SILVA v. RATNAYAKE

047-NLR-NLR-V-37-SILVA-v.-RATNAYAKE.pdf


Silva v. Ratnayake.
245
1935Present : Poyser J. and Soertsz A.J.
SILVA v. RATNAYAKE.
385—D. C. Colombo, 30,036.
Donation—Immoral consideration—Right of donor to recover—Roman-Dutchlaw.
Under the Roman-Dutch law a woman cannot recover property giftedby her to her paramour.
PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, for appellant.
Weerasooria (with him J. L. M. Fernando), for respondent.
246
POYSER J.—Silva v. Ratnayake.
July 30, 1935. Poyser J.—
The plaintiff alleged that, in 1922, she purchased a share of the landcalled Bogahawatta in the name of the defendant and had erectedbuildings thereon to the value of Rs. 7,000, that the defendant held theproperty in trust for her and had undertaken to convey it to her whenrequested but had wrongfully and fraudulently refused to do so.
The defendant, in his answer, denied that the plaintiff purchased thisland or erected any buildings therein but alleged that he purchased theland in question with his own money and that the buildings were erectedat his own expense. He admitted borrowing sums of money amountingto Rs. 750 from the plaintiff for the purpose of erecting the said buildings,but alleged that he paid back Rs. 650 of that amount and that the plaintiffretained goods of his to the value of Rs. 300. He did not however makeany claim in reconvention.
The following are the material issues that were framed : —
Did the plaintiff purchase the land in dispute by deed No. 24 of
July 27, 1922, in the name of the defendant in trust for theplaintiff ?
Did the plaintiff improve the said land and errect a building thereon ?
The plaintiff’s evidence was to the following effect:—That the defend-ant, who had been a Buddhist priest but had given up his robes, came toher house in 1922, in search of employment. Her husband assisted himboth financially and in other ways. She further stated that her husbandwished to buy a property and put up a Sangha Vasa for the use of Buddhistpriests who came to Maligakande temple to study and the land in questionwas purchased with that object in view. Her husband did not purchasethe land in his own name as he thought there might be litigation inconnection with it.
After the land was purchased in the defendant’s name the plaintiffcommenced to build a hciuse, outhouses were first erected and the defend-ant went to live in them at the plaintiff’s request. The house wascompleted in 1926, and the defendant from that date has resided in thehouse. The plaintiff’s husband died in 1927. In June, 1928, the plaintiffdemanded that the defendant should execute a transfer of the property(P 14), but the defendant refused to do so.
The defendant’s evidence was to the effect that he purchased the landand erected the house with his own money, that he had been on terms ofillicit intimacy with the plaintiff since 1908, and that in 1926, he disrobedhimself, in consequence of such intimacy, that the plaintiff requestedhim to marry her after her husband’s death and was angry with himwhen he refused, that he got married to another woman in September,1928, and the plaintiff refused to speak to him after that date.
At the conclusion, however, of his evidence he admitted, in an answerto a question by the Court, that the whole of the building was put up bythe plaintiff for him and the property was bought for him by the plaintiffas a gift.
The Judge having very carefully considered the evidence, both oraland documentary, came to the conclusion that the plaintiff and thedefendant were on terms of illicit intimacy, that the plaintiff and her
POYSER J.—Silva v. Ratnayake.
247
witnesses were not speaking the truth in stating that the land was boughtin the defendant’s name in trust for her, that the plaintiff’s,false casewas met by a false defence, and such defence was filed as the plaintiffthought that a person building on another’s land would receive compensa-tion and that he would have to compensate the plaintiff.
The truth of the case the Judge finds is contained in the last twoanswers of the defendant, viz., that the land was gifted by the plaintiffto the defendant and that the building was the joint endeavour of theplaintiff and the defendant and that the greater part of the money camefrom the plaintiff.
At the conclusion of the case, it was argued on behalf of the plaintiff,that she was entitled to compensation. The Judge however held, andrightly so in my opinion, that there was no question of bona fide or malafide possession in the case : the land was gifted to the defendant and shedid as much as she could to meet the expense of building a house on it,consequently she was not entitled to compensation, and in view of hisfinding of fact he dismissed the plaintiff’s action.
In regard to the facts all the circumstances of the case support theJudge’s finding that the plaintiff and the defendant were for a long periodon terms of illicit intimacy. The plaintiff was apparently infatuatedwith the defendant and did as much as she could for him. The defendanthowever in 1928 began to get tired of the plaintiff and desired to severtheir connection.
This fact is clearly indicated by the plaintiff’s letter (D 5) of May 7,1928, and this letter was followed by her proctor’s letter (P 14) of June 26,1928.
As the facts found by the Judge clearly establish that there was notrust he was clearly right in dismissing the action as framed.
It has however been argued on appeal, that as the defendant finallyadmitted that his defence was false and that the land and money weregifted to him, further issues should have been framed in regard to whethersuch gifts were valid or recoverable by the plaintiff, and the case shouldbe sent back for that purpose.
In my view, no good object would be served by sending the case backfor such issues to be framed. Under the Roman-Dutch law the Courts, nodoubt, would not enforce a contract made for immoral consideration; butwhen a gift has been made for such consideration, it cannot be recovered.In support of this proposition I think I need only cite the followingpassage in the judgment of Middleton J. in the case of Sendris A-ppu v.Santakahamy1: —
“ It seems to me that the principle adopted by the Cape SupremeCourt that it will not lend its power and authority to the enforcementof contracts made for illegal or immoral consideration is the correctview of the law. That Court, while admitting that there was a conflictof opinion arising from the Roman-Dutch law authorities, inclined tothe view that a concubine or prostitute would not be able to sue foranything promised her in consideration of illicit intercourse; but thatif the thing promised had been transferred, it could not be taken fromthe concubine or prostitute, following the maxim of the civil law ;
113 N. L. R. 239.
248
SOERTSZ A.J.—Nair v. Velupillai.
quum per delictum, est duorum semper oneratur petitor et malior habeturpassessoris causa (when both persons are in the wrong the burdenalways lies on the claimant, and the possessor is in the better legalposition (2 Nathan 552) ). Applying that principle here, the intervenientis, in the eye of the law, in possession of the property granted by thedeed of gift, and her possession must prevail as against the plaintiff’sclaim for the partition of the land. ”
The principles laid down in this case must also be applied to the caseof where a woman makes gifts to her paramour. In this case not only thegift of the land but also the gifts of money for the building of the housewere made during the time the illicit relationship existed between theparties, . and on account of such relationship. Such, gifts are notrecoverable.
The appeal must consequently, in my opinion, be dismissed. I wouldhowever vary the order in the lower Court as to costs. The defendanthas been awarded his costs. I do not consider he should receive them,in view of his defence which resulted in the trial taking much longer thanit need have done, and also in view of his perjury.
I would consequently order that the decree be varied by ordering thateach party pay its own costs, and for the same reason I would make noorder as to costs in this Court. Subject to this variation in the decreethe appeal is dismissed.
Soertsz A.J.—I agree.
Appeal dismissed.