1922 Present: Ennis and Schneider JJ.

KIRIHENAYA v. JOTIYA,

72-D. C. Regatta, 5,798,

Kandyan law-Deed of gift-Renunciation of the rights of revocation-

A Kandyan deed of gift which expressly renounces the right of revocation, and which is not dependent on any contingency, is irrevocable.

A deed of gift is a contract, and there is no rule of law which makes it illegal for one of the parties to the contract to expressly renounce a right, which the law would otherwise give him.

IN this case the plaintiff sued the defendant for a declaration of title to the hinds described in the plaint, pleading title upon a deed of conveyance No. 20,755 dated October 5, 1922, from Kuda Ridi.

The defendant denied plaintiff's title, and pleaded title in himself, claiming the same from the donee of the said Kuda Ridi.

Kuda Ridi, the admitted owner, first gave deed of gift No. 597 (D 1), and revoked the said deed No. 597 by deed of revocation No. 20,754 (P 1), and transferred the same to the plaintiff, appellant, on deed No. 20,7.55. The defendant claimed title from the donee on deed No. 597.

The parties went to trial on the following issue: Is deed No. 597 of December 20, 1908 (D 1), a revocable deed? The learned Judge (V. P. Redlich, Esq.) delivered the following judgment, dismissing plaintiff's action, with costs: -

There was only one issue framed in this case. It was agreed on by the parties. It related to the interpretation of a deed of gift (D 1) No. 597 of December 20, 1908, by a Kandyan to her grandson. This grandson by a deed of March, 1920 (D2), sold his rights to defendant.

The original Kandyan donor, however, by deed No. 20,754 of October 5, 1920, purported to revoke deed of gift (D 1), and on the same date sold the portion in dispute to plaintiff.

The question then arose whether the original deed (D1) was revocable,

Mr. Molamure relied on 15 N, L. R. 193 which, however, is not on all fours with this case: in the deed in that case there was a condition attached to the gift which condition was not fulfilled by the donee. He also read to Court from Modder's, pp. 173-175 and p. 154. The statements therein contained were accepted by Mr. Swan, but he argued that this case could not be brought in under those circumstances, inasmuch as in her deed (D 1) the donor gave up her right to revoke the deed.

At a later stage, under protest by Mr. Swan, Mr. Molamure called the donor to prove under what circumstances he revoked the deed; her evidence was in conflict with the terms of her deed of revocation, and 1 do not believe her oral evidence.

Mr. Molamure further relied on Modder. pp, 193-194, -but failed to prove that the donor had re-entered into possession, or had quitted donee's premises and had taken up residence elsewhere from where she got support.

Mr. Swan's argument that the donor had renounced her right to revoke appeared to me to be sound, and I answer the issue against
plaintiff, and dismiss his action, with costs,

The following is the deed (D 1): -

Deed of Gift No. 697.

Know all. men by these presents dated December 20, 1908, I, Vidane-henayalage Kuda Ridi of Welimanna in Tumpalata pattu in Paranakuru korale, do hereby declare as follows:-That for and in consideration of the filial love and affection and various other good qualities, and for the sake of his future welfare, I, the aforesaid Vidanehenayalage Kuda Ridi of Welimanna, do hereby gift and make over to Vidanehenayalage Abanchiyahenaya of Welimanna, one of my grandsons, the, lands, high and low, together with the plantations and buildings standing thereon, more fully described in the schedule hereunder written,' all valued at Rs. 500. And I hereby declare that I shall not revoke this deed of gift at any time in any manner, or change it in any way after date hereof. Therefore, the said Vidanehenayalage Abanchiyahenaya, or his heirs, &c, from date hereof, can possess and own the said undivided s