054-NLR-NLR-V-13-SENDRIS-APPU-v.-SANTAKAHAMY.pdf
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Present: Mr. Justice Middleton and Mr. Justice Wood Benton.SENDBIS APPU v. SANTAKAHAMY.
D. C.t Tangalla, 992.
Deed of gift to concubine in consideration of past cohabitation and mcontemplation of future cohabitation—Valid—Completed gift.
A deed of gift made in consideration of past cohabitation and incontemplation of future cohabitation is not invalid for that reason.
A concubine would not be able to sue for anything promised herin consideration of illicit intercourse; but if the thing promised hadbeen transferred, it could not be taken from the concubine.
T
HE facts of this case are fully set out in the judgment ofMiddleton J.
Bawa, for the appellant.—The deed of gift in favour of respondentis void, as the consideration for the gift is illicit intercourse. Aconcubine cannot sue for anything promised her in consideration ofillicit intercourse. (See 2 Nathan 552, section 767.) Although thelaw will not disturb possession based on such deeds, it will not
July 22,1910
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Jvly 22,1910 enforce a deed of this character. (Counsel also referred .to Voet, 24,Sendri* 1» 15.) Karonchchihamy v. Angohamy 1 is on all fours with thepresent cape, and is a binding authority. The judgment reportedhomy in (1904) 8 N. L. R. 1 does not touch the point now under discussion.
Although Rabot v. Silva3 gives a testator unlimited powers ofdevise, it does so on the ground that the Statute Law has modifiedthe Roman-Dutch Law. Rabot v. Silva does not touch the questionof donation.
Tan Langenberg, for the respondent.—The gift was accepted, andit is therefore a completed gift; it is not an executory contract.Such a gift as the present one is valid; it could not be taken awayfrom the concubine on the ground that the consideration was illicitintercourse. Paraaaity Ammah et al. v. Settupulle 3 is a bindingauthority* Rabot v. Silva is also an authority in favour of therespondent. The Statute merely permitted parties who lived inadultery to marry one another; the Privy Council said that the rightto devise was a necessary corollary to the right to marry. Counselalso cited 3 Maasdorp 21.
Bawat in reply.
Cur. aiv. vult.
July 22, 1910. Middleton J.—
This was a partition action begun by the plaintiff's father, DonDavit, who having died pending .the action, his mistress, the ihter-venient respondent, claimed on a deed of gift of the land .to her.The District Judge dismissed the partition action, upholding thedeed of gift, and the plaintiff appealed on the ground that the deedmust be held to be an invalid and void deed for immorality.
Don Davit was a married man, and apparently kept the respondentwith the consent of his wife, who was a invalid woman. The deedis expressed as follows: “ For and in consideration of the affectionI have for my mistress Santakahamy-, who is now of help to me,and of receiving help from her hereafter, I do hereby grant, assign,set over, and assure by way of gift, to vest after my demise, retainingthe possession for myself during my lifetime, unto K. K. Santaka-hamy the following, property . . . In a letter clause the deedstated: “Therefore. I do hereby declare that my heirs, execute's,administrators, and assigns have no right or title, save and exceptmy life interest, henceforth over the premises gifted above, and. insuccession to me Kodituwakku Kankanage Santakahamy afore-said, her heirs, executors, administrators, and assigns, may possessthe same, or do anything therewith according to wish/’ The giftwas duly accepted in the deed of gift by the donee.
1 {2896-1897) 2 N. L. R. 276.1 (1909) 12 N. L. R. 81.
8 (1872) 3 N. L. R. 271.
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The appellant relied on 2 Nathan 552 and Karonchchihamy v. July 22,1910Angohamy 1 as being a case on all fours with that under consideration. mjodiotonOn the other hand, for the respondent it was contended that J-this Court was bound by the decision in Paraaatty Ammah et al. v. sendrisSettupuUe,2 and Maasdorp 21 was relied on.Appuv,
At the date of intervention by the respondent, it is perfectly clearto my mind that the property granted by the deed had fully vestedin law in the grantee, and that no express or implied revocation ofit had occurred.
It seems to me that the principle adopted by the Cape SupremeCourt that it will not lend its power and authority to the enforce-ment of contracts made for illegal or immoral consideration is thecorrect view of the law. That Court, while admitting that there wasa conflict of opinion arising from the Roman-Dutch Law authorities,inclined to the view that a concubine or prostitute would not beable to sue for anything promised her in consideration of illicitintercourse; but that if the thing promised had been transferred, itcould not be taken from the concubine or prostitute, following themaxim of the civil law: quum par delictum eat duorum semper oneraturpetitor et malior habetur possessoris causa (when both persons are inthe wrong the burden always lies on the claimant, and the possessoris in the better legal position) (2 Nathan 552). Applying that principlehere, the intervenient is, in the eye of the law in possessionof the property granted by the deed of gift, and her possession mustprevail as against the plaintiff’s claim for partition of the land.
The only ground on which the plaintiff could succeed would be onthe ground of immoral consideration, which it would not lie in themouth of Don Davit to aver, on the principle that he ought not tosucceed in a court of law on the basis of his own turpitude. The. plaintiff, 1 think, could only base his claim to an avoidance of thedeed on the grounds upon which the grantor would be able to reply,and as the grantor would be debarred from averring his own turpi-tude in support of such a claim, it seems to me his heirs would beequally prevented. This principle, I think, is manifestly supportedin the judgment of Creasy C.J. in the case of Paraaatty Ammahet al. v. SettupuUe, ubi supra.
In the case of Sanders v. Smiles 3 Kekewich J., a deed made inconsideration of past cohabitation and in contemplation of futurecohabitation was held not tp be invalid for that reason.
In my opinion this appeal should be dismissed with costs.
Wood Renton J.—
The only point that has given me any real difficulty in this caseis as to whether or not a gift by Don Davit in favour of his concubineSantakahamy could be impliedly revoked by him, and if so, should
1 (1896-1897) 2 N. L. B. 276.• (1872) 3 N. L. R. 271.
3 (1905) 21 Times Loto Reports 89.
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Wood
Rbnton J.
SendtiaAppu v.Santaka-
July 22,1910 be held to have been so revoked when he instituted the present
partition action, claiming the subject-matter of that gift as his own,
and declaring no interest in it in favour of Santakahamy. Aftercareful consideration, however, I do not think we are bound, orindeed entitled, to decide that issue in the present case. The pointwas not taken at the trial, and the only use that was made -by theappellant in the District Court of the circumstances to which 1have just referred, was as a foundation for an argument to the effectthat Don Davit's proceedings in the partition case showed that hehad never had any intention of parting with the property in questionto Santakahamy. Moreover, the reservation by Don Davit of aninterest, which I am not prepared to say was merely a usufruct, ;nthe property during his lifetime may well be regarded as supplyinga reason for his having brought his partition action in the formwhich it has assumed.
On the other point argued in the cake, I am clearly of opinionthat the gift to Santakahamy was not ipso jure void under Roman-Dutch Law. The deed of gift was duly executed, it was accepted bySantakahamy at the time, and it was produced by her in supportof her intervention in the action. It does not result from anyRoman-Dutch authorities cited to us that a gift to a concubine is nulland void in the sense that it is prohibited by law. The decision ofthe Supreme Court in Parasatty Ammah et al. v, SetupulW is a directauthority to the contrary. There is nothing in Karonchchihamy v.Anyohamyeven if the whole authority of that case must not beregarded as having been undermined by the decision of the PrivyCouncil in Rabat v. Silva *, that runs counter to it in regard to thepoint that I am now considering, and the passages cited by Mr.Bawa from 2 Nathan 552 axe not applicable to a case like the present,where the contract of donation has been completed by acceptance.On the contrary, as my brother Middleton has shown, the authorityof Nathan is really against the appellant.
On these grounds I would dismiss this appeal with costs.
Appeal dismissed.
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’ (1872) 3 AT. L. R. 271.* (1896-1897) 2 A L. R. 216.
» (1909) 12 N. L. R. 81.