046-NLR-NLR-V-52-MANUELPILLAI-Appellant-and-NALLAMMA-Respondent.pdf
iggiPresent: Basnayake J. and Gunasekara J.AfAXT'FYT/PTT.T. AT, Appellant and NALLAMMA, Respondent<S. C. 217—D. C. Jaffna, 4,704
Donation—Subsequent ingratitude of donee—Assault committed by donee on donor—Valid ground for action for revocation.
Where a donee has used violence on the donor, the donor is entitled to amorder of court revoking the deed of gift, except in so far as it affects those whc-have, prior to the institution of the action for revocation, purchased any ofthe property which was the subject-nfatter of the gift.
PPEAXi from a judgment of the District Court, Jaffna.
S. J. T. GheVoanayakam, K.C., with <S. Thangarajah, for the defendantappellant.
S. Nadesan, with H. TF. Tambiah, for the plaintiff respondent.
Cur. adv. vitlf-
January 80, 1951. Basxavake J.—
This is an appeal from a judgment of the District Judge of Jaffnaordering the revocation of a deed of gift made by the plaintiff-respondent^one Xallamma, in favour of her husband one Soosaipillai Manuelpillaithe defendant-appellant.
Shortly, the facts are as follows:—The plaintiff is a Hindu and thedefendant a Roman Catholic. Since the death of her first husbandone Xagamany in July, 1943, the plaintiff lived with the defendant, herhusband's carter, as man and wife till February, 1946, when they weremarried in church. Both before and after the marriage the defendantaeted cruelly towards the plaintiff. He assaulted her, extracted moneyfrom her, and forced her to execute transfers of her property. As life■with the defendant was becoming intolerable, in Hay and December,.1946, she lodged complaints at the Chankanai Police Station. But inJanuary, 1947, despite the harsh treatment meted out to her by the-defendant, the plaintiff made a gift of all her lands to him reserving alife-interest. Thereafter on April 25,1948, the defendant assaulted
the plaintiff again and drove her out of the house. On April 26,1948, she once more lodged a complaint at the Chankanai Police Station.
It reads:
“ Bast night about 9 p.m. while I was in my house my husbandSoosaipillai Hanuelpillal came drunk and abused me in indecent language-and assaulted me with hands all over my body and pulled me downand' kicked me several times on my back. X raised cries. He then.brought an axe and said that he will kill me with it by cutting if Iraise cries. Through fear I did not cry ou? after. He then eame upand held my hand and pulled me out and asked me to go. out and notto step into his house. ”
The plaintiff did not thereafter make up with the defendant andon July 27, 1948, the present action was instituted.
In .the course of the trial it was admitted by both sides that this casewas governed by Roman Dutch Law and it is on that footing that the•case has been argued in the trial court as well as here.
Learned counsel for the appellant submitted that in the instant casethere was no proof of ingratitude and that the plaintiff was thereforenot entitled to revoke the donation. Ike cited the case of Sivarasipillai’V. Anthonypillai 1 and contended that an assault committed by thehusband on the wife did not com^ within any of the following fiveinstances of ingratitude indicated in the judgment of Soertsz J.—
the laying of impious hands of the donee on the donor,
the donee outrageously defaming the donor,
the donee causing the donor enormous loss,
the donee plotting against the donor’s life,
the donee failing to fulfil the conditions annexed to the gift.
For the purpose of this case it is not necessary to discuss instances<3), (4), and (5).“
Learned counsel submitted that instance (1) does not apply to a case■where the husband assaults the wife.. He submitted that it applies-only to cases where the donee is under a duty to treat the donor withrespect as in the case of parent and child. He relies on the word“ impious ”, which is the rendering of the Latin word impias in deSampayo’s translation of Voet . Krause translates the relevant passage•of Voet thus: “ If the donee has laid sacrilegious hands on the donor(i.e., has assaulted him) ”.
Reference to the other Roman Dutch commentators makes it clearthat what de Sampayo has rendered as ‘‘if the donee should lay impioushands upon the donor ” is only another way of saying that the donee"lias used personal violence on the donor.
■ In order to obtain a clear picture of the Roman Dutch Law on thepoint I have examined the works of the various commentators, whose^statements of the law on this point are set out below.
(a) Van Leeuwen’s Censura Forensis (Barber’s translation) :-
“ And so a duly constituted gift can never be revoked bythe donor, unless the donee has turned out to be ungrateful,as, for instance, when he has damaged the honour of the donor,has used personal violence towards him, or has made anattempt on .his life, or has wasted his property, or has notobserved the agreement or conditions attached to the gift. ”
Tan Leeuwen’s Commentaries 1:
“ Donations again may also be revoked and cancelled byreason of great ingratitude and injury done to the donor;as where the donee has attempted the life of the donor,,assaulted him, or publicly slandered him, or has refusedsupport to the donor who has been reduced to poverty,and the like.”
Huber’s “ Jurisprudence of My Time ” 2:
“ 35. Yet there are also cases in which donations alreadymade are invalidated, nofj through repentance or death ofdonor or donee, nor through loss of the deed of gift, nor aliena-tion of the property donated, nor on the pretext that thedonation would be to the prejudice of another, nor finallythrough command of the princeps or sovereign power of thecountry;
“ 36. But for two reasons only, firstly, on the ground of'ingratitude of the donee towards the donor; • and secondly,through subsequent birth of children.
“ 37. Ingratitude has five species of cases :
If the donee has sought to take the life of the donor;
If he has laid violent hands upon him;
If he has grievously insulted him;
If he has wrought great damage to his property; and
If he has not observed the terms and expressed object of’
the donation which was made.‘
To this the jurists have added, not without reason, if one,who has obtained the donation of all or most of a person'sproperty, refuses maintenance to the donor, when he has falleninto poverty.”
Girotius :
Maasdorp’s translation 3 :
“16. A donation once made is valid and irrevocable.
“ 17. Unless the acceptor attempts the life of the donor,or strikes him, or attempts to ruin his estate. Maliciousslander or any other great injury gives the same right, exceptto mothers who marry a second time. Causes of equal orgreater weight are also held to have the same force, amongstothers the neglect of the'’ acceptor (if he has the means) to-maintain the donor in his utmost need.”
Herbert’s translation4:
“ A donation once made is binding and irrevocable.
Kotze's translation, Vol. 2, p. 235—236.,
Vol. I, Section 35—37, p. 477..
Afaasdorp, Booh III, Chapter II, Sections 16—17, p. 206.
* Qrotius, Booh III, Chapter II, Section 16 and 17, p. 287.
“ Unless the acceptor has attempted the life of the donor,or inflicted on him personal violence, or has contemplatedmaking all his property of no value. Slander, or reproach,or other grievous injury, confers the same legal effect exceptto mothers who have married a second time. Matters ofthe same or greater weight are also considered to be of thesame consequence and amongst these also the refusal of theacceptor (should he have the means) to support the donorin his utmost need.”
Lee’s translation 1:
‘ ‘ A gift once made retains its force and cannot be revoked:
c
“ Unless the donee has attempted the donor’s death,beaten him, or sought to deprive him of all his property.Outrageous slander or other great injury gives the same rightof revocation, except to mothers who contract a secondmarriage. Causes of equal or greater weight are held tohave the same effect, and amongst them if the donee, havingthe means, has refused to support the donor in his utmostneed.”
d have also consulted Burge and Domat. Burge 2 expresses-his view thus:
” A donation may become revoked by the non-performanceof the condition to which it has been made subject, or obingratitudinem donatarii. In the first ease, the donationis determined by the very terms in which it is granted;in the latter, it is not revoked ipso jure, but only by thesentence of the judge, post plenam causae congnitionum. Thecauses for which it may, on the latter ground, be revokedconsist of personal violence against the donor, attempts onhis life, or some great damage to his property.”
Domat 3 says:
“ The first engagement of the donee is to satisfy the chargesand conditions of the donation, when there are any; andif he fails in it, the donation may be revoked, according tothe circumstances. (Art. I, para. 941).”
“ The second engagement of the donee is thankfulnessfor the benefit received; and if he is ungrateful to the donor,the donation may be revoked according as the deed of thedonee may have given occasion for it. Thus, the donormay revoke the donation, » not only if the donee makes anyattempt upon his life or honour, but likewise if he commitsany violence or outrage upon his person, or does him anyinjury; or if he occasions him -any considerable loss by unfairpractices. (Art. H, para. 942). ”-
i Lee's Qrotius, pp. 310 and 311y'
"* Burge's Commentaries on Colonial and Foreign Laws, Vol, 2, p. 146.
Vol. J, Treatise on the Civil Law, p. 406. Fart J, Book I, Title 2C, Section III,paras. 941—942..
I have quoted extensively from the commentators both ancient andmodern in order to show that there is no difference of opinion, amongthem on the question before us. Whether the Latin word impias isrendered "impious ” as de Sampayo has done or “ sacrilegious ” asKrause has done, the legal position is the same. It is impious or sacrile-gious for a donee who has derived benefits from .a donor to strike himor use personal violence on him. It is in that sense that I understandthat these words have been used by the learned translators and not inthe sense in which learned counsel submits they should be construed.
It is clear therefore that in the instant case as the donee lias usedviolence on the donor, the donor is entitled to an order of court revokingthe deed of gift, except in so far as it affects those, who have prior to theinstitution of this action purchased any of the lands gifted to the doneeby the donor by her deed No. 1,730 of Janua^ 13, .1947.•
The appeal is dismissed with costs.
Gujjasekera J.—I agree.
Appeal dismissed.