Present: Akbar J.

TIKIRA v. TIKIRA.

43-C. R. Kandy, 4,581.

    Kandyan law-Deed of gift-Revocation for failure to maintain-Mother and son-Compensation for improvements.

Where, under the Kandyan law, a gift was revoked because the donee, who was a child of the donor, failed to observe the condition of the gift as regards maintenance,- "

Held, the donee was not entitled to compensation for improvements effected on the land donated.

THE plaintiff claimed the value of improvement effected by him on a land which was gifted to him by his mother, the second defendant. Subsequently she revoked the gift on the ground that the plaintiff had failed to carry out the conditions of the gift, viz., to render assistance, and sold the land to the first defendant. At the trial the plaintiff admitted the title of the first defendant. The learned District Judge dismissed the plaintiff's action.

N. E. Weerasooria, for plaintiff, appellant.-Roman-Dutch law, and not Kandyan law, should be applied in this case. The District Judge having held that the plaintiff was a bona fide possessor should have given him compensation. If it is claimed by the defendant that Kandyan law applies, he should have raised an issue on the point.

Even under the Kandyan law compensation would be payable. See Tikiri Banda v. Banda,1[1 3 S.C.C.31. .] a Pull Bench case.

This deed is not revocable. See clause in the deed " The heirs .... of me the said Dotu shall cause no dispute whatsoever by word or deed hereafter contrary to this donation. "

Defendant alleged non-observance of the condition in the deed, and it was for him to prove such non-observance.

Even if this deed is revocable, it was wrongly revoked, and the plaintiff is entitled at least to compensation for improvements as a bona fide possessor.

Wendt, for defendant, respondent.-The parties are Kandyans resident in the Kandyan provinces ; so, clearly the Kandyan law is applicable. It was for the donee, as plaintiff in the case, if he contended that Roman-Dutch law should apply, to raise an issue on the point to prove his case completely.

Gifts to a child when revoked give the child no claim to compensation (Perera's Armour, p. 91).

 Where the cause of revocation is non-fulfilment of the condition of maintenance contained in the deed, no compensation is payable to the donee on revocation (Perera's Armour p. 92).

Tikiri Banda v. Banda (supra) is distinguished from the present case as it was not the case of a gift to a child, and the revocation was apparently capricious (see Berwick J.'s judgment). The above passages in Armour were also not before the Court in that case.

This deed of gift is obviously revocable. See clause " And after my death the. said two children may hold and possess.... absolutely and for ever free of dispute as paraveni. "

Here the deed was given on an executory and not an executed condition ; therefore it was revocable. Further, the burden of proof is on the party alleging performance of the condition. See Perera's Collection, pp. 38 and 39.

June 4, 1929. AKBAR J.-

In this case the plaintiff-appellant appeals from a judgment dismissing his claim for the value of improvements effected by him on a land which was gifted to him by his mother, the second defendant in this case (now dead), but the deed was afterwards revoked by her under the Kandyan law and the land sold to the first defendant.

It is clear from the plaint that he based his claim as a bona fide possessor under the Roman-Dutch law. In the answer the defendants denied that any cause of action had accrued to him to recover from them the value of the improvements. At the trial the plaintiff admitted the title of the first defendant, and the value of the improvements was also admitted as Rs. 77 '75.

The following issues were framed :-

(1) Did plaintiff possess the land and improve same ?

(2) Was such possession bona fide ?

(3) Is the plaintiff entitled