SOERTSZ J.—Sivarasipillai v. Anthonypillai.
Present: Soertsz and Hearne JJ.
SIVARASIPILLAI v. ANTHONYPILLAI.
240—D. C. Jaffna, 8,290.
Donation—Action to set aside gift by wife to husband—Cruelty and desertion
—Definition of ingratitude—Roman-Dutch law.
.Where the plaintiff sued the defendant (her husband) to set aside adeed of gift executed by her in his favour on the ground of cruelty anddesertion.—
Held, that the grounds alleged did not fall within the instances ofingratitude for which a gift may be revoked under the Roman-Dutch law.
^^PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera, K. C. (with him J. A. T. Perera), for defendant, appellant.
S. Subramaniam (with him G. E. Chitty), for plaintiff, respondent.
Cur. adv. vult.
July 13, 1937. Soertsz J.—
This is an action instituted by a married woman against her husbandto have a deed of gift executed by her in his favour set aside on the groundthat he has driven her and her children out of the house and that “on'account of this cruelty and desertion a cause of action has accrued to' theplaintiff to have the said deed of donation revoked and set aside”. Itwill be noticed that the plaintiff herself did not expressly aver that thisconduct of the defendant amounted to gross ingratitude. Nor was therean issue framed on that basis. The issues were—
Did the defendant drive the plaintiff and her children out of thehouses where they were living and leave them in a helpless state?
If so, is the plaintiff entitled to have the deed of donation set aside?and two other issues which do bear directly on the point involved in thisappeal. The trial Judge however entered judgment for the plaintiff on
the ground that “ defendant’s conduct appearsto amount
to gross ingratitude ”. Overlooking for the moment the omission I haveindicated on the part of the plaintiff -to allege expressly that she wasseeking to revoke the gift on the ground of gross, ingratitude, I willexamine her case on that footing and begin by asking myself the questionwith which Wood Renton C-J- began his consideration of a similar pointin Hamine v. Goonewardene does such conduct on the part of the defend-ant as is disclosed in the circumstances stated in the pleadings and theplaintiff’s evidence amount to ingratitude within the meaning of theRoman-Dutch law? If one bases oneself on the authority of Voet onefinds that there are five instances of ingratitude expressly mentioned byhim as affording justification for the revocation of gifts, namely, (1) thelaying of impious hands of the donee on the donor; (2) the donee out-rageously defaming the donor; (3) the donee causing the donor enormousloss; (4) the donee plotting against the donor’s life; (5) the donee failingto fulfil the conditions annexed to the gift. Voet, however, goes on to addthat “ it does not seem to admit of doubt that for other similar and graver
> 17 N. L. R. 507.
SOERTSZ J.—Sivarasipillai v. Anthonypillai.
causes donations may be revoked”. (Voet V. 39, 22.) We -have beenreferred to a passage of Perezius on donations in which that commentatorchallenges Voefs extension of the instances of ingratitude to “ othersimilar and graver causes ” as opposed to authority. In these moderntimes, the natural tendency will be to take the view of Perezius andstrictly limit the instances of ingratitude which justify the revocation ofa donation to those expressly mentioned for it will be highly inconvenientand even dangerous to make “ ingratitude ” at large a ground for revoca-tion as respondent’s Counsel contended was the law. For one thing,ingratitude and gratitude are such elastic terms. Their name is legion.
I find considerable difficulty when I attempt to define these words. Irecall the definition of gratitude by some cynic who said that it was alively sentiment of thankfulness towards those from whom favours areexpected, implying thereby that it does not exist so far as past benefactorsare concerned. But that, I concede is going too far. As for ingratitudeI know that it has been said to be “ base ” and “ sharper than a serpent’stooth”. But that, I fear, is not very illuminating. The conclusion Ireach in this state of things is that this matter of ingratitude as a groundfor setting aside donations is not as fluid as respondent’s Counsel soughtto make out. If it is then in the words of Voet " jora omnia atque tribu-nalia non suffectura actionibus contra ingratos movendis
But even acting upon the authority of Voet that donations may berevoked for any of the five instances of ingratitude mentioned by him aswell as for “ other similar and graver causes ” I do not find it possible togrant the plaintiff the relief she claims. Her case certainly does not fallwithin the five enumerated instances. Does it amount to a similar andgraver type of -ingratitude? In my opinion, clearly not. The casereveals a difference of views between husband and wife and it is impossibleto say that the resulting relationship involves ingratitude on one side orthe other. The husband thinks that the wife’s inclinations are toonomadic. She goes about from house to house and he disapproves of-this. This, to use the words of a witness, has led to a “ cat and dog life ”between them. A point was reached when the husband .drove the wifeout. His view apparently is that-if she will not'acknowledge his maritalcontrol, she must live apart. She took the matter to the maihtenanceCourt and although she waived maintenance for herself he agreed to giveher a field to enable her to support herself. This can hardly be describedas ingratitude of “ a-similar and graver kind”. The case of Sansoni v.Foenander1 does not help the plaintiff. The two grounds on which therevocation of the gift was allowed in that case were: (a) failure to observethe conditions imposed, (b) continued slander and insult by the donee ofthe donor—both grounds are among the enumerated instances.
It is also worthy of note that the deed of gift in question in this case isone that was executed as far back as 1926. I would set aside the judg-ment of the trial Judge and dismiss the plaintiff’s action but will not makean order for costs.
Heabne J.^T agree.
1 Vanderslraaltn 144 and (,1872-76) Ramanathan 32.
SIVARASIPILLAI v. ANTHONYPILLAI