JayetUalea J.—Ounowordene v. Baby Nona.
1946Present: Jayetileke and Rose JJ.SINNAMMAH, Appellant, and NALLANATHAR, Respondent.
221—D. C. Jaffna, 1,850.
Donation-—Gift by -wife in favour of husband—Action for revocation—Grossingratitude—Roman -Dutch law.
Under the Roman-Dutch law a donation inter vivos may be revokedif the donee assaults the donor, although the latter may have agreednot to revoke it.
35 N. L. R.p. 323.
SinnammaJi v. Nattanathar.
HIS was an action brought by Hie plaintiff to revoke a deed of giftmade in favour of her husband on the ground of gross ingratitude.
The learned District Judge held that the defendant had assaulted theplaintiff and gave judgment for her.
N.Nadarajah, K.C. (with him H. W. Jayewardene and S. Sivasubra-maniam), for the defendant, appellant.—The plaintiff seeks to have adeed of donation executed by her in 1932 in favour of her husband, thedefendant, revoked on the ground of ingratitude and cruelty. In August,1942, the plaintiff left her husband and later instituted maintenanceaction. Her allegation, in that case, of cruelty was, however, rejectedby Court. The dismissal of the maintenance case would operate asres judicata in the present case—Jainambo v. Izzadeen1; Bankiri Kiri v.Hattenaa; Ounahami v. Amolis Homy *. The finding as regardsingratitude is based on the finding of cruelty.
The donation is expressly and on the face of the deed stated to beirrevocable. Such a deed cannot be revoked on any ground—UkhuBanda v. Paulis Singho 1 * * 4 ; Sahul Hamid v. Mohideen Nachiya 4 ; Razeekav. Settuck8 ; Ounerathamy v. Manuel Appuhamy 7 ; Voet 39.5.31. TheRoman-Dutch law prohibits gifts between husband and wife—Weasels’Law of Contract, Vol. I., pp. 255, 408. It is only by the Jaffna Matri-monial Bights and Inheritance Ordinance (Cap. 48), s. 9 that the gift inquestion was made possible. The rule, therefore, of Roman-Dutch lawthat a gift can be revoked on the ground of ingratitude is not applicablein this case. Even if it is applicable ingratitude, at large, is not a groundof revocation. The grounds of revocation of a gift are limited—Sivarasi-piUai v. AnthonypiUai 8.
A. Rajapakse, K.C. (with him H. W. Tambiah), for the plaintiff,respondent.—A gift can be revoked for ingratitude even though thedonor expressly agreed that it should be irrevocable—Maasdorp’sInstitutes of S. African Law (4th ed.) Vol. 3, p. 115. All that section 9 ofCap. 48 does is to remove a bar imposed by the Roman-Dutch law ongifts between husband and wife. But there is no enactment which saysthat the common law does not apply to such gifts. Even in Roman-Dutch law the prohibition of gifts between husband and wife is notabsolute—Lee's Introduction to Roman Dutch Law (3rd ed.) 92—93 ;296-297; Walter Pereira’s Laws of Ceylon pp. 610, 611. The grounds ofrevocation enumerated in SivarasipiUai v. AnthonypiUai (supra.) are notexhaustive. See Van Leeuwen’s Commentaries, Vol. 2, p. 235 (2nd ed.).
The dismissal of the maintenance aotion cannot operate as res judicata.The cause of action in the maintenance case was quite different from thecause of action in the present case.
1 (1938) 10 C. L. W. 138.
(1891) 1 C. L. Rep. 86.
(1896) 3 XT. L. R. 128.
4 (1925) 27 XT. L. R. 449.
8 (1932) 34 XT. L. R. 57 at 68.4 (1031) 33 N. L. R. 176.
’ (1927) 28 N. L. R. 329.
4 (1937) 40 N. L. R. 47.
JAYETELEKE J.—Sinnammah v. NaUanathar.
N. Nadarajah, K.C., in reply cited Voet 39 (Krause’s translation, pp.50, 105, 106) and Halsbury’s Laws of England, Vol. 16, para. 1055(Hailsham cd.).
Cur. adv. wit.
February 7, 1946. Jayetileke J.—
This is an action for the revocation of a deed of gift bearing No. 12396,dated November 16, 1932. (P 3), executed by the plaintiff in favour of herhusband, the defendant, on the ground of gross ingratitude. The partieswere married in the year 1923. The plaintiff alleged that in the year1942 the defendant opened a tea boutique and employed a woman calledEliyapillai to assist him. The defendant became intimate with thatwoman and took her from the boutique to his house. The plaintiffobjected to Eliyapillai being brought to her house whereupon thedefendant entered upon a course of conduct which amounted to cruelty.On one occasion he assaulted her and fractured her arm. The plaintiffwas miserable thereafter, and she separated in July, 1942. The defendantdenied the allegations made by the plaintiff, and disputed the plaintiff’sright to revoke the deed. After a very careful review of the facts thetrial Judge arrived at the following conclusions :—
' (1) That the defendant had assaulted the plaintiff.
That the defendant had kept Eliyapillai as his mistress.
Having come to these conclusions the trial Judge considered himselfbound by the authority of a judgment of this Court in Savarasipittai v.Anthonipillai1 to hold that the first finding was fatal to the defence.In so holding we are of opinion that he was clearly right.. In the Roman-Hutch law there is the most ample authority that a donation can berevoked if the donee assaults the donor (Voet 39.5.22, Krause’s Transla-tion, page 50; Grotius 3.2.17, Herbert’s Translation page, 286; VanLeeuwen 30.4.7, Kotze’s Translation, page 235; 2 Burge, page 146.)
Mr. Nadarajah contended that plaintiff cannot maintain this actionas on the face of it P 3 is irrevocable. The habendum clause is expressedin the following terms :—
“ I, Sinnamah, wife of Nallanathar of Thinnalai South for and inconsideration of the natural love and affection I have towards myhusband Vallipuranathar, of the same place, do hereby give, grant andconvey by way of irrevocable donation the property described hereinbelow in the schedule unto him subject to my life interest ”.
He based his argument upon two cases, Ukku Banda v. Paulis Singho*and Bazeeka v. Mohamed SaiheeJcr1- In those cases it was held that wherea deed of donation contains an express recital that it is irrevocable the
* * C. L. W. 121.
*27 N. L. R. 449.
•33 N. L. R. 176.
JAYETILEKE J.—Sinnammah v. Nallanalhar.
donor must be taken to have renounced the right to revoke it. Therecan be no question that the principle of those decisions still remainsgood but, in my view, they are not relevant to the present case. It mustbe remembered that under the Kandyan law and Mohamedan law thegeneral rule is that the power of revocation is inherent in the donor ofevery gift. The gift may be revoked by the donor himself by the execu-tion of another deed. By a renunciation clause or by making the giftirrevocable the donor merely gives up the right to resume the propertyat any time voluntarily. Under the Roman-Dutch law, however, adonation once made is valid and irrevocable but it may be cancelledby decree of court under exceptional circumstances. The Dutch writersmention among the grounds of revoking donations the case of the doneeattempting the donor’s life, striking him, attempting to ruin him,maliciously slandering or otherwise injuring the donor. The donationby the plaintiff to the defendant being irrevocable according to law,I do not think that there is any particular magic in the word ** irrevocable ”in P 3. There is, however, very clear authority which concludes thequestion. According to Voet1 a donation inter vivos call be revokedeven though the donor may have expressly agreed not to revoke it on theground of ingratitude. Such an agreement is null and void as beingcontra bonos mores.
The section reads—
“ Although a donation inter vivos cannot be revoked at pleasure noteven by the rescript of the Sovereign, nor even if the donor alleges thathe made the donation in fraud of another person, yet there are fiveinstances of ingratitude, which, if the donee is guilty of them towardsthe donor, are considered just causes for revocation or change of mind,notwithstanding that at the time of the donation it may have beenagreed by a pact confirmed even by oath, that the donation cannotbe revoked on account of ingratitude, since such -an agreement is nulland void as being an incentive to misconduct and involving acondonation of future crime .”
The opinion of Voet seems to be based on the following passage in theDigest (2.14.27. s 4) :
“ An agreement not to institute an action for an injury to becommitted by another is invalid ”.
I do not think it is necessary to deal with the second limb of Mr. Nada-rajah’s argument that the order made on the plaintiff’s application formaintenance against the defendant in action No. 1,760 of the Magistrate’sCourt of Point Pedro is a bar to the present action. The proceedingsshow that the question at issue between the parties in that action waswhether the defendant was living in adultry with Eliyapillai at the time
139.5.22 Sampayo'a Translation page 24.
John Appuhamjf v. David.
of the application. The trial Judge has, in my opinion, come to a correctconclusion both on the facts and on the law. I would, accordingly,dismiss the appeal with costs.
Bose J.— I agree.
SINNAMMAH, Appellant, and NALLANATHAR , Respondent