1944 Present: Howard C.J.

HAPUMALI,

Appellant, and UKKUA, Respondent.

261-C. R. Panwila, 10,430.

Kandyan deed of. gift-Services to be rendered-Services duly performed by donee-Deed irrevocable.

Where a Kandyan deed of gift is given in consideration of services to be rendered in the future and the services are duly performed, the deed cannot be revoked.

APPEAL from a judgment of the Commissioner of Requests, Panwila.

H. W. Thambiah for the plaintiff, appellant.

Cyril E. S. Perera, for the defendant, respondent.

Cur. adv. vult.

June 12, 1944. HOWARD C.J.-

The plaintiff appeals from the decision of the Commissioner of requests dismissing her action asking for a declaration of title to certain land and damages. The defendant,. who is the plaintiff's daughter, pleaded that the land in question had been donated to her by deed PI dated December 28, 1924, by the plaintiff and that the latter had no right to revoke the gift which the plaintiff purported to do by deed P 2 dated July 18, 1941. The learned Commissioner held that a deed of gift like P 1 was revocable, that the defendant had rendered all assistance to her mother, the plaintiff, and that the plaintiff had no right to revoke the deed of gift. Such revocation was, therefore, of no effect.

P 1 recites that the donation to the defendant is made " with the intention of receiving assistance and necessary succour during the term of natural life in this world and in consideration of the love and affection I have and bear unto" the defendant. The habendum states that the donee, her heirs, executors, administrators and assigns, is to hold the said premises with all the donor's right, title and interest thereto free from dispute. It is conceded by Counsel for both parties that the amendment of the law effected by section 5 of the Kandyan Law Declaration and Amendment Ordinance (No. 39 of 1938) does not affect-the question that has to be decided in this case. I have, therefore, been referred to various decisions on the law as it stood prior to the enactment

of this amending Ordinance. In Gunadasa v. Appuhamy [1 36 N. L. R. 122.], Garvin S.P.J. held that, where a Kandyan deed of gift given in consideration of services to be rendered, in the future granted "all the right, title and interest of me the said donor in and to the premises for ever," the donor did not renounce the right of revocation by the use of the words " for ever ". In his judgment the learned Judge states that the purpose of the gift would seem to be to secure to the donor that she would be well cared for during what remained of her life and such deeds are always revocable under the Kandyan law unless they are expressly declared to be irrevocable or where the power of revocation is expressly renounced. He then went on to hold that the use of the words " for ever " cannot fairly be construed as containing language which imposes a limitation or a renunciation of the ordinary right o£ the donor. The language of the deed in Gunadasa v. Appuhamy ,(supra) is very similar to that employed in the present case. But the learned Judge did not deal specifically with the point as to whether, if the services are duly performed, the right to revoke inherent in such a deed is exercisable. The implication of the judgment is that such right is still exercisable. In fact it was so held by Wijeyewardene J. in Wijesinghe v. Mohotty and another [2 26 C. L. W. 48.] where services had been performed up to 'date and for twenty years. In spite of this the learned Judge held that the deed was revocable. Considerations of natural equity cannot be permitted to override Kandyan law on this subject. In doing so he referred to D. C, Kandy, No. 22,404 (Austin P 140)-in which case the Supreme Court held a deed to be revocable when the donor transferred a land to another in consideration of assistance to be rendered- even after such assistance had been rendered. It was he