Tikiri Kumarihamy V. De Silva

[In Review. ]

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.

TIKIRI KUMARIHAMY v. DE SILVA et al.

D. C, Kegalla, 1, 879.

Kandyan law-Donation for past services-Renunciation of right to revoke-Irrevocability.

A Kandyan deed of gift made in consideration of past services rendered by the donee to the donor and containing a clause renouncing the right of revocation is irrevocable.

HEARING in review of the judgment reported in (1906) 9 N. L. R. 202.

Bawa (with him Batuwantudawe), for the plaintiff, appellant.

Walter Pereira, K. G., S. -G. (with him Samarawickreme), for the defendants, respondents.

Cur. adv. vult.

March 2, 1909. Hutchinson C. J. -

This is a hearing in review. The first question debated was one of Kandyan law, as to the revocability of a deed conveying lands to the grantee in consideration of past payments and services. The defendants claim under that deed. The plaintiff claims under a subsequent deed, by which the grantor purported to revoke the earlier one. If the earlier deed was irrevocable, the plaintiff can only succeed by proving title by proscription; and the second question is whether he had proved such a title. The decisions under review were adverse to the plaintiff on both points.

The deed, which has been held to be irrevocable, is dated May 25, 1864, and is fully set out in the judgments under review. The grantor in consideration of services Tendered to her for the last four years by her daughter Madduma, and of expenditure in cash of about £100 incurred by Madduma for physicians and medicines for her, transferred certain lands to Madduma, and covenanted that henceforth the grantor and her heirs, &c, would raise no dispute against " this donation, " and that, if any such dispute should arise

during her lifetime, she would deliver the lands from this day forth to Madduma, who should hold and possess them for ever without dispute.

The appellant's counsel contends that the rule to be extracted from the conflicting decisions and dicta is that by Kandyan law every deed of gift of lands (with some exceptions which do not apply in this case) is revocable by the donor, even if it contains a clause by which the donor purports to renounce his right to revoke; and that a deed executed for a past consideration is a deed of gift. And it seems to be the law that a grant of land in consideration only of the grantee undertaking to render services to the grantor in the future is to be construed as a conditional grant and is revocable, subject to the right of the grantee to recover compensation for expenses which he may have incurred in reliance on the grant. The respondent contends that a grant made in consideration of past services is irrevocable, at any rate if the deed contains a clause debarring the grantor from revoking it.

In my opinion the respondent's contention is right, and this case is concluded by the decision of the Full Court in D. C., Kurunegala, 13, 801, reported in 3 Lorenz 72 and quoted in the judgments under review.

I should have liked to inquire into the reason for these rules in Kandyan law, and as to whether or why a man should not be allowed to bind himself not to revoke his deed of gift, and whether or why the ordinary covenant for title, whereby the grantor covenants that he will not dispute the grantee's title, is not equivalent to a covenant not to revoke the gift, and whether or why any such covenant is necessary in order to make a grant in return for past services irrevocable. But as it is not necessary to decide these matters in order to decide this question, I will leave them alone.

The appellant referred us to Dingiri Menika v. Dingiri Menika, 1 in which a grant of land to a woman, in consideration of the fact that the grantor's son was to be married to her, was held to be revocable, on the ground that a grant of that kind is a gift and not a transfer for value.

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