CALENDAR v. FERNANDO

032-SLLR-SLLR-2001-V-2-CALENDAR-v.-FERNANDO.pdf


CALENDAR
v.
FERNANDO
COURT OF APPEALWIGNESWARAN, J.
TILAKAWARDENA,
A. 283/89(F)-
C. MT. LAVINIA 345/SPLMARCH 16, 1999
JUNE 29, 1999OCTOBER 4, 1999
Divorce – Deed of Gift – Husband and wife – setting aside the Deed ofGift – Assault on Donor – Gross ingratitude – Issues in a Civil case -Duty of court to raise issues – Res Judicata.
In 1978 certain properties were gifted by the Plain tiff Appellant (Husband)to the Defendant Respondent (wife). In 1983 action was filed by the husbandseeking divorce and divorce was granted on the ground of maliciousdesertion on the part of the wife. In 1984 action was filed to set aside theDeed of Gift on grounds of gross ingratitude. The District Court dismissedthe Plaintiff’s action.
On Appeal:
Held :
The Plaint in the present case was filed on 2.1.1984 nearly an yearafter institution of the divorce action and four days before the answerwas filed in the divorce action. Nothing in law barred, the Plaintifffrom filing such an action.
The failure to seek relief to enforce forfeiture in the Divorce Actioncannot therefore be held to have operated as Res Judicata againsthim. The Defendant has reserved his rights to enforce forfeitureseparately when he filed his answer. This is in accordance with thelaw and there was no question of Res Judicata affecting his rights.
Wigneswaran J.,
“It was the duty of the Judge in the first instance to have raised theissues. According to practice Counsel on both sides were allowed toraise issues, but the moment objections were raised it was incuibent
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on the part of the Judge to have made a proper order either acceptingthe issues or rejecting the issue or suggesting a fresh issue. The trialJudge had very coveniently laid liability on the Plaintiff that the Plaintiffthat the Plaintiff had failed to call upon the Court to make an orderwith regard to the acceptance/rejection of the issue. The framing ofissues is the duty of Court.
Donor was entitled to revoke a donation on account of ingratitude,ingratitude is a form of mind which had to be inferred from thedonees conduct and such an attitude of mind will be indicated eitherby a single act or a series of acts.
There is no rule that a revocation may not be granted on thecommission of a single act of ingratitude.
Appeal from the Judgment of the District Court of Mt. Lavinia.
Cases referred to :
Dona Padinona Ranaweera Menike vs. Rohini Senanayake -1992 – 2SLR 180.
Fernando vs. Fernando – 63 NLR 416.
Krishnasamy vs. Thiiaimpalan – 59 NLR 265 at 269.
Mulligan vs. Mulligan – 11 – 1925 WLD 178 at 182.
Gamini Marapana PC., with Sanath Abeyratne for Plaintiff Appellant.
Faiz Musthapha EC., with Gastan Jayakody for Defendant Respondent.
Cur. adv. vult.
January 24, 2000WIGNESWARAN, J.
The Plaintiff-Appellant, an Eurasian, married theDefendant-Respondent, a Sinhalese, on 07.06.1974. He was45 years of age while the Defendant-Respondent was 24 yearsof age marriage. Subsequent to the marriage on 26.05.1978,deed of gift No. 1169 attested by B. Elmo St. Ivor Perera, NotaryPublic, Colombo was executed wherein the property mentionedin the second schedule to the said deed with rights of way overthe lands mentioned in the third and fourth schedules to thesaid deed were donated by the Plaintiff-Appellant in
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consideration of the natural love and affection he had for theDefendant-Respondent, his wife. There were no issues by thismarriage.
D.C. Mt. Lavinia Case No. 2007/D was filed on 22.03.1983by the Defendant-Respondent seeking divorce against thePlaintiff-Appellant. Divorce was granted not on the groundsenumerated in the plaint by the Defendant-Respondent but onthe ground of her malicious desertion as referred to in theevidence of the FSteintiff-Appellant. Decree nisi was entered on09.05.1986 which was made absolute thereafter.
Meanwhile on 02.01.1984 this action was filed by thePlaintiff-Appellant to set aside deed No. 1169 abovesaid. Bythe time this case came up for trial on 25.03.1987 divorce hadbeen granted.
Inter alia the admissions recorded in this case related tothe Defendant-Respondent admitting that she did maliciouslydesert the Plaintiff-Appellant as set out in paragraphs 7, 8, 10,11, 12, 14, 15, 16 and 18 of the plaint Paragraph 18 of theplaint referred to the Defendant-Respondent assaulting thePlaintiff-Appellant (a person 20 years older than her and about54 years old at that time) on 17.07.1983 with a filled up bottleof sugar and a saucepan. Paragraph 19 (though not admitted)referred to the many facts enumerated earlier in the plaint(inclusive of paragraph 18) as the grounds of gross ingratitudeto set aside the deed of gift. Though the learned Counsel for thePlaintiff-Appellant referred to an amendment which insertedparagraph 17 in place of paragraph 18 in the said admissions,the proceedings of 25.03.1987 do not reflect such anamendment nor are there any proceeding dated 28.03.1987 asreferred to by the learned Counsel. The Counsel for theDefendant-Respondent in any event did not refer to any suchamendment on 28.03.1987. Thereafter issues were raised asfollows (translated):-
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Plaintiff's issuesWeis the properly referred to in the 2nd schedule to Deed ofGift No. 1169 dated 26.05.1978 attested by B.S. Perera,Notary Public, (sic) gifted by the Plaintiff to the Defendant ?
Was such a gift granted by the Plaintiff on account of thenatural love and affection for the Defendant ?
If the answer to the above issues are in the affirmative is thePlaintiff entitled to have the said deed of gift No. 1169 setaside ?
According to the decree entered in D.C. Mt. Lavinia CaseNo. 2007/D should the said deed of gift be set aside in lawand/or the Defendant made disentitled to it ?
Defendant’s issuesDid the Defendant remove any articles in the custody of thePlaintiff?
(a) Was D.C. Mt. Lavinia Case No. 2007/D uncontested ?
If so, has the Plaintiff not denied the contents of theplaint filed in that case ?
In any event do the grounds depended upon by the Plaintiffamount to gross ingratitude under the law ?
If the answer to Defendant’s issues are in his favour, wouldthe Defendant be entitled to the reliefs claimed in heranswer ?
After trial the Additional District Judge, Mt. Lavinia on11.07.1989 dismissed the Plaintiff’s action.
The learned President’s Counsel for the Plaintiff-Appellanthas placed the following submissions before us forconsideration:-
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The learned District Judge had failed to appreciate the factthat it is not necessary to raise issues on facts that areadmitted.
There had been no abandonment of the ground ofingratitude.
Issue No. 7 was a legal issue which should have beenanswered.
An assault on the donor by the donee would clearlyconstitute an act of gross ingratitude which would entitlethe donor to have a deed of gift revoked. (Inter alia thedecision in Dona Podlnona Ranaweera Menlke Vs. RohiniSenanayaken> referred to).
Issue 4 could not have been disallowed by Court at the stageof judgment having allowed it to stand from the stage offraming of issues.
The right to enforce forfeiture was not lost by not claimingsuch a right in the divorce proceedings. In any event such aright was reserved in paragraph 8 of the answer filed inD.C. Mt. Lavinia Case No. 2007/D.
The Counsel appearing for the Plaintiff-Appellantconsequently urged the setting aside of the judgment and decreeand the entry of a judgment in favour of the Plaintiff-Appellant.
In supporting the judgment the learned President’s Counselappearing for the Defendant-Respondent argued that the Plaintiffhad quite clearly abandoned the action based on the ground ofgross ingratitude and had confined himself to a forfeiture ofproperty based on the matrimonial decree of divorce. He pointedout that the decree of divorce acted as Res Judicata in respectof this remedy. In any event, he said, since the District Judgehad reserved the right to the Plaintiff to agitate this issue in afresh action, this Court should not interfere with the judgment.
These submissions would presently be examined.
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The judgment dated 11.07.1989 of the Additional DistrictJudge, Mt. Lavinia was most unfortunate. The fact that theJudge, who by that time probably had become District Judge,Negombo, went on to sign the judgment as “District Judge,Negombo” instead of “Additional District Judge, Mt. Lavinia"shows crass indifference on his part which is perceivable evenduring the course of the trial as well as in his judgment.
Framing of issues in a civil case is the duty of Court. [VideSection 146(2) of the Civil Procedure Code]. It is the issues thatdetermine the scope and content of a tral. If a Court does notgive its fullest attention to the issues framed, all the evidenceled laboriously for days and days could become useless orirrelevant. Yet again, if proper issues are not framed, partiescould fail to lead evidence necessary for their case since theymay presume that the Court is satisfied with regard to certainmatters which otherwise would have to be supported byevidence.
In this case on 25.03.1987 issue No. 4 above referred to,was raised by the Counsel for the Plaintiff-Appellant. It relatedto the effect of the judgment and decree entered in D.C. Mt.Lavinia Case No. 2007ID between the same parties to this casein reference to the matter in issue in this case. Issue No. 4 wasobjected to. The order made by Court on this matter was thatthe issue was allowed subject to the condition that if an orderbecomes necessary in respect of the objections raised, the Courtwould later decide upon it. Thus it is to be noted that accordingto the order made the reasons for allowing the issue despite theobjections were to be given later if necessary. The order did notcontemplate disallowing the issue. The Court in any event didnot deal with the objections thereafter except in the judgment.
It is curious to note that the basis on which issue No. 4 hadbeen finally rejected in the judgment at page 180 of the briefwas the same ground recorded in the proceedings at the time ofthe raising of issues at pages 72 and 73 of the brief, despitewhich ground the Judge allowed the raising of that issue. Thereason given was that the matter had not been referred to in thepleadings. In fact the learned Counsel for the Defendant in the
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said case had stated to Court that if a matter unreferred to inthe pleadings were to be raised in issue, the Plaintiif shouldamend his pleadings (Vide page 73). Otherwise, he said,prejudice would be caused to the Defendant. The conduct ofthe Judge in this instance seems to have caused prejudice tothe Plaintiff ultimately, in that the Plaintiff had no opportunityof amending his pleadings nor of organising his case on thebasis that issue No. 4 had been rejected. It was the duty of theJudge in the first instance to have raised the issues. Neverthelessaccording to prggtise Counsel on both sides were allowed toraise the issues 4fn this instance. But the moment objectionswere raised it was incumbent on the part of the Judge to havemade a proper order either accepting the issue or rejecting theissue or suggesting a fresh issue. In fact the order seems to givethe impression that a considered determination had been madein favour of accepting the issue but that the reasons for hisdetermination in favour of the Plaintiff-Appellant would be givenlater if necessary. But in fact what happened was that the Judgevery conveniently laid liabiliiy on the Plaintiff by stating at page180 of the brief that the Plaintiff had failed to call upon theCourt to make an order with regard to the acceptance orrejection of the issue. There was nothing for the Plaintiff to callupon Court to make an appropriate order with regard to issueNo. 4 because it had already been accepted by Court and notrejected. Therefore the rejection of issue No. 4 in his judgmentafter trial was over, was most perplexing. It is amusing to notethat the ground given for rejection is the same ground urged bythe Counsel for the Defendant on 25.03.1987 and recorded inthe proceedings, despite which ground he had allowed issueNo. 4 to be raised. This shows that the Judge never consideredthe objections raised by Counsel but merely recorded them andpostponed giving his attention to it until the stage of deliveringhis judgment. He could have rejected the issue and postponedgiving reasons. Instead, by doing what he did, he has prejudicedthe rights of the Plaintiff immensely. Plaintiff had a right to believethat his issue had been accepted by Court. If it was rejected hewould have advised himself as to how to proceed with the trial.The Judge’s conduct in this instance was reprehensible since
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he himself had barred the Plaintiif from supplementing his casewith such other evidence necessary to strengthen his case.Having done so he placed the responsibility for such an impasseon the Plaintiif which was unbecoming of a judicial officer.
The Plaintiff in this case was the Defendant in the Divorcecase. In his answer dated 06.01.1984 filed in the Divorce case,at paragraph 8, he had reserved his rights to claim his articlesin the possession of the Defendant as well as gifts given to her.The plaint in the present case was filed on 02.01.1984 nearlyan year after the filing of the Divorce action and four days beforethe answer was filed in the Divorce action. Nothing in law barredthe Plaintiff from filing such an action. The failure to seek reliefto enforce forfeiture in the Divorce action cannot therefore beheld to have operated as Res Judicata against him. The Plaintiffin this action was only defending in the Divorce action. He hadalready filed action on 02.01.1984 when he filed his answer on06.01.1984 in the Divorce action and he had reserved his rightsto enforce forfeiture separately when he filed his answer. Thatmeans, the Plaintiff by reserving his right to enforce forfeiturehad opted or elected to file a separate action on that cause ofaction (Vide Fernando vs. Fernando2)
Having elected to file a fresh action and reserved his rightsin that respect in the Divorce action, the Plaintiff-Appellant hadconducted himself in accordance with the law. There was noquestion of Res Judicata affecting his rights. In any event, assoon as issue No. 4 was raised and allowed by Court to remain,the Defendant-Respondent was free to have raised a counterissue based on Res Judicata. In any event, the status of partieshaving changed after the filing of this action and the decree inthe divorce action having been admitted by both parties by therecording of the second admission that the parties were earliermarried (Vide page 71 of the Brief), there was nothing wrong inissue No. 4 being admitted. No prejudice was caused to theDefendant-Respondent because she was entitled to raise counterissues which in fact she did. It is to be noted that the decreeitself in case No. 2007/D had not been disputed. But issue No.
6 raised by the Defendant-Respondent dealt with the question
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of the Divorce action being not contested and consequently theaverments in the Defendant-Respondent’s plaint in that casetoo going uncontested. Amended issue 6(c) raised the questionwhether the acts of ingratitude mentioned in the plaint in thiscase were in fact put in issue in the Divorce case. Issue No. 7raised the question of the adequacy or suitability of the actsmentioned to constitute gross ingratitude in law. This was aquestion of law directly posed in contra position to issue No. 4.In other words, the Plaintiff-Appellant sought to argue that thedecree in case No. 2007/D entitled him a right to enforceforfeiture. Issue No. 7 countered this position by saying thatthe acts constituting malicious desertion in the Divorce casewould not amount to acts of gross ingratitude to set aside DeedNo. 1169.
Thus issue lib. 4 should never have been rejected in thejudgment but should have been answered since it was left onthe record during trial judgment. The question of sufficientdocuments not being furnished by the Defendant-Respondentin respect of Case No. 2007/D (of the same Court) while issueNo. 4 was still on record should not have been held against thePlaintiff-Appellant. Though the Judge referred to documentsP5a to P5e not being furnished, we find P5a to P5d in the recordwith the initials and date inserted presumably by the Judgewho heard the case on 25.03.1987 (Vide pages 59 to 68 of theBrief).
Having rejected issue No. 4 the Judge dealt thereafter withissue Nos. 1, 2 and 3. He answered Plaintiffs issues Nos. 1 and2 in the affirmative.
Then the Judge refers to the fact that the Court could raiseissues even at the stage of judgment since the exact nature ofgross ingratitude had not been referred to in the issues andsuch raising of an issue was necessary. Yet, since the Plaintiffsdocuments were not before Court and since the Plaintiff hadnot proved adequately the exact grounds of ingratitude he avoidsframing an issue in that regard. There was no reason for theJudge not to have raised an issue if he deemed it so necessary,
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just because be was going to answer the issue against thePlaintiff. His argument seems to be that the Plaintiff had failedto prove an act of ingratitude and therefore he should not raisean issue. This is a case where a number of admissions wererecorded. Paragraphs 7, 8. 10, 11, 12, 14, 15, 16 and 18 of theplaint were admitted by the Defendant. Paragraph 18 dealt witha specific act of ingratitude. The issues raised by the Plaintiff-Appellant’s lawyer were based on the admissions. If the act ofassault in paragraph 18 of the plaint was accepted by theDefendant and issue Nos. 1 an 2 were answered in theaffirmative, the Judge was called upon to answer issue 3 as towhether on those grounds Deed No. 1169 had to be set aside.The fact of the Defendant-Respondent admitting the act ofassault should have been taken into consideration by the Judge.Instead he refers to adequate evidence not being placed beforeCourt. At page 126 of the Brief the Defendant-Respondent stated

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:-

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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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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
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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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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.
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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
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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:-
Yes.
Does not arise.
Yes.
(a) Not proved
Does not arise
Irrelevant
Yes.
No.
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.
TILAKAWARDANE, J. – I agree.
Appeal allowed.