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PARASATTY AMMAH el al. v. SETUPULLE.
D. C., Jaffna, 20,463.Donation inter vivos—How far a “ contract ”—When is it complete ?—Whether tradition is essential—Consideration—Donation to aconcubine—Inhonestaaffectio—Evidence of concubinage—
Tesavalamai of Tamils—Donation by husband of lands acquiredduring marriage.
It is only in a.very lax sense of the word “ contract ” that adonation can be called a contract at all.
Donations inter vivos are completed by tradition, or even withouttradition, when the donor’s intention to give and the donee’sintention to receive have been clearly expressed, in which case thedonee can compel tradition.
In donation there is no consideration in the legal sense of theword. A man makes a donation when he gives solely out ofliberality or munificence. A donation is not void because theliberality or munificence is exercised under the influence of “ dis-creditable affection,” e.g., a donation made out of affection for awhore.
The Roman Law prohibition against donations to wives did notextend to donations to concubines. However, a gift’ by a man to awoman to induce her to live in illicit intercourse with him or tocontinue to live in such intercourse, she being otherwise desirous tobreak it off, would be a contract ex turpi causa, and a judge wouldrefuse the support of the law to it.
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Whore the donor had said in the deed of gift that she (the donee)“ is now my concubine,” and the woman stated, “ He gave it to mebecause I was living with him in concubinage,”—
Held, that this was no proof other than that of a donation madeto a meretrix under the influence of an inhoneeta affectio, which is notprohibited by law.
By the Tamil customary law, a married man could underjnocircumstances give away more than half the lands acquired by himduring the marriage,.
TN this case the plaintiff alleged that the defendant had fabri-cated a donation deed in her favour, whereby the latehusband of the plaintiff purported to grant to the defendant certainlands to which she and her minor children were lawfully entitledunder the Tesavalamai of Jaffna. She prayed that the deed becancelled, and that she for herself and her minor children be declaredas the lawful owners of the said lands.
The defendant pleaded that the deed of gift was a genuine one ;that plaintiff’s late husband being the lawful owner of the landsby right of purchase in his own favour had the right to gift it tothe defendant; and that she was duly put in possession, but waswrongly ousted by the plaintiff.
In her replication the plaintiff averred that, even if her husbandhad bought the land in his own name, he could not donate thewhole of it according to the Tesavalamai, and that thereforedefendant’s claim to the whole land was bad in law; and thatdefendant never possessed the land.
On the trial day a new issue was raised by plaintiff’s counselthat as on the very face of the deed the consideration for it appearedto be concubinage between, defendant and the plaintiff’s latehusband, it was invalid.
The District Judge held the donation to be legal, and enteredjudgment for plaintiff.
Dias, for appellant.
Cur. adv. wit.
19th November, 1872. The judgment of the Supreme Courtwas delivered as follows by Creasy, C.J.:—
The decree of the Court below should be set aside and judg-ment entered for the plaintiff for half the lands in question,inasmuch as by the Tamil customary law the donor could onlydispose of half this property; but judgment is to be entered forthe defendant for the other half of the lands, and the deed isdeclared valid so far as regards half the laads.
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This case has been erroneously treated in the Court below as acase of contract on account of concubinage, and the peculiarprinciples of Roman Law as to donations have been lost sight of.It is only in a very lax sense of the word “ contract ” that adonation can be called a contract at all (see Voet ad Pandectas,XXXIX., section 2). Donations inter vivos are complete whenthere has been tradition to a willing transferree made with thedesign of passing the property, or when even without tradition thedonor’s intention to give and the donee’s intention to receive havebeen clearly expressed. In the last-mentioned case; the donee cancompel tradition. See Poste’s Gains, p. 168, and the passage fromGains cited in the Digest, XLI., 1, 3, and see Poste’s Gains, p. 335,and the passage in the Institvtes, II., 7, 2, commented on byMr. Poste. In a true case of donation, there is no considerationin the legal sense of the word. A man makes a donation when hegives solely out of liberality or munificence when “propternuUam aliam cansam facit quarn ut liberalitatem et munificentiamexerceat; haec proprie donatio appellatnr ” (Digest, lib. XXXIX.,tit. 5, section 1). There is the same conclusive authority to showthat a donation is not void because the donor exercised his liberalityand munificence under the influence of affection, whether of credit-able affection or of discreditable affection. Indeed, the Romanjurist specifies this very case of a donation made out of affectionfor a whore, and declares that such donations are not illegal:
Ajfectionis gratia neque honestce, neque inhonestae donationes sunt,prohibitce; honestce erga bene merentes amicos vel necessariesinhonestce circa meretrices ” (Digest, XXXIX., tit. 5, section 5).There are also numerous authorities to be found in the Digest andits Commentators that the Roman Law prohibition againstdonations to wives did not extend to donations to concubines (seeDigest, VIII., tit. 5, section 31; Voet ad Digest, XXIV., tit. 1,section 15).
Unquestionably it is within the province of a judge in cases ofthis kind to inquire into the true nature of the transaction; andif it is clearly proved that the nominal gift was really made bythe man in order to induce the woman to come and live in illicitintercourse with him, or to continue to live in such intercourse,’she being otherwise desirous to break it off, it would be the dutyof the judge to pronounce it to be a contract ex turpi causa and torefuse the support of the law to it. But no such proof is givenhere. All that appears on the face of the deed is that the donorsays that she is “ now my concubine,” which is mere matter ofdescription. The parol evidence does not go further than thewoman’s statement: “ He gave it me because I was living withVol. III.I2(f>0)29
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1872.“ him in concubinage.” A dear case of a donation made to a mere-
November 19. tpjx un^er the influence of an inhoneata affectio, which is certainlyCbeasy, C.J. a kind of donation which the Roman Code declares not to beprohibited by law.
As the defendant claimed to retain twice as much as she wasentitled to, each side is to pay their own costs.
PARASATTY AMMAH et al v. SETUPULLE