Present: Middleton J.

KOMALIE v. KIRI.

Kandyan law-Revoation of deed of gift-Special clause of disinherison- What is paraveni property ?-Acquired property.

A Kandyan woman revoked a donation of a land to her children, as they had failed and neglected to render assistance to her. Subsequently she donated it to her daughter-in-law; this deed contained a clause that none of her heirs, executors, administrators, or assigns should make any dispute with regard to the gift.

Held, that this clause had (in the circumstances) the effect of a special clause of disinherison.

A clause of disinherison is necessary only when all the paraveni lands are gifted.

THIS was an appeal from the following judgment of the Commissioner of requests, Matale (W. Dunuwille, Esq.):--

The field in dispute was the acquired property of Tikirie. She gifted it among other lands under certain condition by deed No. 19,997 dated December 30, 1905, to her niece (daughter-in-law) Komalie, the plaintiff in this action. The donor died without revoking this gift, and plaintiff claims title under this deed.

The plaintiff complains that the defendant, who is the daughter of Tikirie is in the wrongful possession of this field. The defendant claims title to the field in right of her mother and by right of prescriptive possession. Tikirie, the original owner, died two years ago, and in my opinion neither plaintiff nor defendant can succeed by right of prescriptive possession. Tikirie on January 25, 1884, appears to have executed a conditional deed of gift, No. 6,828, for this field and other lands in favour of defendant and her brother Kira (plaintiff's husband). She on April 11, revoked this gift by a deed No. 17,046 P, and executed on December 30, 1905, the deed of gift under which the plaintiff now claims. Tikirie's right to revoke the gift deed No. 6,828 is not disputed, nor do I think it can be; but it is contended that the gift in plaintiff's favour is bad in law, in that it does not contain a clause of disinherison as against Tikirie's daughter, the defendant. On this contention I hold that at the present day no clause of disinherison is needed in a Kandyan deed of gift, even it' the gift was to a stranger, and even if such a clause is needed to disinherit the defendant, I hold that the execution by Tikirie of the deed of revocation No. 17,046 is proof of such disinherison. Then, again, as the plaintiff is the daughter-in-law of Tikirie, the gift in her favour did not require for validity a special clause.

I give judgment for plaintiff for the field with costs.

The defendant appealed.

Grenier, for the defendant, appellant.-The deed of gift in favour of the plaintiff is invalid, as there is no special clause of disinherison. Indejoti Unnanse v. Keerala;1 Bandara Menika v. Palingo Menika;2 Austin's Reports 192 and 203; Perera's Armour, p. 95, section 8.

In Appuhamy v. Kiri Menika3 it was decided that a clause of disinherison was not necessary when the deed is from husband to wife. Impliedly, therefore, if the deed was to any other than the wife, a clause of disinherison would be necessary. See also Punchi Appu v. Baba Appu.4 Sundara v. Peris5 assumes that a clause of disinherison is necessary; but this case draws a distinction between gifts de presenti and those which are to take effect after the death of the donor. It regards the latter class of deeds as wills, and therefore not requiring the clause. But this distinction is not one that is now recognized. At whatever time the deed is to take effect it is regarded as a gift. Carolis v. Don Davith.6

J. W. de Silva, for the plaintiff, respondent.-Under the Kandyan law an owner may dispose of his property as he pleases, by sale or gift or request (Perera's Armour 93). Ordinance No. 21 of 1844 gives every one full power of testamentary disposition. This deed is in the nature of a testamentary disposition.

The necessity for a clause of disinher