SOORIYA BANDARA

Vs.

PUSHPAWATHIE AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/594/1996/F
DC KULIYAPITIYA 7558/L

Deed of gift-Presumption in favour of acceptance of a deed of gift- Burden of proof of non-acceptance-Revocation of an irrevocable deed of gift-Necessity for an order of court-Applicability of special laws

The plaintiff filed action against the three defendants seeking a declaration of title to the land in suit and ejectment of the defendants therefrom. After trial, the District Court dismissed the plaintiff's action on the basis that as the defendants are also co-owners of the land, the dispute ought to be resolved by way of a partition action. The plaintiffs case was based on the premise that the original owner revoked the deed of gift executed in favour of the two daughters by way of a subsequent deed of revocation. On appeal, the plaintiff contended that there was no acceptance of the deed of gift and the deed of revocation was valid. ·

Held:

1. The general principle is that a donation is not complete unless it is accepted by the donee.

2. There is a rebuttable presumption In favour of the acceptance of a deed of gift, and the burden is on the party who asserts that it was not accepted to rebut that presumption. The plaintiff in this case has failed to rebut that presumption.

3. The question of acceptance of a deed of gift is one of fact and each case has to be determined individually. At the time the deed of gift was executed the two donees were minors and the gift was accepted by the future husband of one of the donees on behalf of both the donees. This is valid acceptance.

4. The application of special laws in derogation of the common law shall be proved by the person who claims It. That the donor was subject to Kandyan Law was not proved.

5. The donor has not reserved the power of revocation in the deed of gift. Hence it is irrevocable. An irrevocable deed of gift cannot be revoked without a decision of the court and therefore the deed of revocation executed by the donor unilaterally is void. If the deed of revocation is void, subsequent deeds that flow from it are also void.

Cases referred to:

1. Hendrick v. Sudritaratne (1912) 3 CAC 80
2. Government Agent, Southern Province v. Karolis (1896) 2 NLR 72
3. Bindua v. Unity (1910) 13 NLR 259
4. Bertie Fernando v. Missie Fernando [1986] 1 Sri LR 211
5. Dullewe v. Dullewe (1968) 71 NLR 289 (PC)
6. Sirisena v. Eyelyn de Silva [2003] 2 Sri LR 255
7. Piyadasa v. Babanis [2006] 2 Sri LR 17
8. Dona Podi Nona Ranaweera Menike v. Rohini Senanayake [1992] 2 Sri LR 180
9. Ariyawathie Meemaduma v. Jeewani Buddhika Meemaduma [2011] 1 Sri LR 124
10. Wilson v. Sumanawathie (CA/535/95/F, CA Minutes of 30.11.2007)
11. Padmal Ariyasiri Mendis v. Vijith Abraham de Silva [2016] BLR 69 at 73

APPEAL from the Judgment of the District Court of Kuliyapitiya.

Manohara de Silva, P.C., for the Plaintiff-Appellant.

Dr. Sunil Coorey for the Defendant-Respondents.

cur. adv. vult.

January 22, 2019

SAMAYAWARDHENA, J.

The plaintiff filed this action against the three defendants seeking a declaration of title to the land described in the schedule to the plaint, ejectment of the defendants therefrom and damages. The defendants sought dismissal of the action. After trial, the learned District Judge dismissed the plaintiff's action on the basis that, as the defendants are also co-owners of the land, the dispute ought to be resolved by way of a partition action. It is against the said Judgment that the plaintiff has filed this appeal.

The original owner of the land was Jinadasa. His two daughters are the 1st defendant Pushpawathie and Seelawathie. The 2nd and 3rd defendants are the children of Seelawathie. Jinadasa gifted the property subject to the life interest of himself and his wife to Pushpawathie and Seelawathie by Deed of Gift marked P9. Thereafter he has purportedly revoked that gift by Deed of Revocation m