KRISHNASWAMY and another, Appellant, and THILLAIYAMPALAM, Respondent

066-NLR-NLR-V-59-KRISHNASWAMY-and-another-Appellant-and-THILLAIYAMPALAM-Respondent.pdf

JUSXAV.AKK, C.J.—A'rishna-sicutny r. Tliillniynmi>tilain
205
1957Present:Basnayake, C.J., and L. W. de Silva, A.J.IvRISHXASWASlY and another,Appellants, and THILLA1TAMPA LAM,
Respondent .
S. G. 516—D. C. Point Pedro, 4,572
Donation—Revocation—Ingratitude as ground—Scope.
Revocation of a deed of gift may be granted on the commission of a singlenet of ingratitude.
There is no hard and fast rule as to what conduct on (ho part of a donee maybo regarded as ingratitude for which a donor may ask for revocation of his gift.
jA-PPEAL from a judgment of the District Court,.Point Pedro.
II. JV. Jaycicardene, Q.C., with V. Arulambalam and Ar. It. M.Dahnvalte, for Plaintiffs-Appellants..
Ilenf/analhan, with P. Nagulesicaram, for Defendant-Despondent.
Cur. adv. vult.
■ iSTovcmber 15, 1957. Basxavake, C.J.—•
The question that arises for decision on this appeal is whether the deedof donation executed by the plaintiffs on 29th December 19A8 is re-vocable on the ground—•
that the deed was not acted upon,
(£>) of ingratitude..
The plaintiffs' case is that the land was conveyed to the defendant byway of gift at his request because he represented to them that he wouldbe able to gain some advantage from the income tax authorities byshowing them that he was the owner of the land, and that the deed wasnot meant to be acted on. The plaintiffs therefore sought to obtain are-convey a nee on the footing that it was not meant to bo a gift but aconveyance on the understanding that the defendant would after hispurpose had been served re-eonvey the land to them. The learned trialJudge has found that the deed has been acted upon and was intended tooperato as a gift of the land referred to therein. We sec no reason todisturb that finding of fact.
The 1st plaintiff is the husband of fhe 2nd plaintiff and tho defendantis the younger brother of the former. The land in question was given tothe 2nd plaintiff by her parents as her dowry and the plaintiffs’ residinghouse stands on it. The plaintiffs’ case is that as they did not regard thoconveyance as a gift they sought to get the land back from tho defendant,but- he put them off on various pretexts whenever they broached tho
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' BASX-AYAKE, C.J.—Krishnastcam >j v. Thillaiyampalam
subject-. Finally when all their attempts had failed they sought the goodoffices of Thcayalpakar, a respected elder known to both parties. It wasat the meeting between the plaintiffs, tho defendant, one Sivaguru, andThayalpakar that tho defendant committed the acts of ingratitudecomplained of. Tho 2nd plaintiff described the incident thus :“ I
told liini, ' You arc not replying to our letters and when your brothercomes you do not give a correct reply. Why are you cheating us likothis ? I have come personally to ask you to re-convey this land and givethe money duo to us. 1 am having the deed in my hand. ’ I asked himto rc-convcy the land. He said, ‘ You woman, are you a big landlady ?To whom are 3-011 going to give it ? ’ I said, £ It is m3' land and I cando it as 1 like. ’ The defendant said, ‘ You whore, are 3'ou going to givethis propert3r to the person who wants to have intercourse with 3'ou VHe continued to abuse me. Then m3' husband said, ‘ You fellow, is thisthe gratitude 3'ou have returned to us for all the help done to 3rou ? ’The defendant raised his hand and went to assault m3' husband. Hewas continuing to abuse me. ”
Thayalpakar’s evidence goes to support the 2nd plaintiff as to theoccurrence of the incident she has described, and what is more lie sa3'sthat he had to separate the 1st plaintiff and the defendant when the latterattempted to assault him. Thayalpakar advised the defendant to re-convey the land, but he sa3'3 that though the defendant agreed he did notdo so. The learned trial Judge has not rejected the account of this incidentas deposed to b3' the 2nd plaintiff and Tha3*alpakar, but he holds that theconduct of the defendant does not in law amount to ingratitude. Tha-yalpakar is a man of 73 and appears to be a person held in high esteemin his community. He is the proprietor and manager of two schools andmanager of the Sivan Temple. Learned counsel for the appellant reliedon tho case of ManiiclpiUai v. Nallamma 1 and the statements from theHoman-Dutcli Commentators cited therein, while learned counsel for thorespondent relied on the ease of Sivara-sipillai v. Anthonypillai 2 whereinSoei tsz J. sa3rs :
“ Wo have been referred to a passage of Perezius on donations inwhich that commentator challenges Voet’s extension of the instancesof ingratitude to ‘ other similar and graver causes ’ as oppo^pd toauthority'. I11 these modern times, the natural tcndcnc3r will be totake the view of Perezius and strictl3' limit the instances of ingratitudewhich justif3' the revocation of a donation to those expressh' mentionedfor it will bo highh" inconvenient and oven dangerous to make ‘ ingra-titude ’ at large a ground for revocation as respondent’s counsel con-tended was the law. ”
With great respect- I wish to observe that the statement that Perezius“ challenges Voct’s extension of the instances of ingratitude to * othersimilar and graver causes ’ as opiiosed to authority ” is not correct, asPerezius was not a contemporaiy of Voet and Vpet’s commentaries ontho Pandects did not appear till after the death of Perezius. WhenPerezius wrote his Praclectioncs Codicis Jnsliniani ho was not aware of
"* (ID37) JO -V. L. R. 17.
1 (1051) oZ -Y. L. R. 221.
BASN'AYAICE, C,J.—KrishnaSicamy i*. Thillaiyampatam
2G7
the view Voefc was going to take in his Commentary. Perezius cannottherefore be said to liavc challenged a statement of which he was unaware.Perezius also known as Perez was born at Alfaro on the Ebro in 1583.He studied in Brussels and Louvain where he became professor in 1G16or thereabouts (the date is uncertain) and died there in 1672 or 1674,it is not certain in which year (A South African Legal Bibliography byA. A. Roberts, p. 236). He wrote his Braclecf tones Codicis Juslinianiin 1653 and at that time Yoot’s Commentary had nob been published.It was only in 169S that Volume I and in 1701 that Volume II of Voet’sCommentaries appeared (A South African Legal Bibliography by A. A.Roberts, p. 319). An examination of Perezius’s statement (PraeleclionesCodicis Justiniani, Book VIII, Tit. LVI, Secs. 4, 5 and 7—Wikrama-nayake’s translation) does not show that he was so dogmatic as all that.He saj-s :,
”4. Donations may be entirely revoked for two reasons. Thefirst is if the persons on whom the benefit has been bestowed are un-grateful ; this is lest any'one may be allowed both to take the propertyof another and to mock at tho donor’s frugality, and also that thedonor should not be allowed to lose his property and bo ill-treatedby an ungrateful recipient of the gift- This is observed not only inthe case of children but much more in the case of freedmen so that ifanything has been obtained in their name with the money of theirPatron or by his favour it may be revoked on account of the vice ofingratitude, for those who evoked the liberality of their .Patronsby their obedience are not worthy to retain it when they begin toneglect that obedience since the liberality bestowed on them oughtrather to incline them to obedience than set them up to insolence.
“ 5. The causes of ingratitude are five in number, namely, if thedonee outrageous!}' insults the donor, or lays imjnous hands on him,or squanders his property or plots against his life or is unwilling tofulfil the pact which was annexed to the gift.
“ 7. The question arises whether a donation can be revoked forother causes besides the five causes of ingratitude just mentioned.The general opinion of the Doctors is that it can, also provided that theyare graver than, or as grave as, these. But the contrary opinion ismore correct that a gift cannot be set aside for any other cause, bothbecause d. 1. nit. when it enumerates these fivo causes adds that giftscan be invalidated for these causes alone if they* are proved in a courtof law : and also because the said law contains a penalty which oughtnot to be extended by a parity of reasoning or a fortiori to other casesthan those about which'it is expresslj' determined.”
Let us compare this with what Voct1 ancl Van Lceuwcn2
say:•
“ Such a donation inter vivos cannot from its own peculiar naturebe hastily revoked, not even on a rescript from the Emperor, nor if thedonor avows that he made the gift in fraud of another. Nevertheless
1 Book XXXIX, Tit.5, Sec. 22(Gane's translation).' –
3 J’an Leeuicen, Book IV,Pi. I,C7i. XIT, Sec. 20 Barber’s translation, p. 91.
:5s2GS _ '. BASNAYAKE, G.J.—JCrisfiriasicbmy v. Thillaiyampcilam 1
it11:—- –
five just causes of ingratitude are listed for ivhich, if the donee has .offended against the donor in. regard to them, .there is room for re- .vocation, that is to say, for change of mind. This is so although it" had been arranged by agreement at the time of the donation, even byagreement confirmed on oath, that the gifts would not be withdrawnon the ground of ingratitude. Such a covenant is void as being atemptation to wrongdoing, and as involving tho forgiveness of afuture offence.'
“ These causes are when tho doneo has. laid wicked hands upon thodonor, or has contrived a gross and actionable wrong, or some hugevolume of sacrifice or a plot against his life, or finally has not obeyedconditions attached to the donation.
“ The-re seems also to be. no doubt that a icithdrairal of gifts can alsotake jdace for- other similar or more serious reasons, on the analogy ofwhat I have stated in my title on Undutiful hast Wills, as to disherisontaking place for causes similar to or more serious than those which"arclisted in the passages cited below. ”
Van Lcemvon is precise and brief. Though he docs not discuss thesubject at the same length as Voe-t he leaves no room for doubt that t-lieinstances of ingratitude specified aro only meant to serve as examplesand are not intended to bo exhaustive. He says :
“ And so a duly constituted gift can never be revoked by the donor,unless the donee has turned out to bo ungrateful, as, for instance, whenhe has damaged the honour of tho donor, has used personal violencetowards him, or has made an attempt on his life, or has wasted hisproperty, or has not observed the agreement or conditions attachedto the gift. ”
If wo go back to the original source, viz., the Roman Law, it will beseen that the wider interpretation of Voct and Van Leeuwen is preferableto tlic narrow view of Perczius. This is what the decree of Justiniansays :•
“ We decree, in general, that all donations made in conformity withlaw shall be valid and irrevocable, and if ho'who receives the donationis not found to bo guilty of ingratitude towards the donor, as, forinstance, where he lias inflicted atrocious injury upon him, or hasbeen guilty of personal violence towards him, or of having, by treachery,caused him to suffer great pecuniary losses which sensibly diminishedhis estate, or lias exposed him to the danger of losing his life, or isunwilling to comply with any agreements inserted in the documentevidencing the donation, or even if these were not committed to writing,and he, as the recipient of the donation, premised to observe them, butfailed to do so. .-. ;' '.•
“But only-for causes of this kind, where they have been regularly"proved in court by indisputable evidence, do wc permit donations madoto such persons be revoked, in order that no one luaj have permissionto accept the property of another, and then" ridicule his liberality,subject him to loss, and cause him to suffer the injuries above mentionedfrom the mug rate ful beneficiary of his bounty.
P.ASXAY.AK E, C.J.—Krishnaswamy v. Thillaiyampalam
269
Wo, however, decree that lliis provision shall cnly apply to thepersons originally interested, as permission is not granted to the heirs;• of tho donor to file complaints upon such grounds ; for if ho who suffered,these indignities remains silent, his silence should always continue,,and his posterity ought not to ho allowed to institute legal proceedings;cither against tho individual alleged to be ungrateful, or his heirs.
“ Given on the fifteenth of the Kalends of April, during the Consulateof Bampaclius and Orestes, 530. ” (Code of Justinian, 33k. VIII, Tit.JjVT, s. 10) Scott’s translation, Vol. II, p. 3-49.)
I have quoted in exlenso from tho Commentators because their writingsin translation are not readily available.
It would appear from what has been cited above that even Pereziusacknowledges that tho general opinion of the Doctors is that a donationcan be revoked for other causes besides tho five causes of ingratitudespecified by him ; provided that they are graver" than or as grave asthose. But Perezius himself prefers the view that a donation cannot beset aside except on any of the grounds specialty- mentioned. His reasonsfor his view are unconvincing and I prefer to follow the other view whichPerezius says is the general opinion of the Doctors and which is .also theopinion of Vcot, and Van Leeuwen.
It is clear from Justinian’s decree that the instances cited are intendedonly to servo as examples of .acts of ingratitude. His words are “ dona-tions made in conformity with law shall be valid and irrevocable and ifhe who receives the donation is not found to be guilty of ingratitudetowards tho donor, as, for instance … ” Tho object of the power
to obtain a revocation of a gift for ingratitude was in tho words of Pere-zius “ lest anyone may bo allowed both to take tho property of anotherand to mock at the donor’s frugality and also that the donor should notbe allowed to lose his property and be ill-treated by an ungrateful recipientof tho gift. ”
It •would be unwise to lay down a hard and fast rule as to what conducton the part of a donee may be regarded as ingratitude for. which a donormay ask for revocation of his gift. Voct’s view is that ingratitude forwhich a donation may be revoked must be ingratitude which a court doesnot regard as trifling. He says : “ Of course slighter causes of ingrati-tude are by no means enough to bring about a revocation. Althoughboth the laws and right reason entirety condemn every blot and blemishof ingratitude, albeit somewhat sight, nevertheless they have not intendedthat for that reason it should be forthwith penalized by revocation ofthe gift ”. The ways in which a donee ihay show that ho is ungratefulbeing legion, it is not possible to state what is “ slight ingratitudo ’’ andwhat is not, except in regard to the facts of a given case.;
– There is nothing in the books which laj-s down the rule that a revocationmay not bo granted on tho commission of a single act of ingratitudo.Ingratitude is a frame of mind which has to bo inferred from the donee’sconduct. Such an attitude of mind will be indicated either by a singleact or by a series of acts. What greater ingratitudo could there be thanto treat tho 1st and 2nd plaintiffs as the defendant has done ? It may be2*J. X. B 2320 (2/5S)
270 ' . ..••,■ H'ijesuriya v. Pctr-is •- •
one instance, but the donee must take the consequence of his conductif the donor is unwilling to forgive him. I am of opinion that thelearned District Judge is wrong in taking the view that in law there is nogroimd for revocation of the deed of gift. I would grant the plaintiff'sprayer for the revocation of deed No. 1015 of 20th December 1948 attestedby K. Ratnasingham, Notary Public, and make order revoking tlio deed.Tko plaintiffs’ appeal is allowed with ccsts both here and below. .
W. de Silva, A.J.—I agree..
Appeal allowed. –