Stella Perera and Others v. Margret Silva
STELLA PERERA AND OTHERS
SUPREME COURTAMERASINGHE, J.,
WADUGODAPITIYA, J. ANDBANDARANAYAKE, JSC APPEAL NO. 166/97CA APPEAL NO. 280/91FDC NEGOMBO NO. 339/LNOVEMBER 01, 2001
Vindicatory suit – Right of spouse to occupy the marital home owned bythe other spouse – Revocation of deed of gift for ingratitude – Prescription -Death of defendant – Survival of claim – Litis contestatio.
The 1st defendant (since deceased and substituted by the 2nd defendant) wasthe plaintiff’s husband. The 1st defendant who was the original owner of the maritalhome (the premises in suit) gifted it to the plaintiff by deed No. 216 dated
05. 1963 (P3). Thereafter, they continued to live there during which periodthe 1st defendant also effected substantive extensions and improvements tothe premises, at his own expense.
The 2nd defendant is the legally adopted daughter of the plaintiff and the 1stdefendant; the 3rd defendant is the husband of the 2nd defendant whose marriagehad the blessings of the 1st defendant. The 2nd defendant had refused to marrythe plaintiff’s nephew one Milton de Silva. In 1979 there was unpleasantnessbetween the plaintiff and the 1st defendant on account of that marriage. Con-sequently, the 2nd and the 3rd defendants moved to a house opposite the premisesin suit. About January, 1982, the plaintiff left the matrimonial home and residedelsewhere; and by deed No. 930 dated 30. 01. 1982 the plaintiff gifted the premisesin suit to her two nephews one of whom was Milton de Silva. Later, by deedNo. 163 dated 01. 08. 1984, the plaintiff obtained a retransfer of the premisesand proceeded to file an action in the District Court of Negombo for a declarationof title in her favour and for the eviction of the 1st defendant, her husband andthe 2nd and 3rd defendants. By that time the 2nd and 3rd defendants had movedback to the premises in suit to look after the 1st defendant who had becomeparalysed.
Sri Lanka Law Reports
 1 Sri LR.
The Deed of Gift No. 216 dated 02. 05. 1963 (P3) made by the 1stdefendant in favour of the plaintiff is liable to revocation on the groundof ingratitude; the District Court was right to have ordered the revocationthereof.
The relief sought in respect of deed P3 was not prescribed undersection 3 of the Prescription Ordinance on the ground that the actionwas filed more than 10 years after the execution of that deed.
Per Amerasinghe, J.
… adverse possession – if that were possible at all between spouses inrelation to their marital home – could not have commenced till the completebreakdown of the relationship between the plaintiff and the 1st defendant andthat took place only in 1982.”
Consequent upon the revocation of deed P3, the gift made by the plaintiffto her nephews by deed No. 930 is null and void.
The husband who is the owner of the property occupied by the couplehas no right, while the marriage is in existence, to eject the wife fromit without providing, alternative accommodation. Similarly, the wife has noright to eject her husband from the marital home merely because theproperty belongs to her.
The 1st defendant died pending the appeal in the Court of Appeal. Thestage of ritis contestatio had been reached. Hence, the 1st defendant’saction did not die with him.
Cases referred to :
Dona Podi Nona Ranaweera Menike v. Rohini Senanayake – (1992)
. 2 Sri LR 180.
Krishnaswamy v. Thillaiyampalam – (1957) 59 NLR 265.
Manuelpillai v. Nallamma – (1957) 52 NLR 221.
Barnes v. Trompowsky – (1797) 7 TR 265.
Badenhorst v. Badenhorst – (1964) 2 SA 676.
Buck v. Buck – (1974) 1 SA 609.
N. J. Canekeratne v. R. M. D. Canekeratne – (1968) 71 NLR 522.
Mrs. A. £ Alwis v. D. S. Kulatunga – (1970) 73 NLR 337.
Fernando v. Uvera – (1972) 29 NLR 246.
Dheerananda Thero v. Ratnasara Them – (1958) 60 NLR 7.
Krishnasamy Vengadasalam v. Adika Pundagan Karuppam – (1978) 79NLR 150.
Stella Perera and Others v. Margret Silva (Amerasinghe, J.)171
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera, PC with R. Y. D. Jayasekera for appellant.W. Dayaratne with R. Jayawardena for respondent.
Cur. adv. vult.
November 09, 2001AMERASINGHE, J.
Dewadura Margret Silva, hereinafter referred to as the plaintiff, was ithe wife of Lewisdura Jeramias Solomon, hereinafter referred to asthe first defendant. The plaintiff and first defendant had no childrenof their own and they adopted Lewisdura Maureen Stella Perera,hereinafter referred to as the second defendant, as their child underthe Adoption of Children Ordinance. Mirihana Aratchige Nihal PedrickPerera, the third defendant, is the husband of the second defendant.
The premises in suit, No. 124, Weliamuna Road, Hekitta, Wattala,was the matrimonial home of the plaintiff and the first defendant.After the marriage of the second and third defendants in 1978 they 10lived in the premises in suit until 1979 when they moved into a housesituated opposite the premises in suit. The plaintiff and the firstdefendant continued to live at the premises in suit until, following abreakdown of the relationship with her husband, the plaintiff left hermatrimonial home some time in January, 1982. There is uncertaintywith regard to the exact date. The plaintiff became a ‘sil matha’ andwent to reside in an ‘aramaya’. The first defendant became unwelland the second and third defendants moved back into the premisesin suit to look after the ailing first defendant who became paralysed.
The premises in suit belonged to the first defendant. Nine years 20after his marriage, the first defendant, by deed No. 216 dated 2 May,1963, gifted the premises to his wife, the plaintiff. The relationshipbetween the plaintiff and first defendant were cordial and the plaintiff
Sri Lanka Law Reports
 1 Sri L.R.
in her evidence did say that there was nothing wrong with the firstdefendant. Indeed not, for he was so a dutiful husband that he handedover all his earnings every month to his wife. The deterioration infamily relationships seems to have commenced when the seconddefendant, with the blessings of the first defendant, married the thirddefendant. The plaintiff was displeased that the second defendant hadrefused to marry the plaintiffs nephew, Benedict Milton de Silva. The 30second and third defendants moved out of the premises in suit in1979 after the unpleasantness reached a less than tolerable level.When the plaintiff decided to leave home, instead of transferring thepremises in suit to the second defendant, her adopted daughter, sheby deed No. 930 dated 30 January, 1982, gifted it to her two nephews,one of whom was Benedict Milton de Silva. Later, by deed No. 163dated 1st August, 1984, the plaintiff obtained a retransfer of thepremises and proceeded to file an action in the District Court ofNegombo for a declaration of title in her favour and for the evictionof her own husband, adopted daughter and the adopted daughter’s 40husband from the premises in suit.
The first defendant responded by seeking an order of revocationof the gift made by deed No. 216 dated 2 May, 1963, on the groundof ingratitude and a declaration that the gift made by the plaintiff toher nephews by deed No. 930 was null and void.
The learned District Judge, after hearing and duly weighing theevidence, in a principled and carefully reasoned judgment, made orderdismissing the plaintiff’s action and revoked deed No. 216 as prayedfor by the first defendant.
The Court of Appeal, however, set aside the orders of the learned 50District Judge.
There is no doubt that a gift could be revoked on the ground ofingratitude. Voet, Pandects, 39.5.23; Dona Podi Nona RanaweeraMenike v. Rohini Senanayakd"; Krishnaswamy v. Thillaiyampalard2>;Manuelpillai v. NallammaPK
Stella Perera and Others v. Margret Silva (Amerasinghe, J.)173
The learned Judge of the Court of Appeal, however, had difficultywith regard to the proof of ingratitude. He said:
“The 1st defendant being bedridden was unable to giveevidence. He being the person who would have offered the bestevidence on the acts of ingratitude on the part of the plaintiff has 60not applied to Court to have his evidence recorded on a commissionunder section 420 of the Civil Procedure Code. His daughter the2nd defendant has spoken of certain alleged acts of ingratitudeof the plaintiff which are insufficient for a Court to base an orderof revocation.”
The maxim that ‘the best evidence must be given of which thenature of the case permits’, was once regarded as expressing thegreat fundamental principle upon which the law of evidence depends.Today, however, the rule is of little practical importance, and indeedJ. D. Heydon and M. Ockeleton (Evidence – Laws and Materials 4th roed. 1996 p. 9) refer to it as an ‘evidentiary ghost’. Phipson on Evidence(15th ed. 2000 p. 127) succinctly states the current position: “In thepresent day, then, it is not true that the best evidence must, or evenmay, always be given, though its non-production may be a matterfor comment or affect the weight of that which is produced. Alladmissible evidence is generally equally accepted”. In the instant case,the daughter of the first defendant, who lived for a time under thesame roof as the first defendant and later a short distance acrossthe street, had personal knowledge of the facts she spoke to andthe learned District Judge unhesitatingly accepted her evidence, soAdmittedly, the provision of section 420 may have been availed of.However, there was, in the opinion of the District Judge, sufficientevidence of misconduct on the part of the plaintiff manifestingingratitude. It is a finding of fact that should not be interfered withon the basis that the first defendant’s evidence might have beenobtained by issuing a commission for the examination of the ailingfirst defendant since there was other cogent evidence to support thefinding. The old ‘best evidence’ rule in that regard had been relaxedas far back as 1797 when Lord Kenyon allowed proof of the
Sri Lanka Law Reports
 1 Sri L.R.
handwriting of the attesting witness resident abroad, instead of sending 90out a commission to examine him. Barnes v. Trompowsky<4>. In anyevent, how should one characterise the act of a wife who donatesher matrimonial home (gifted to her by her generous and caringhusband) to her nephews at the time when her husband lay grievouslyunwell in that home, and then herself attempts to have him ejectedafter obtaining a retransfer of the home when her nephews refuseto have the man ejected?
The learned Judge of the Court of Appeal had a second groundfor setting aside the order of the District Court. He said:
“In any event, this relief is sought ten years after the execution 1°oof deed P3 and is prescribed under section 3 of the PrescriptionOrdinance. Therefore, the judgment of the District Judge grantingthat relief to the 1st defendant is set aside, as it is clear the plaintiffhas possessed the property as her own and dealt with it as suchwithout recognizing the title thereto in any other."
This, with due respect, is untenable, for any adverse possession- if that were possible at all between spouses in relation to theirmatrimonial home – could not have commenced till the completebreakdown of the relationship between the plaintiff and the firstdefendant and that took place only in 1982. After making a gift of110the matrimonial home to the plaintiff in 1963, the first defendant notonly continued to live in that house but also effected substantialextensions and improvements to the premises at his own expense.
Finally, the learned Judge of the Court of Appeal said:
“The 1st defendant has died pending appeal. The learnedDistrict Judge has held that the plaintiff will not be entitled to recoverpossession or damages from the defendants as the 1st defendanthad a right to remain in occupation of the premises as the lawfulhusband of the plaintiff. Counsel conceded that the appeal fromthat finding of the District Judge is of academic interest now.” 120
Stella Perera and Others v. Margret Silva (Amerasinghe, J.)175
The learned District Judge, in my view, was quite right in refusingto eject the first defendant for, as a matter of law the right of occupationof the conjugal ‘nest’ did not depend on ownership. Where the husbandis the owner of the property occupied by the couple, he has no right,while the marriage is in existence, to eject his wife from it withoutproviding her with suitable alternative accommodation. Her occupationis not by licence of her husband but is sui generis. Similarly, the wifehas no right to eject her husband from the matrimonial home merelybecause the property belongs to her. Because he is her husband hehas rights flowing from the marriage which in relation to that property 130put him in a category differing toto coeli from that of a stranger. Allthis is subject to the forfeiture of the right in certain circumstances;but, forfeiture was not an issue in this case. H. R. Hahlo, The SouthAfrican Law of Husband and Wife, 5th ed. (1985) pp. 143-144;Bromley’s Family Law, 7th ed. p. 547 Badenhorst v. Badenhorst5);Buck v. Buck6] Cf. N. J. Canekeratne v. R. M. D. Canekeratnd7)
Mrs. A. E. Alwis v. D. S. Kulatunge1®. Admittedly, the 1st defendantdied pending the appeal in the Court of Appeal. However, by thattime he had a judgment in his favour in respect of his claim to havethe donation to his wife revoked and for possession. The stage of140litis contestatio having been reached, the first defendant’s action didnot die with him. The maxim actio personalis moritur cum personahad no application. Cf. Fernando v. Livera®; Dheerananda Thero v.Ratnasara Thero<10>; Krishnaswamy Vengadasalam v. Adika PundaganKaruppani1,).
For the reasons set out in my judgment, I set aside the judgmentof the Court of Appeal with costs and affirm the Order of the DistrictCourt.
WADUGODAPITIYA, J. – I agree.
BANDARANAYAKE, J. – I agree.
– STELLA PERERA AND OTHERS v. MARGRET SILVA