WANIGARATNE et al. v. SELOHAMY et al

088-NLR-NLR-V-42-WANIGARATNE-et-al.-v.-SELOHAMY-et-al.pdf


Wanigaratne v. Selohamy.
353
1941Present: Howard CJ. and Keuneman J.
WANIGARATNE et al. v. SELOHAMY et al.
21—D. C. Kurunegala, 19£22.
Donation—Gift to concubine—Validity—Roman-Dutch law.
A gift to a concubine is not prohibited by the Roman-Dutch law.Such a gift cannot be revoked by the donor.
. Parasatty Ammah et al. v. Setupulle (3 N. L. R. 271) followed.
> 13 Ch. Div. 774.
12J. N. B 17628 (5/S2)
354
HOWARD C.J.—Wanigarafne v. Selohamy.
T
HE plaintiffs as heirs of one Mango Nona claimed title to the landin suit by virtue of a deed of gift made in favour of the said Mango
Nona by Podisingho Appuhamy.
The defendants maintained that the said Podisingho had revokedthe said deed of gift and transferred the land to the 1st and 2nddefendants.
The learned District Judge dismissed the plaintiffs’ action on theground that the deed of gift in favour of Mango Nona was executed byPodisingho to induce her to live in concubinage with him anc^ thatPodisingho was entitled to revoke the deed of gift.
N. E. Weerasooria, K.C. (with him E. B. Wikremanayake andStanley de Zoysa), for plaintiffs, appellants.—The parties are Low-country Sinhalese. Roman-Dutch law applies. Roman-Dutch lawdid not prohibit gifts to concubines. (Parasatty Ammah v. Setupulle '.)There is no evidence that the gift was given to induce the woman to livein illicit intercourse or to continue to live in such intercourse, she beingotherwise desirous to break it off. (Sendris Appu v. Santakahamy )
L. A. Rajapakse (with him D. Abeywickreme), for defendants, respond-ents.—Even if the gift was not “ ipso jure ” void the deed conveyedat the most a defeasible title. The donor could revoke the gift. (WalterPereira) Laws of Ceylon, p. 604; Van Leeuwen, Censura Forensis bk. I.,chap. 4, s. 12, p. 11. Defendants are in possession. Plaintiffs cannot recoverpossession by suing on a deed of gift which has been given for immoralconsideration. (Silva v. Ratnayake ’.) The Court will not lend its powerto the enforcement of contracts made for immoral consideration (2 Nathan552 ; 3 Maasdorp 26).“ In pari delicto potior est conditio defendantis.”
Counsel cited Brandt v. Bergstedt'; United Provident Assurance Assoc.of S. A., Ltd. v. Vivian *.
E. B. Wikremanayake, in reply.—By the Roman-Dutch law a deed ofgift is irrevocable except in certain circumstances (2 Nathan 1028).Even gifts to prostitutes were not prohibited. (Van Leeuwen, CensuraForensis bk. I., chap. 4, s. 12, p. 9.)
Cur. adv. vult.
February 14, 1941. Howard C.J.—
This, is an appeal by the plaintiffs from a judgment of the DistrictCourt of Kurunegala dismissing their claim for a declaration of title tocertain land, for possession of the same and for damages with costs.The plaintiffs as heirs of one Mango Nona claioied by virtue of a deed ofgift of June 18, 1915, made by a certain Podisingho Appuhamy in favourof the said Mango Nona. The defendants claimed that the said Podi-singho Appuhamy revoked the said deed of gift and transferred the saidland to the first and second defendants by deed of May 15, 1935. Indismissing the plaintiffs’ action the learned Judge found that the deed ofgift in favour of Mango Nona was executed by Podisingho Appuhamyin order to .induce Mango Nona to live in concubinage with him. Inthese circumstances the learned District Judge held that Podisingho
R. 271.
‘ (1917) C. P. D. 344.
1 13 N. L. R. 237.3 37 N. L. R. 245.
* (1930) (S.A.) L. R. O. P. D. 364.
HOWARD C.J.—Wanigaratne v. Selohamy.
355
Appuhamy was entitled to revoke such deed of gift. Counsel for theappellants has maintained that there was no evidence to justify theconclusion that the deed of gift was executed by Podisingho in order toinduce Mango Nona to live in concubinage with him. Counsel for therespondents has not in this Court sought to uphold this finding. I am ofopinion that this contention is right and there was no evidence on whichthe District Judge could arrive at such a conclusion.
It is, however, maintained by Counsel for respondents that, even ifMango Nona was not induced to live in concubinage by reason of thedeed of gift, Podisingho was entitled by Roman-Dutch law to revoke thedeed of gift inasmuch as Mango Nona was his concubine. It is notdenied by the appellants that Mango Nona was-the mistress of Podisingho.This relationship does not in itself render the deed of gift invalid.Nowhere, in any of the authorities on Roman-Dutch law, is it laid downthat a gift to a concubine is null and void in the sense that it is prohibitedby law. Thus in Van Leeuwen’s Censura Forensis translated by Barberand Macfadyen, pt. 1, bk. IV, chap. 12, para. 9, it is stated asfollows : —
“ But on the ground of affection, neither honourable gifts to well-deserving friends, nor dishonourable gifts to prostitutes and concubines,
were by law prohibited. ”
The principle adopted by the Cape Supreme Court is that it will not lendits power and authority to the enforcement of contracts made for illegalor immoral consideration. Hence a concubine or prostitute would not beable to sue for anything promised her in consideration of illicit inter-course. But if the thing promised had been transferred, it could not betaken from tbe concubine or prostitute following the maxim of the civillaw : quum par delictum est duorum semper oneratur petitor et meliorhabetur possessoris causa (when both persons are in the wrong the burdenalways lies on the claimant, and the possessor is in the better legalposition, 2 Nathaii 613). The principle to which I have referred wasapplied in the case of the United Provident Assurance Assoc, of S. A.,Ltd. v. Vivi&i The principle has also been recognized in variousCeylon cases. Thus in Parasatty Ammah et al. v. Setupulle 1 it1 was heldby Creasy C.J. that the Roman law prohibition against donationsto wives did not extend to donations to concubines. He further heldthat it was unquestionably within the province of a Judge in'cases of thiskind to inquire imtov the true nature of the transaction. And if it isclearly proved that the nominal gift was really made by the man in orderto induce the woman to come and live in illicit intercourse with him,or to continue to live in such intercourse, she being otherwise desirousto break it off, it would be the duty of the Judge to pronounce it to be acontract ex turpi causa and to refuse support of the law to it. Thelearned Chief Justice proceeded to hold that there was no such proofand all that appeared on the face of the deed was that the donor said thedonee was now his concubine which was mere matter of description.The donee stated that the donor gave it to her because she was living
» (1930) (S.A.) L.R.C. P. D. 364.* 3 N. L. R. 271.
356HOWARD C-J.—Wanigaratne v. Selohamy.
with him in concubinage. It was a clear case of a donation. made to ameretrix under the influence of an inhonesta affectio, which was certainlya kind of donation which the Roman-Dutch law declares not to beprohibited by law. It is to be observed that in the case of ParasattyAmmah et al. v. Setupulle (supra) the defendant’s claim was upheldalthough the plaintiff was in possession. The same principle wasformulated in Sendris Appu v. Santakahamy 1 where it was held that adeed of gift made in consideration of past cohabitation is not invalid forthat reason. A concubine would not be able to sue for anythingpromised her in consideration of illicit intercourse ; but if the thingpromised had been transferred, it could not be taken from the concubine.Nothing contrary to this principle can be deduced from the case of Silvav. Ratnayake' where it was held that under Roman-Dutch law a womancannot recover property gifted by her to her paramour. By Roman-Dutch law a deed of gift, save in certain circumstances, is irrevocable.If made for immoral consideration it is revocable, but the Courts will notassist a party to take advantage of her moral turpitude in order to recoverthe property gifted.
In so far as the facts of this case are concerned the gift as in ParasattyAmmah et al. v. Setupulle (supra) was one which was not prohibited byRoman-Dutch law. It has been urged that the gift having been madeto a concubine could by Roman-Dutch law be revoked. In this connec-tion we have been referred to paragraph 11 in Chapter 12 of Part I.,Book IV. of Censura Forensis, where it is stated as follows : —
“.•. and whatever is given to concubines, as such, ‘inter ,
vivos1'or is left by last will, can be revoked and taken from them asbeing dishonourable and unworthy.”
To this statement there is appended a footnote by the translators asfollows : —
“ But see Lib. 3, cap. 4, num. 41, where our author rightly tells usthe contrary.”
This statement of the law is not confirmed either in de Sampayo’s treatiseon Voet, bk. 39, tit. 5, para 22, or in the 4th Edition of Maasdorp,Voi. III., 115, where the revocation of gifts is considered.
It is obvious that this statement in Van Leeuwen so challenged andunsupported by case law or any other authority cannot be regardedas an accurate statement of the law. Even if it was, I am of opinionthat in the present case it has not been established that the gift to MangoNona ,was to a concubine “ as such ”. The terms of the deed of giftreferring as they do to the love and affection borne by the donor towardsMango Nona, who is described as his beloved wife, rebut any suchpresumption or inference.
In view of the decision at which I have arrived, that the deed of revoca-tion was not valid, I find it unnecessary to consider whether such a deedcould be obtained without a. decree of Court.- The judgment of the> 13 N. L. R. 237.* 37 N. L. S. 245.
WXJEYEWARDENE J.—De Zoysa v. Subaweera.
357
learned Judge must be set aside and judgment entered for the appellants,with the exception of the claim for damages which has not been proved,together with costs in this Court and the District Court
Keuneman J.—I agree.
Appeal allowed.