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BANDA v. HETUHAMY et al.
NLR15V193
Present: Lascelles C.J. and Middleton J.
BANDA v. HETUHAMY et al.
290-D. C. Kurunegala, 3,996.
Kandyan law-Clause in deed of gift renouncing right of revocation-Effect of.
A deed of gift containing a clause renouncing the right of revocation is revocable under the Kandyan law, if the donee fails to observe the stipulations subject to which the gift was made.
Middleton J.-It is an admitted principle of the so-called Kandyan law that all deeds of gifts of lands, excepting those made on priests and temples, are recovable during the lifetime of the donor. I would therefore hold that the doctrine of caveat emptor must certainly apply to all contracts for sale of land in the Kandyan Provinces, and all purchasers for valuable consideration should be duly put upon inquiry as to their vendor's title to convey.
THE facts appear in the judgment.
Bawz, for appellants.
Sampayo, K.C., (with him H. A. Jayewardene),- for the respondent.
The following authorities were cited at the argument: Tikiri Kumarihamy v. De Silva et;1 Unambuwe v. Junghamy;2 Modder's Kandyan Law 135; Austin's Reports 15, 903; Pereira's Armour 95; Molligoda v. Kepitipola;3 Marshall's Judgments 313, 320, and 321.
Cur. adv. vult.
October 13, 1911. Lascelles C.J.-
This case raises the much discussed question of the revocability of Kandyan deeds of gift, the gift in question not being one for past services. The plaintiff by deed of gift dated February 6, 1906, made over the bulk of his property to his grandson. The deed was expressed to be made " in consideration of the love and affection which I bear and cherish towards him and for his future welfare." The deed was also expressed to be subject to the condition that the donee should possess the property undisturbedly, " after paying and settling the principal Rs. 2,000 and interest thereon " which had been borrowed by the donor upon mortgage on some of the donor's property. The power of revocation is renounced in the following terms: "I, the donor, have hereby promised not to revoke the gift, and that I am not able to revoke the same.
1 (1906) 9 N. L. R. 202; 12 N. L. R. 74 2 (1892) 2 C. L. R. 103.
(same case in review). 3 (1858) 3 Lor. 24.
In February, 1910, the donee sold to the defendants the lands comprised in the deed of gift, and in June of the same year the donor revoked the deed of gift on the grounds (1) that the donee had behaved with ingratitude and cruelty towards the donor in his old age, and (2) that he had not carried out the covenant to pay off the mortgage debt.
The District Judge, after finding that the donee had not been guilty of cruelty and ingratitude, and that the donee tad only discharged about Rs. 500 of the mortgage debt, upheld the revocation of the donation, and entered judgment for the plaintiff for the land in dispute.
The authorities on the revocation of Kandyan deeds are set out at length and discussed in Tikiri Kumarihamy v. De Silva et al.,1 where it was held that a Kandyan deed of gift in consideration of past services, and containing a clause renouncing the right of revocation, is irrevocable under the Kandyan law. But in the present case the deed is not for past services, and it was confidently asserted by counsel for the respondent that no authority could be produced for the proposition that such deeds, even though the power of revocation is renounced, are irrevocable.
It is difficult to extract any definite principle from the conflicting authorities and decisions on Kandyan law, but the most logical statement of the principle which governs such cases, i.e., cases in which the gift is in consideration of future services, is to be found in the passage cited from Armour in 9 N. L. R. 211: -
But all conditional and unconditional gifts are not revocable; some gifts are irrevocable; for instance, if th
