Sri Lanka Law Reports
 3 Sri LR.
v.CECILIYANA DE SILVA AND ANOTHER
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 687/93 (F)
DC MT. LAVINIA NO. 1527/PNOVEMBER 27, 2000,
FEBRUARY 27 ANDMARCH 29, 2001
Partition action – Mental capacity of donor – Evidence Ordinance, sections 101and 102 – Is medical evidence necessary? – English Law – Voidable contract.
It was contended that the mother of the 2nd defendant-appellant did not havethe mental capacity to grant a gift of the corpus.
In the absence of medical evidence, a person who exibits aberrant andabnormal behaviour cannot be called a deranged or insane person. Aperson who may be subjected to such irrational behaviour may still becapable of understanding the nature and effect of his act.
Under the English Law a contract is voidable if one contracting party isto the knowledge of the other, incapable by reason of unsoundness ofmind of understanding the nature and quality of his act. The burden ofestablishing unsoundness of mind of this character is imposed upon theparty alleging its existence.
The mere presence of delusions even if they are not altogether unconnectedwith the subject-matter does not ipso jure destroy contractual capacity,unless the delusions constitute the real motif of the transaction.
APPEAL from the judgment of the District Court of Mt. Lavinia.
CA Piyaratne v. Ceciliyana de Silva and Another (Dissanayake, J.)415
Case referred to :
1. Soysa v. Soysa – 19 NLR 314.
P. A. D. Samarasekera, PC with Champaka Laduwahetty for substituted2nd defendant-appellant.
Nihal Jayamanne, PC with Noorani Amerasinghe for plaintiff-respondent.
Cur. adv. vuk.
July 12, 2002DISSANAYAKE, J.
The plaintiff-respondent filed this action to partition the land called“divided one-third share marked lot D of Gorakagahawatte" andmorefully described in the schedule to the plaint and depicted inthe preliminary plan No. 221 dated 10. 09. 1987 of Commissioner,Victor Chandradasa.
The 1st defendant-respondent and the deceased 2nd defendantby their separate statements of claim filed whilst denying theaverments contained in the plaint prayed for dismissal of theplaintiff-appellant's action.
The case proceeded to trial on ten points of contest and at itsconclusion the learned District Judge entered judgment orderinginterlocutory decree to be entered, allocating undivided 1/2 share eachto the plaintiff-appellant and the 1st defendant-respondent, the entiretyof house No. 88 to the 1st defendant-respondent, an undivided9/10th share of house No. 90 to the plaintiff-respondent and undivided1/10th share to the 1st defendant-respondent.
Sri Lanka Law Reports
 3 Sri L.R.
It is from the aforesaid judgment that this appeal is preferred,'
Learned President's Counsel appearing for the substituted 2nddefendant-appellant contended that the learned District Judgemisdirected himself in holding that house No. 90 devolved on the 20plaintiff-respondent and 1st defendant-respondent.
The above argument of the learned President's Counsel for thesubstituted 2nd defendant-appellant was based on the contentionthat the learned District Judge had failed to consider the evidenceled by the deceased 2nd defendant to show that Alice de Silvadid not have a sound mental capacity to execute deed No. 1671of 01. 04. 1976 (P1).
There was no dispute in regard to the corpus which is in extent19.08 Perches, on which houses bearing assessment Nos. 88and 90 are situated.30
The only dispute in this case is whether Alice de Silva, the motherof the 2nd defendant-appellant had the mental capacity to grant giftof the corpus by deed of gift No. 1671 of 01. 04. 1976 (P1). Thisis crystalised in the point of contest No. 5.
The plaintiff-respondent by calling Mohamed Ismail Hamdol one ofthe attesting witnesses to Deed of Gift bearing No. 1671 (P1) hasestablished that Alice de Silva placed her signature on deed No. 1671(P1) before Azad Raheem, Attorney-at-Law and Notary Public.
Witness Mohamed Ismail Hamdol was emphatic in his testimonythat Alice de Silva has come to the office of attorney-at-law and NotaryAzad Raheem for other work and he further stated that in the courseof the conversation he had with Alice de Silva he came to know herwell. The above evidence of witness Hamdol establishes the fact that
CA Piyaratne v. Ceciliyana de Silva and Another (Dissanayake, J.)417
Alice de Silva was quite normal during and at the time of execution.of deed No. 1671 (PI).
In view of this evidence it was absolutely essential for the deceased2nd defendant's counsel to have cross-examined witness AhamedIsmail Hamdol on the mental condition of Alice de Silva at the timeof execution of deed of Gift No. 1671 (P1).
Since the mental health of Alice de Silva was in issue there was soa duty cast on the deceased 2nd defendant to establish that Alicede Silva was not of sound mind at the time she executed deedNo. 1671 (P1).
However, the counsel for the deceased 2nd defendant failed tocross-examine witness Hamdol on this basis.
Since it was the position of the deceased 2nd defendant that Alicede Silva was not of sound mental health at the time she signed deedof gift (P1), under section 101 of the Evidence Ordinance the burdenof proving the existence of that fact was on the deceased 2nddefendant.60
Under section 102 of the Evidence Ordinance, the burden of prooflies on that person who would fail if no evidence at all were givenon either side. Illustration (b) of section 102 of Evidence Ordinancesets out as follows :
(b) A sues B for money due on a bond. The execution of thebond is admitted, but B says that it was obtained by fraud,which A denied. If no evidence were given on either side,
A would succeed, as the bond is not disputed and the fraudis not proved. Therefore, the burden of proof is on B.
Sri Lanka Law Reports
 3 Sri
. The deceased 2nd defendant gave evidence to the effect that fmother Alice de Silva was not of sound mind since 1973. He cam.,to that conclusion based on his observations of her. In his evidencethe deceased 2nd defendant stated that on occasions whilst beingseated in the verandah he observed her talking to an imaginary personwhom she stated was her late husband. He also stated that she usedto bring dirt, pieces of tin and stones into the house having put theminside her blouse. He also stated that at times she refused to havemeals stating that it contained excreta.
He only relied on the evidence of one other witness. Attomey-at-Law Donald Ranasinghe who claimed to be a friend of the deceased2nd defendant's late father. It was the testimony of this witnessthat after the years 1972 and 1973 Alice de Silva's behaviour hadchanged. He found her picking up pebbles on the road and statedfurther that she failed to recognize him when spoken to.
The date on which deed No. 1671 (P1) was signed was the1st of April, 1976. Therefore, it is incumbent on the deceased 2nddefendant who sought to set aside deed (P1) on the ground that Alicede Silva the donor, was not of sound mental condition, to lead evidencewith regard to her mental condition on or about the 1st of April, 1976.
Donald Ranasinghe and the deceased 2nd defendant in theirrespective evidence referred to the delusions Alice de Silva is supposedto have had generally from about 1972 and 1973.
In the absence of medical evidence a person who exhibits suchaberrant and abnormal behaviour cannot be called deranged orinsane. A person who may be subjected to such irrational behaviourmay still be capable of understanding the nature and effect ofhis act.
i Piyaratne v. Ceciliyana cte Silva and Another (Dissanayake, J.)419
-tin the case of Soysa v. Soysa™ the head note reads as follows"Under the Roman-Dutch Law
Under the English Law a contract is voidable if onecontracting party is, to the knowledge of the otherincapable, by reason of unsoundness of mind, ofunderstanding the nature and quality of his act; the burdenof establishing unsoundness of mind of this character isimposed upon the party alleging its existence. The merepresence of delusions, even if they are not altogetherunconnected with the subject-matter, does not, ipso jure,destroy contractual capacity, unless the delusions constitutethe real motif of the transaction. Where a donee eitherstands in one of the certain recognised relationshipstowards the donor such as parent and child or solicitorand client, or is shown by the evidence to have beenin a position of active confidence towards him the burdenof proving that the gift was a voluntary act of latter willrest upon him, and the donation cannot be maintainedunless it appears that the donor had independent advice.There may be mental conditions which fall short of insanity,but which may be productive of a facility of dispositionover which undue influence might very readily be exercisedwith effect.
Shaw, J. “In order to create a position of active confidence,it is not necessary for one of the usual relationships of solicitorand client, guardian and ward, parent and child, & c., should exist,and there is no reason why one brother should not stand to anotherin such a position. Every case must depend upon its particular,facts."
Sri Lanka Law Reports
 3 Sri L.R.
Therefore, it is relevant to observe that the deceased 2nddefendant had failed to discharge his burden that Alice de Silva'smental condition was not sound when she executed deed No. 1671 130(P1) on 01. 04. 1976.
The learned District Judge has considered the above material andhad rightly come to the finding that the execution of deed No. 1671(P1) was the act and deed of Alice de Silva who was possessedof a sound mental capacity at the time deed No. 1671 (P1) wasexecuted.
Therefore, is no basis for this court to interfere with thejudgment and interlocutory decree entered.
I dismiss the substituted 2nd defendant-appellant's appeal with
SOMAWANSA, J. – I agree.
PIYARATNE v. CECILIYANA DE SILVA AND ANOTHER