Ukku Banda V. Paulis Singho

Present: Dalton J. and Jayewardene A. J.

UKKU BANDA v. PAULIS SINGHO et al.

282-D. C. Kegalla, 6,818.

    Kandyan law-A gift absolute and irrevocable-Revocability.

Where a Kandyan deed of gift was expressed in the following terms : " I, Ukku Banda, in consideration of the love and affection which I have and bear unto Lokuhamy, do hereby give, grant, assign, transfer, set over, and assure unto the said Lokuhamy, her heirs, executors, administrators, and assigns as a gift absolute and irrevocable .... to have and to hold the said shares of the said premises hereby conveyed or intended so to be unto the said Lokuhamy, her heirs, executors, administrators, and assigns absolutely for ever,"-

Held, that the deed was irrevocable.

PLAINTITFF brought the present action for a declaration of title to a land which he had in 1905 by deed P 1 gifted to his wife, Lokuhamy. Lokuhamy died in 1922, leaving a daughter, Punchinona, who by deed D 2 sold the land to the first defendant. In 1923, plaintiff, by deed P 2, revoked his deed of gift. In 1924, by deed D 3, the first defendant conveyed the land to the second defendant. Both the defendants were bona fide purchasers. The learned District Judge held that the deed of gift was revocable and gave judgment for the plaintiff. The defendants appealed.

H. V. Perera (with him C. V. Ranawake), for defendants, appellants.-Kandyan gifts are as a rule revocable, but there is nothing illegal in a party contracting himself out of the rights which the law gives him, provided it does not violate any statute or it is not against public policy or morality. The tendency has been to restrict the power of revocation and bring the Kandyan customary law into line with the common law of the land (Tikiri Kumarihamy v. de Silva1).

There is no definite authority on the point; it has been laid down in Molligodde v. Sinnetamby2 that if renunciation of the power to revoke is permissible under the Kandyan law the renunciation should be in express and unmistakable language. The deed itself should be examined to ascertain the true intention of parties (see Kirihenaya v. Jotiya3). The relevant words in the present case are that the gift should be " absolute and irrevocable " and that the donee should have the property "absolutely and for ever." These terms are unambiguous, and there is no need

1 (1906) 9 N. L. R. 202.
2 (1878) 7 S. C. C. 118.
3 (2922) 24 N. L. R. 149.

for a special clause of renunciation. The Court should not be Ukku Banda called upon to give to these words an intention beyond what they clearly and unmistakably signify.

Navaratnam, for plaintiff, respondent.-The general rule of law is that all deeds of gift, be these conditional or unconditional, are revocable. Gifts to priests and temples alone are deemed to be exceptions to this rule. A third class of exception has been recognized in a series of decisions, in which it has been held that the presence of consideration for a gift renders it inequitable to permit a revocation. Thus it follows that the revocability of a voluntary gift, as in the present instance, is well within the rule of law. It is, however, contended that a donor has an inherent right to renounce the right of revocation. This doctrine, though foreign to Kandyan law, has been recognized only in cases where the renunciation was in express and unmistakable terms. The deed under consideration does not come within this category. The following authorities, among others, were relied upon : Perera's Armour, pp. 90-95, Molligoda v. Keppetipola1 Tikiri Kumarihamy v. de Silva,2 Banda v. Hetuhamy,3 Ban Menika v. Banda Lekam.4

March 24,1926. DALTON J.-

Plaintiff sued for a declaration of title to land which he had in 1905 given by deed P 1 to his wife, Lokuhamy. Lokuhamy died in 1922, leaving a daughter, Punchinona. By deed D 2 in 1922, which was duly registered, Punchinona sold and conveyed the land to the fi

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