as follows:-
If her statement that the Plaintiff-Appellant was seen withanother woman was a serious allegation made by her, the plaintfiled on 22.03.1983 in case No. 2007/D might have reflectedthe fact that the Plaintiff was of that type. No doubt the incidentof assault took place around 17.06.1983 whereas the Divorceplaint was filed on 22.03.1983. But if the Plaintiff-Appellantwas a person of loose morals that fact would have been reflectedin her plaint. In any event having filed a plaint for divorce againstthe Plaintiff in March 1983, the Defendant-Respondent couldnot have reacted so violently against the Plaintiff-Appellant evenif he was seen with another woman. In P3 (page 56 of the Brief)which was admittedly a letter sent by the Defendant-Respondent
V2, being the police statement allegedly made after assaultby the Defendant-Respondent, is not to be found in the caserecord nor is it included in the Brief. VI, V3 and V4 are available.
In any event at page 140, again she stated as follows:-

Calendar v. Wasanthi Fernando
(Wigneswaran, J.)
This letter showed that the Defendant-Respondent wascontemplating marriage with another person in November 1980whilst her marriage with the Plaintiff-Appellant was subsisting.It was only around 1982-83 that the marriage broke up. Shewas therefore not the type of person who could have beenexpected to act violently just because the Plaintiff was seen withanother woman after she had filed a divorce case against him.Her conduct in going to Dubai in defiance of the wishes of herhusband itself was an act which spoke much about hercharacter (Vide page 78 of the Brief). It is therefore more probablethat the Plaintiff-Appellant's explanation of what happened onthe date of assault is closer to the truth. At page 81 of the Briefhe said that he asked the Defendant-Respondent to return hiscousin sister's jewellery and that in return he would drop thiscase. This led to an argument and the Defendant-Respondenthit him with a sugar bottle and a saucepan. The act of assaultin any event cannot be disputed.
As for the Defendant's case whatever she said about thePlaintiff during her evidence were never put to the Plaintiff whenhe gave evidence. For example, the question of the Plaintiff seeingthe Defendant on the road and wanting to marry her, thereafterliving for 4 months with him, her conceiving without marriage,his promising to give her monies and property and herconsenting to marry thereafter were all matters that were notput to the Plaintiff. The cross examination of the Plaintiff wasnot on the basis of the defence taken up during the Defendant'sevidence.
It is in this background that issue No. 3 should have beenexamined by the Judge. That is, the act of assault having been

dated 15.11.1980 to her sister, she wrote as follows:-
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120011 2 Sri L.R.
admitted by the Defendant and her state of mind during therelevant time having been brought out by her conduct, thequestion arose whether her act constituted gross ingratitude.Instead of answering issue No. 3 the Judge states that thosewho witnessed the incident of assault were not called to giveevidence. The relevancy of standers-by being called to giveevidence when the Defendant herself had admitted the act ofassault is unclear. Confusion is further confounded when theJudge couples legal issue No. 7 with Issue No. 3 and fails toanswer both. He fails to answer issue No. 5 too.
In fact the Judge does not answer any issues except thePlaintiffs issues No. 1 and 2. This is a most unfortunatejudgment as stated earlier. We have no doubt that this poorspecimen of a judgment should not stand.
The next question is whether the issues could have beensatisfactorily answered on the evidence led.
According to the learned President's Counsel appearing forthe Defendant-Respondent the admission recorded was merelythe fact that the Defendant had maliciously deserted the Plaintiff.But in fact the scope of the admission was much wider. Theactual translation of admission No. 1 would read as follows:-"It is admitted that the Defendant deserted the Plaintiffcommitting the acts of ingratitude (sic) as stated in paragraphs7, 8, 10, 11. 12, 14, 15, 16 and 18."
Probably it meant the Defendant maliciously deserted thePlaintiff as set out in the paragraphs abovesaid. As stated earlier,paragraph 18 specially referred to the act of violence which wasthe basis of gross ingratitude on which this action was filed.Once that act was admitted both in the abovesaid admissionas well as in evidence the question was whether such an act onthe part of the Defendant constituted an act of gross ingratitudein terms of the law. The Counsel for the Defendant-Respondentsubmitted that the ground of gross ingratitude was abandoned.
If that be so issue No. 3 could not have read "If the answers toabove issues are in the affirmative is the Plaintiff entitled to have
Calendar v. Wasanthi Fernando
(Wigneswaran, J.)
the Deed of Gift No. 1169 set aside"? If in fact issue No. 4 onforfeiture of property by reason of the matrimonial decree wasthe only ground limited to, then the earlier issue No. 3 couldnot have asked for the setting aside of the deed of gift on thebasis of issues 1 and 2. Clearly the ground of gross ingratitudewas very much a basis of this case. There was no abandonmentof such a ground. The necessity to expatiate on the act of grossingratitude the Plaintiff depended upon did not arise since theact itself was admitted. Thus the sequence of issues were (i)Was a deed of gift executed? (ii) Was it based on love and affection?
If so, in view of the admission relating to an act of violencecommitted and the decree of divorce based on maliciousdesertion was the deed entitled to be set aside?
We may deal with this third issue at this stage. Theexamination of the third issue would necessitate an answer tolegal issue No. 7 too which dealt with the adequacy of the act ofviolence mentioned amounting to an act of gross ingratitude.
In Dona Podi Nona Ranaweera Menike vs. RohiniSenanayake (supra) it was held by the Supreme Court that adonor was entitled to revoke a donation on account ofingratitude-
if the donee lays manus impias (impious hands) on thedonor and/or.
if he does him an atrocious injury and/or.
if he willfully causes him great loss of property and/or.
if he makes an attempt on his life and/or.
if he does not fulfill the conditions attached to the gift and/or.
other equally grave causes.
It was also held that ingratitude was a form of mind whichhad to be inferred from the donee's conduct and such an attitudeof mind will be indicated either by a single act or a series ofacts.
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12001] 2 Sri L.R.
Chief Justice Basnayake stated in Krishnasamy vs.Thilaiampalan(3> at 269 as follows:-
"There is nothing in the books which lays down the rulethat a revocation may not be granted on the commission of asingle act of ingratitude."
In the background of the Defendant-Respondent leavingfor Dubai much against the wish of the Plaintiff-Appellant, herconsidering another marriage when her first marriage was stillsubsisting, her removing articles belonging to the Plaintiff-Appellant (this fact being corroborated by witness Agalawatte)when the Plaintiff-Appellant was not at home, her failure to referto plausible grounds for divorce in her plaint and divorce itselfbeing granted on the evidence of the Plaintiff-Appellant on theground of malicious desertion by the Defendant-Respondent,the assault on the Plaintiff-Appellant after the divorce actionhad already been filed by the Defendant-Respondent – there isno doubt that the Defendant-Respondent laid impious handson the Plaintiff and wilfully caused the Plaintiff-Appellant greatloss of property both of which are acts of gross ingratitude. Theact of hitting a man 54 years’ old and 21 years older than herselfwith a sugar filled bottle and saucepan could even be consideredas an attempt on the life of the Plaintiff-Appellant thoughsufficient evidence in this regard was not furnished. The Judgetherefore had ample grounds to hold that an act of ingratitudehad been committed by the Defendant-Respondent. With thenecessary intention to cause him harm established coupled withthe decree of divorce based on malicious desertion granted infavour of the Plaintiff-Appellant D.C. Mt. Lavinia case No. 2007/D issue No. 3 should have been answered in the affirmative.(Vide Mulligan vs. Mulligan<4) at 182].
Issue No. 4 based on the matrimonial decree entered inD.C. Mt. Lavinia Case No. 2007/D was only an additional groundfor setting aside deed No. 1169. In view of the adequate materialin the form of admissions and evidence to answer issue No. 3 inthe affirmative, the necessity to answer Issue No. 4 would notarise.
Calendar v. Wasanthi Fernando
(Wigneswaran, J.)
As for issue No. 5 there was the evidence of the Plaintiffcorroborated by witness Agalawatte that all goods mentionedin the 2nd and 3rd schedules to the plaint were removed by theDefendant on 09.09.1982. (Vide pages 80 and 107 of the Brief).P4 and P7 confirm such evidence. Thus issue No. 5 could havebeen answered in favour of the Plaintiff-Appellant in theaffirmative.
As for issue 6(a) there is evidence that the Divorce case wasdecided inter partes. Attorneys-at-Law had appeared on behalfof the Plaintiff and Defendant and parties themselves werepresent in Court when trial was concluded on 09.05.1986. (VideP5c). Similar evidence given by the Defendant in that case couldhave been given by the Plaintiff in that case too if both wereinterested in a divorce, particularly because it was she who hadfiled the case. But we have to presume that the Defendant inthat case (the Plaintiff-Appellant in this case) was not preparedto take any liability for the break down of the marriage andhence gave evidence himself. The fact that both had prayed fordivorce and the Plaintiff was interested in going abroad in ahurry meant nothing. She could herself have given uncontestedevidence and gone abroad. It is to be presumed that she couldnot do so because she was the guilty spouse and the innocentspouse was not prepared to give in. The Plaintiff in that casegoing to Dubai in January 1979 and on subsequent occasiontoo was objected to by the Defendant in that case. Yet she went.
On 09.09.1982 the Plaintiff in that case had left thematrimonial residence. Since all efforts to reconcile had failed,her act was construed as malicious desertion. The fact that themarriage failed because of the conduct of the Defendant-Respondent in this case was confirmed when as admission wasentered accepting a number of paragraphs in the plaint filed inthis case including paragraph 18 which dealt with the assault.Thus the answers to issues 6(a) and 6(b) would be "not proved."As for the benefit the decree in the Divorce case had in thiscase, [issue 6(c)] it was relevant only if Issue No. 4 was to beconsidered in earnest. Since the answer to issue No. 3 had
Sri Lanka Law Reports
[2001] 2 Sri L.R.
already been held In favour of the Plaintiff-Appellant the answerto issue 6(c) would be "irrelevant."
There is no doubt that the legal issue No. 7 should havebeen answered in the affirmative in favour of the Plaintiff-Appellant since it is related to issue No. 3. Case law have alreadybeen referred to in this regard. Issue No. 8 would then have tobe answered in the negative.
Summarising our answers to the issues left unanswered bythe Judge, we give them below on the basis of the evidence led:-
Does not arise.
(a) Not proved
Does not arise
We therefore allow the appeal and set aside the judgmentdated 11.07.1989 delivered by the Additional District Judge,Mt. Lavinia (erroneously referring to himself as District Judge,Negombo at the end of the judgment) and instead enter judgmentas prayed for setting aside Deed of Gift No. 1169 dated26.05.1978 attested by Brahmanage Elmo St. Ivor Perera,Notary Public, Colombo. The Defendant-Respondent shall paythe incurred costs of litigation both in the Original Court andthe Court of Appeal. Enter decree accordingly.
Appeal allowed.