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Present : Wood Benton C.J. and De Sampayo A.J.1®14.
HAMINB v. GOONEWABDENE.
867—D. C. Negombo, 9,734.
Deed of gift—Revocation—Ingratitude—Son calling mother (donor)
" whore ”—Inconsistent pleas by way of defence.
Plaintiff, who had granted a donation to her son, sought in .thisaction to have the deed of donation revoked on the ground thatthe defendant had applied the term “ whore ” (“ huthi ”) ro her.
Held, that in the circumstances of the case there wap-no ground forthe revocation of the gift.
fJlHE facts appear from the judgment.
Baum, K.C. (with him De Zoysa), for plaintiff, appellant.
A. St. V. Jayewardene (with him Samarawickreme), for defendants,respondents.
October 9, 1914. Wood Benton C.J.—
the elaborate and able judgment of the learned District Judgerenders it unnecessary either to re-state the facts in this case, or toanalyse the evidence applicable to the main issue on which the
•1C. A.C. 9S.
• 3 Browne so.
Rbnton C. J.
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action went to trial, viz., whether the plaintiff-appellant wasinduced to sign the. deed sought to be revoked by the mis-representation and fraud of the defendants. The plaintiff’s counsel,,while he expressly reserved his right to contend, in the event of &further appeal, that the District Judge had wrongly answered thatquestion in the negative, sew that it would be difficult to invite usto reverse the decision of the..Court of trial on that point, being,,as it is, purely an issue -of fact, and limited his argument here totwo contentions: (i.) That the District Judge was in error in refusingto accept an alternative issue of undue influence at the trial, andthat the case should go back for the framing and determination,ofthat issue; (ii.) that there is, in the record as it stands, evidence ofsuch “ ingratitude,” within the meaning of Roman-Dutch law, onthe part of the defendants towards the plaintiff as to entitle thelatter to have the impugned deed revoked. I will deal briefly withthese points in turn. ~
(i.) I am not prepared to say that in law, whatever may be theeffect of the adoption of such a course as a matter of evidence, alitigant may not, under our Code of Civil Procedure, set up alter-native and inconsistent pleas. But I am clearly of opinion that itwould be hopeless now to send this case back for any further inquiry *on the subject of undue influence. The plaintiff’s case at the trialwas that she had .been tricked into the belief that the impugneddeed was not a deed of gift but a power of attorney. -Her positionmay be compendiously described in her own language:“ I agreed
to sign the deed of authority asked for. I was not forced to doso. I told no one one I was forced. 1 signed willingly, thinking it wasall right.”
What Court would believe her now if she were to come forward andsay that she knew the real nature of the deed quite well, but thatshe had been induced to sign it by undue influence ? I may addthat this is one of the cases in which the refusal of the Court of firstinstance to accept an issue, if it was not acquiesced in, might withadvantage have been made the subject of ap immediate interlocutoryappeal.
(ii.) The plaintiff’s case as to ingratitude cannot, in my opinion,be put higher than this on the evidence as I interpret it. The.dispositions of the impugned deed were in accordance with thegeneral intentions and wishes of the plaintiff’s deceased husband, theoriginal owner of th.e properties. She was endeavouring to inducethe defendants, who are her song, to re-convey to her the propertiesdonated. Rightly, as the learned District Judge has held, butwhether rightly or wrongly, at any rate honestly, the defendantsbelieved that, the plaintiff’s action in this matter was inspired byher—daughters, and they quarrelled with their mother on thataccount. It is alleged by the plaintiff that in the course of thisquarrel the infamous term ” huthi ” (whore) was applied by the
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second defendant to her. ^he learned District Judge holds that it 1914.was spoken " at rather than to *' the plaintiff. It is needless to saythat language of this description admits of no extenuation. But Rbntok c.J.there is some excuse for the defendants* irritation with their mother, **“7" ^
although none for .the mamier in which the second defendant gave Goone-expression to it. Apart altogether from the fact that they believed UH*r<*enethat under the undue influence of their sisters she was endeavouringto defeat their father's intentions in regard to them, the evidenceshows that she described them as 0 rogues, ” and roundly chargedthem with fraud. As the learned District Judge has pointed out,the whole quarrel between the plaintiff and her sorts centred in theimpugned deed. She was not, as she alleged in her petition (P 2)to the Police Magistrate, turned out of her house by her two sons,or prevented from removing her property.
Does such conduct on th.e part of the defendants, as is disclosedby the circumstances just stated, amount to ingratitude within themeaning of the Roman-Dutch law ? To this question there can,in my opinion, be but one answer,' and that is an answer in thenegative. " There are/* say Voet (39, 5, 22; see also Maasdorp,voL III., 101), five instances of ingratitude, which, if the doneeis guilty of them towards the donor, are considered just causes forrevocation or change of mind, notwithstanding that at the timeof the donation it may have been agreed by a pact, confirmedeven by oath, that the donation should not be revoked onaccount of ingratitude, since such an agreement is null and void,as being an incentive to misconduct, and invoking condonationof future crime. The causes are these: If the donee should layimpious hands upon the donpr, or outrageously defame him, orcause him enormous loss, or plot against his life, or, lastly, fail
to fulfil the conditions annexed to the donation ” Nor
does it seem “ to admit of doubt, that for other similar or
graver causes donations can be revoked ” Eesser causes
of ingratitude than the above are certainly not sufficient for revokinga donation, "for though both law and tight reason reprobate thestain and baseness of ingratitude, however slight, yet they do not onthat account sanction its being penalized forthwith by revocation ofthe donation. The truth is that legislators ignore the smaller faultswhich they cannot amend, well knowing that, if every case of evenslight ingratitude were to be visited with the severity of thelaw, all the courts and tribunals would not suffice for the numberof actions likely to be brought against ingrates. ”
It is obvious that there is no analogy between the class of casescontemplated by Yoet and the circumstances with which we havehere to deal. The case of Samoni v. Foenander 1 is clearly distin-guishable from the present case. In Samoni v. Foenander, 1 not only
2 (1872) Vanderstroaten 144 ; (1876-78) Ram. 82.
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1914.w&b the abuse both atrocious and systematic, but the facts brought
^the case within one of the express grounds of revocation, recognized
jfrngwwr C.J. by the Boman-Dutch law, namely, failure on'the part of the donee——to fulfil one of the conditions of the donation.
I would dismiss the appeal with costs.
De Sampayo A.J.—1 entirely agree.
HAMINE v. GOONEWARDENE