Ponnamperume V. Goonesekera Et Al.,

Present : De Sampayo J. and Garvin A. J.

PONNAMPERUME v. GOONESEKERA et al.

78.-D.C.Galle, 16,996 F.

Donation-Power of revocation reserved-Donor may revoke without sanction of Court-Is there a time limit ?-Remuneratory donation- Donation propter nuptias.

A donor may expressly reserve a power of revocation and exercise it himself without obtaining a decree of Court.

A donation propter nuptias is not revocable for ingratitude during the subsistence of the marriage. But it may be revoked by a donor who has reserved the power of revocation.

A donation proper nuptias is not a mere gift made on the occasion of a marriage, but a contract made as an inducement to marry. Where a donor reserves to himself the power to cancel the deed " at any time hereafter," there is no time limit within which the' power must be exercised.

THE facts appear from the following judgment of the District Judge (L. W. C. Schrader, Esq.):-

This is an action for the partition of a land which belonged to one Kurupanawe Gamage Juwanis. Juwanis sold the same by deed No. 258 of March 7, 1919, to the plaintiff and first defendant for valuable consideration, and the deed P 2 is registered.
Plaintiff and first defendant, therefore, divided the land in equal moieties, assigning planting interests to the second, third, and fourth defendants.

2. It appears, however, that Juwanis by deed No. 3,539 of March 5. 1908 (copy of 5 D 2), gifted half of the land and buildings to his niece, Karonchihamy, with a fidei commissum in favour of her children Sipila, Grace, and Noel, and any others unborn, and, subsequently, cancelled or purported to cancel it by deed No. 8,272 of November 30, 1914 (P 17). The original donation deed is annexed, and, admittedly, is not registered.

3. The added party, Nichulas, the husband of the fiduciary donee and father of the child Noel, intervenes, and claims the two boutique rooms 2 and 3 put up by him, the planter's interest of a plantation of 58 trees put in by him, and prays that his wife be declared entitled to a half part of the land, and the plaintiff's action be confined to the other part. His wife has accepted the revocation and does not join.

4. The issue is whether the gift is revocable, and whether the plaintiff's deed gains priority by registration.

5. On the first point it has already been held between the parties that this deed of gift was not a donatio mortis causa, though it is so expressed in the document And it does not comply with the requisites of a donatio mortis causa (Pereira's Institutes 602). The reservation for cancellation is incidental to the class of deeds mortis causa, and any kind of donation is irrevocable, subject to the exceptions enumerated

at page 610. None of these apply. Moreover, the deed is charged with a reversion to the donee's children, and once accepted by the
fidei commissaries it becomes irrevocable. These were all minors at the time. Acceptance by the fiduciary donee, their mother, is acceptance on their behalf donation, acceptance by the fiduciary donee is a sufficient acceptance on behalf of the unborn descendants." (17 N. L. R. 279.)

" In such cases as the present where the reversioners are the legitimate descendants of the donees, acceptance by the fiduciary donee is a sufficient acceptance on behalf of the descendants, and preclude the donor from revoking it." (18 N. L. R. 222.)

6. The plaintiff's contention, however, is that all these considerations apply to cases where no power of revocation is reserved. Here there is the express power of revocation. This is a lawful power (11N.L.R.151), and is valid. Mr. Jayawardene's contention was that the clause is merely incidental to a donatio mortis causa, and this one is not mortis causa, though recited as such. Therefore, if it is not mortis causa, it is a deed inter vivos, with an express power of revocation reserved. I think, therefore, that the deed was revocable.

7. N

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