Stella Perera v Silva
STELLA PERERAvSILVASUPREME COURTDR. AMERASINGHE, J.
SC 166/97SC SPL LA 223/97CA 280/91 (F)
DC NEGOMBO 339/LNOVEMBER 1,2001
Revocation of Gift – Ingratitude – Best evidence rule – Prescription Ordinancesection 3 – Right of Conjugal ‘Nest’- Right to eject husband/wife ? – Does itdepend on ownership ? – Occupation of husband/wife is it by license ofhusband/wife ? Actio personalis moritur cum persona – litis contestatio ?
The plaintiff-respondent and the 1st defendant, wife and husband had nochildren of their own and they adopted one S-2nd defendant as their child. The3rd defendant is the husband of the 2nd defendant. The 1st defendant giftedthe matrimonial house to his wife the plaintiff in 1963 and following abreakdown of the relationship with her husband – 1 st defendant the plaintiff leftthe matrimonial house in 1982. As the plaintiff was displeased that the 2nddefendant had refused to marry the plaintiff’s nephew she gifted the propertyto her nephews. Later, the plaintiff obtained a retransfer and sought to evict herhusband, adopted daughter and her family.
The 1st defendant husband sought an order to revoke the gift made to his wifeon the ground of ingratitude. The District Court revoked the Deed, anddismissed the plaintiff’s action. The Court of Appeal set aside the judgment ofthe District Court.
A deed could be revoked on the ground of ingratitude.
There was sufficient evidence of misconduct on the part of the plaintiffmanifesting ingratitude.
Sri Lanka Law Reports
 3 Sri L.R
In the present day, it is not true that the best evidence must or evenmay always be given. All admissible evidence is generally equallyaccepted.
Adverse possession- between spouses in relation to their matrimonialhome-could not have commenced till the complete breakdown of therelationship between the plaintiff and the 1st defendant husband- andthat took place only in 1982. After making the gift of the matrimonialhome to the plaintiff in 1963 the 1st defendant not only continued to livein that house but also effected substantial extensions etc. at his ownexpense.
Per Amerasinghe, J.
“In my view the District Judge was quite right in refusing to eject the 1stdefendant for as a matter of law the right of occupation of the conjugalnest did not depend on ownership, where the husband is the owner ofthe property occupied by the couple he has no right, while the marriageis in existence to eject his wife from or without providing her withsuitable alternative accommodation. Her occupation is not by licence ofher husband but is sui generic. Similarly the wife too has no right toeject her husband from the matrimonial house because the propertybelongs to her”.
The husband has rights flowing from the marriage which in relation tothat property put him in a category differing ‘toto coeli’ from that of astranger.
The 1st defendant died, pending appeal however by this time he had ajudgment in his favour in respect of his claim to have the donation to hiswife revoked and for possession. The stage of ‘litis contestatio’ havingbeing reached the 1st defendant’s action did not die with him. Themaxim actio personalis moritur cum persona had no application.
APPEAL from the judgment of the District Court of Negombo
Cases referred to :
Dona Podi Nona Ranaweera Menike v Rohini Senanayake – 1992 2Sri LR 180.
Krishnaswamy v Thillaiyampalam -59 NLR 265
Manuelpillai v Naliamma – 51 NLR 221
Barnes v Trompowsky – 1797 -7 TR 265
Badenhorst v Badenhorst – 1964 -2 SA 676
Buck v Buck 1974 – 1 SA 609
N. J. Canekaratne v R. M. D. Canekaratne – 61 NLR 522
Mrs. A. E. Alwis v D. S. Kuiatunga – 73 NLR 337
Stella Perera v Silva
Fernando v Livera – 29 NLR 246
Dheerananda Thero v Ratnasara Them – 60 NLR 7
Krishnasamy Vengadasalam v Adika Pundagam – 79 NLR 150P. A. D. Samarasekera PC with Vasa Jayasekara for petitioner.
W. Dayaratne with Rajika Jayawardane for respondent.
November 9, 2001AMERASINGHE, J.
Dewadura Margret Silva, hereinafter referred to as the plaintiff, 01was the wife of Lewisdura Jeramias Solomon, hereinafter referredto as the first defendant. The plaintiff and first defendant had nochildren of their own and they adopted Lewisdura Maureen StellaPerera, hereinafter referred to as the second defendant, as theirchild under the Adoption of Children Ordinance. Mirihana AratchigeNihal Pedrick Perera, the third defendant, is the husband of thesecond defendant.
The premises in suit, No. 124, Weliamuna Road, Hekitta,Wattala, was the matrimonial home of the plaintiff and the first 10defendant. After the marriage of the second and third defendants in1978 they lived in the premises in suit until 1979 when they movedinto a house situated opposite the premises in suit. The plaintiff andthe first defendant continued to live at the premises in suit until,following a breakdown of the relationship with her husband, theplaintiff left her matrimonial home sometime in January 1982. Thereis uncertainty with regard to the exact date. The plaintiff became a‘sil matha’ and went to reside in an ‘aramaya’. The first defendantbecome unwell and the second and third defendants moved backinto the premises in suit to look after the ailing first defendant who 20became paralysed.
The premises in suit belonged to the first defendant. Nine yearsafter his marriage, the first defendant, by Deed No. 216 dated 2ndMay 1963, gifted the premises to his wife, the plaintiff. Therelationship between the plaintiff and first defendant were cordialand the plaintiff in her evidence did say that there was nothingwrong with the first defendant. Indeed not, for he was so a dutifulhusband that he handed over all his earnings every month to his
Sri Lanka Law Reports
 3 Sri L.R
wife. The deterioration in family relationships seems to havecommenced when the second defendant, with the blessings of the 30first defendant, married the third defendant. The plaintiff wasdispleased that the second defendant had refused to marry theplaintiff’s nephew, Benedict Milton de Silva. The second and thirddefendants moved out of the premises in suit in 1979 after theunpleasantness reached a less than tolerable level. When theplaintiff decided to leave home, instead of transferring the premisesin suit to the second defendant, her adopted daughter, she by DeedNo. 930 dated 30th January 1982 gifted it to her two nephews, oneof whom was Benedict Milton de Silva. Later, by Deed No. 163dated 1st August 1984, the plaintiff obtained a retransfer of the 40premises and proceeded to file an action in the District Court ofNegombo for a declaration of title in her favour and for the evictionof her own husband, adopted daughter and the adopted daughter’shusband from the premises in suit.
The first defendant responded by seeking an order of revocationof the gift made by Deed No. 216 dated 2nd May 1963 on theground of ingratitude and a declaration that the gift made by theplaintiff to her nephews by Deed No. 930 was null and void.
The learned District Judge, after hearing and duly weighing theevidence, in a principled and carefully reasoned judgment, made 50order dismissing the plaintiff's action and revoked Deed No. 216 asprayed for by the first defendant.
The Court of Appeal, however, set aside the orders of thelearned District Judge.
There is no doubt that a gift could be revoked on the ground ofingratitude. (1) Voet, Pandects, 39.5.23; Dona Podi NonaRanaweera Menike v Rohini SenanayakeW, Krishnaswamy vThillaiyampalami2), Manuelpillai v NallammaW.
The learned Judge of the Court of Appeal however had difficultywith regard to the proof of ingratitude. He said:60
“The 1st defendant being bed-ridden was unable to giveevidence. He being the person who would have offered the bestevidence on the acts of ingratitude on the part of the plaintiff hasnot applied to Court to have his evidence recorded on a
SCStella Perera v Silva237
(Amerasinghe, J. )
commission under section 420 of the Civil Procedure Code. Hisdaughter the 2nd defendant has spoken of certain alleged acts ofingratitude of the plaintiff which are insufficient for a Court to basean order of revocation.”
The maxim that ‘the best evidence must be given of which thenature of the case permits’, was once regarded as expressing thegreat fundamental principle upon which the law of evidencedepends. Today, however, the rule is of little practical importance,and indeed J. D. Heydon and M. Ockeleton (Evidence – Laws andMaterials 4th ed. 1996 p. 9) refer to it as an ‘evidentiary ghost’.Phipson on Evidence (15th ed. 2000) p. 127 succinctly states thecurrent position : “In the present day, then, it is not true that the bestevidence must, or even may, always be given, though its non-production may be a matter for comment or affect the weight of thatwhich is produced. All admissible evidence is generally equallyaccepted.” In the instant case, the daughter of the first defendant,who lived for a time under the same roof as the first defendant andlater short distance across the street, had personal knowledge ofthe facts she spoke to and the learned District Judge unhesitatinglyaccepted her evidence. Admittedly, the provision of section 420may have been availed of. However, there was, in the opinion ofthe District Judge, sufficient evidence of misconduct on the part ofthe plaintiff manifesting ingratitude. It is a finding of fact that shouldnot be interfered with on the basis that the first defendant’sevidence might have been obtained by issuing a commission forthe examination of the ailing first defendant since there was othercogent evidence to support the finding. The old ‘best evidence’ rulein that regard had been relaxed as far back as 1797 when LordKenyon allowed proof of the handwriting of the attesting witnessresident abroad, instead of sending out a commission to examinehim. Barnes v Trompowstt*). In any event, how should onecharacterize the act of a wife who donates her matrimonial home(gifted to her by her generous and caring husband) to her nephewsat the time when her husband lay grievously unwell in that home,and then herself attempts to have him ejected after obtaining aretransfer of the home when her nephews refuse to have the manejected ?
Sri Lanka Law Reports
(2004) 3 Sri L.R
The learned Judge of the Court if Appeal had a second groundfor setting aside the order of the District Court. He said :
“In any event, this relief is sought ten years after the executionof Deed P3 and is prescribed under Section 3 of the PrescriptionOrdinance. Therefore the judgment of the District Judge grantingthat relief to the 1st defendant is set aside, as it is clear the plaintiffhas possessed the property as her own and dealt with it as suchwithout recognizing the title thereto in any other.”
This, with due respect, is untenable, for any adverse possession 110- if that were possible at all between spouses in relation to theirmatrimonial home – could not have commenced till the completebreakdown of the relationship between the plaintiff and the firstdefendant and that took place only in 1982. After making a gift ofthe matrimonial home to the plaintiff in 1963, the first defendant notonly continued to live in that house but also effected substantialextensions and improvements to the premises at his own expense.
Finally, the learned Judge of the Court of Appeal said :
“The 1st defendant had died pending appeal. The learnedDistrict Judge has held that the plaintiff will not be entitled to 120 'recover possession or damages from the defendants as the 1stdefendant had a right to remain in occupation of the premises asthe lawful husband of the plaintiff. Counsel conceded that theappeal from that finding of the District Judge is of academic interestnow.”
The learned District Judge, in my view, was quite right inrefusing to eject the first defendant for, as a matter of law the rightof occupation of the conjugal ‘nest’ did not depend on ownership.Where the husband is the owner of the property occupied by thecouple, he has no right, while the marriage is in existence, to eject 130his wife from it without providing her with suitable alternativeaccommodation. Her occupation is not by licence of her husbandbut is sui generis. Similarly, the wife has no right to eject herhusband from the matrimonial home merely because the propertybelongs to her. Because he is her husband he has rights flowingfrom the marriage which in relation to that property put him in acategory differing toto coelifrom that of a stranger. All this is subjectto the forfeiture of the right in certain circumstances; but forfeiture
Stella Perera v Silva(Amerasinghe, J.)
was not an issue in this case. H. R. Hahlo, The South African Lawof Husband and Wife, 5thed. (1985) pp. 143-144; Bromley’s Family 140Law, 7th ed. 547 Badenhorst v Badenhorst5), Buck v BucM6), Cf.
N. J. Canekeratne v R. M. D.Canekeratne (?), Mrs. A. E. Alwis v D.
S. Kulatunge (8). Admittedly, the 1st defendant died pending theappeal in the Court of Appeal. However by that time he had ajudgment in his favour in respect of his claim to have the donationto his wife revoked and for possession. The stage of litis contestatiohaving been reached, the first defendant’s action did not die withhim. The maxim actio personalis moritur cum persona had npapplication. Cf. Fernando v Livera <9), Dheerananda Thero vRatnasara Thero,0°) Krishnasamy Vengadasalam v Adika 150Pundagam Karuppam.W
For the reasons set out in my judgment, I set aside thejudgment of the Court of Appeal with costs and affirm the Order ofthe District Court.
WADUGODAPITIYA, J.-I agree.
BANDARANAYAKE, J.-I agree.