Gunerathamy V. Manuel Appuhamy

1927 Present : Garvin and Lyall Grant JJ. 

GUNERATHAMY v. MANUEL APPUHAMY.

133-D. C. Kurunegala, 11,039.

Kandyan law-Deed of gift of all landed property-Disinherison of heir-Clause of disinherison-Gift absolute and irrevocable.

A deed of gift by a Kandyan parent of all his landed property is inoperative against his heirs unless it contains a clause of disinherison.

No particular formula is necessary for disinheriting an heir so long as there appears in the deed language which discloses an intention to disinherit.

Per Garvin J., Semble.?The requirement of a clause of disinherison must be limited to cases in which the donor has not expressly renounced his right of revocation nor manifested an intention that his grant was to have the effect of an absolute and irrevocable disposition.

APPEAL from a judgment of the District Judge of Kurunegala. Plaintiff, the minor son of one Malhamy claimed to be declared entitled to the subject-matter of the action as the sole heir of his father. The defendant resisted the claim on a deed of
1 9 N. L. R. 142.

gift made in his favour by Malhamy. This deed was attacked on two grounds: (1) that it was not the act and deed of the donor, (2) that as the donor had by the deed parted with all his landed property his son was entitled to the premises by inheritance, in the absence of an express clause of disinherison. The learned District Judge dismissed the plaintiff's action.

H. V. Perera, for plaintiff, appellant.

Drieberg K. C. (with Weerasooriya), for defendant, respondent.

February 28, 1927. GARVIN J.-

This is a contest as to title. The plaintiff is the minor son of Malhamy, and is represented by his duly appointed next friend. He claims to be entitled to the subject-matter of the action as the sole heir of his father. His claim is resisted by the defendant, who bases title on a deed of gift No. 4,010 dated July 8, 1921 made in his favour by Malhamy. This deed of gift is attacked in two grounds: First, that it is not the act and deed of the donor; and second, that inasmuch as by this deed the donor has parted with all his landed property, it is in the absence of an impress clause of disinherison of no avail against the claim of his monthly surviving legitimate son to take the premises by right of inheritance.

The evidence shows that for some time before his death, which took place on July 9, 1921, the donor had been estranged from is wife and had been living apart from her and his son and with strangers. Towards the end of his life he had been staying with be defendant, and during that period developed the illness which roved to be his last. He was brought to Colombo to Dr. Rutnam's hospital, where he died. The deed of gift was executed the day before he died. The evidence of the notary and the other witnesses  believed establishes that he was in full possession of his senses, no that his mental faculties were unimpared when he executed he deed of gift. There is the further circumstance that about three months previously he had executed a deed of gift of lese lands in favour of some other persons, who also were strangers. That gift he revoked before he executed the deed under consideration.

The District Judge has accepted this evidence, and has found lat the plaintiff has failed to establish circumstances which would in law avoid the gift. The transaction labours under the suspicion which attaches to deeds executed shortly before the donor's death, but upon a consideration of all the evidence I am unable to say that the District Judge was wrong.

The principal ground on which the appeal was pressed was that the deed was bad for the reason that it contained no words which could fairly be held to disclose a, clear intention on the part of the donor to disinherit his son.

The general effect of the evidence on this point is that by this deed the donor divested himself of all his landed property, and there is

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