Those who gift land now may regret much later | Daily News

Those who gift land now may regret much later

A niece had been gifted a piece of land by a relative, an uncle of the donee. However, the relative (uncle) had second thoughts and went to court later with regard to the land he gifted the niece, his position being he never gifted the land but had been robbed of it by the husband of the donee concerned – who had agreed to help with securing him compensation for a piece of land that had earlier been vested in the State – and in the process obtained his signature fraudulently to an alleged deed of gift.

This is how the Court of Appeal recorded the circumstances of the original District Court case:

“The plaintiff-respondent instituted action against the 1st to 3rd defendant-appellants seeking a declaration that deed of Gift No. 167 is a fraudulent deed which does not convey any right or title to the 1st defendant and the same is void and has no force or effect in law and to eject the defendants from the premises described in the schedule to the plaint and recover damages. The plaint further sought injunctive relief preventing the defendants from building thereon.” (Case reference: Namalee and others vs. Jinoris 2 SLR 93 of 2006.).

The defendants – for purposes of clarity – were the niece (1st defendant), her husband, and mother.

The plaintiff wanted the deed of gift cancelled.

The Court of Appeal first determined that the District Judge had misdirected himself on the location of the land, which by itself rendered his judgement faulty. This establishes that in case of this nature, the corpus of the land in dispute has to be properly identified. The Court of Appeal Judgement held in this regard:

“On a perusal of evidence on record and the Judgement, it is apparent that the learned District Judge has proceeded on the basis that the land in suit abuts Galle-Colombo Main Road and lost sight of the fact that the land in suit is situated at Kesbewa and misdirected himself on the primary fact of location of the land which vitiated the judgement impugned.”

The Court of Appeal cited a similar case, Ranchagoda vs. Viola where the Supreme Court held: “The District Judge had failed to appreciate that according to the plaintiff lots 1 and 2 which formed the subject matter of the action were not paddy lands. This was a serious misdirection on the primary facts which vitiate the judgement of the District Court.”

The Court of Appeal judges were of the opinion that the District Judge had made too many assumptions. The District Judge had stated that the plaintiff-respondent had no reason to gift the property without reserving life interest or without any monetary consideration being paid. However there was another deed V2 on which there was a signature, which the plaintiff admitted was “like his own.” The judges said no explanation was offered as to how such a document, which was also a similar deed of gift without life interest – as was the deed being contested – came into existence.

The Court of Appeal Judges held further: “On the other hand, the learned Judge without any supporting evidence concludes that the plaintiff-respondent who gifted land on deed No. 159 within three months has no reason to gift the land in suit on deed No. 167. The gift of deed No. 159 is without reservation of any life interest and the plaintiff-respondent who clearly admitted having executed deed No. 159 had every reason to make such gift not only to his niece, the 1st defendant-respondent, but also in favour of the 2nd defendant-appellant (the niece’s husband) as well, has escaped the attention, consideration and evaluation on the part of the learned Judge. His conclusion therefore is irrational and lacks any legal or reasonable basis.”

The Court therefore held that the findings of the learned trial judge are not supported by evidence, nor are they rational or lawful. The DC judgement of 2003 was set aside and vacated and the plaintiff-respondent’s action was dismissed with costs, and appeal was allowed with costs. It is seen from the case record that donors who make gifts of land cannot make arbitrary decisions or claims in order to have them back, because such gifts are generally considered irrevocable, except under special circumstances.

In many other cases that involved deeds of gift, it has been contended that the gift of land has not been accepted. This usually happens when the donor has second thoughts about the land conveyed as a gift, but has no other legal recourse to get it back! Invariably the fallback option has been to claim that the deed of gift has never been accepted.

In one such case, the plaintiff contended that the donee did not sign the deed of gift, to indicate acceptance.

Resolving such an issue, in Rajapaksa Mudiyanselage Somawathie vs. HNB Wilmon (2009) the Supreme Court held: “Considering the totality of the circumstances in this appeal, it is abundantly clear that at the time of the execution of the deed of gift, it was clearly stated in the said deed that the gift was accepted by the mother of the donees on behalf of the donees and she had also signed the said deed of gift. Moreover, the donees had possessed and had enjoyed the land in question for more than 30 years. Considering the dicta enumerated in Senanayake vs Dissanayake and Nagalingam vs Thanabalasingham the aforementioned facts clearly show that they are sufficient indications that the donees had accepted the deed of gift.”

Even if the donees themselves had not signed, if somebody signed on their behalf, the gift was deemed as being duly accepted.