in the District Court seeking a declaration of title to the land and ejectment of the defendant there from. The main issue before the District Court was whether the deed of gift had been validly revoked. This issue was answered in the affirmative on the basis that the mother was subject to Kandyan Law and therefore could revoke the gift without a court order. The District Court dismissed the plaintiffs action on the basis that the revocation of the deed was

valid. The High Court reversed the judgment of the District Court on the basis that there was acceptance of the gift. The defendant appealed to the Supreme Court.

Held :

1. The District Court was wrong to have come to the finding that since the disputed land is within the Kurunegala District where Kandyan Law applies, the donor could cancel the deed without reason and as such the revocation was valid. Kandyan Law is not a territorial law that applies to all people resident in the Kandyan province but a law personal to Kandyan Sinhalese and, admittedly, the donor being Tamil was not governed by Kandyan law.

2. A donation given by a deed is not valid if the donation is not accepted by the donee, and in such event execution of a deed of revocation is not necessary although it is done in practice to remove any doubt.

3. The revocation of a deed of gift on gross ingratitude can be done only on an order made by a competent court.

4. Whether the gift was accepted or not, which is a mixed question of fact and law, was not a matter in issue in the District Court. A new contention involving a mixed question of fact and law cannot be raised for the first time on appeal. The High Court sitting in appeal exceeded its jurisdiction by considering the validity of the gift on the ground of whether it had been accepted or not.

5. The law does not require a particular form or method to accept a gift. lt is a matter to be decided on the attendant circumstances.

6. The conclusion of the High Court is correct despite the basis for the same being unacceptable.

Cases referred to :

1. Hanaffi v. Nallamma [1998] 1 Sri LR 73
2. Kulatunga v. Ranaweera [2005] 2 Sri LR 197
3. Chandrasiri Fernando v. Titus Wickramanayake [2012] BLR 344
4. Public Trustee v. Uduruwana 51 NLR 193
5. Welluppu v. Mudatihamy (1903) 6 NLR 44
6. Abubucker v. Fernando [1987] 2 Sri LR 225
7. Hendrick v. Sudritaratne (1912) 3 CAC 80

8. Nagalingam v. Thanabalasingham 50 NLR 97 at 98
9. D.C. Matara 20,862 (1871) Vand 168
10. Siriwardene v. Wirawanthan [2001] 2 Sri LR 288
11. Nonai v. Appuhamy 21 NLR 165
12. Fernando v. Alwis 37 NLR 201
13. Bertie Fernando and others v. Missie Fernando and others [1986] 1 Sri LR 211
14. Kanapathipillai v. Kasinather 39 NLR 544
15. Bindua v. Untty 13 NLR 259
16. Somawathie v. Wilmon [2010] 1 Sri LR 128
17. Thalwatte v. M. Somasundaram [1997] 2 Sri LR 109 at 111 and 112
18. Chrishanthi Peiris v. Matilda Fernando and 3 others [2012] BLR 354
19. Pathmawathie v. Jayasekare [1997] 1 Sri LR 248
20. Government Agent, Western Province v. Palaniappa Chetti 11 NLR 151
21. Carolis v. Devith