IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Sirimewan Maha Mudalige Kalyani Sirimewan, Udukekulawala, Bujjomuwa.

Plaintiff SC/APPEAL/47/2017 WP/HCCA/KUR/165/2011(F)

DC KULIYAPITIYA NO. 15707/L Vs.

Herath Mudiyanselage Gunarath Menike, Hemudawa, Sandalankawa.

Defendant AND Sirimewan Maha Mudalige Kalyani Sirimewan, Udukekulawala, Bujjomuwa.

Plaintiff-Appellant Vs.

Herath Mudiyanselage Gunarath Menike, Hemudawa, Sadalankawa.

Defendant-Respondent AND NOW BETWEEN Sirimewan Maha Mudalige Kalyani Sirimewan, Udukekulawala, Bujjomuwa. Plaintiff-Appellant-Appellant Vs.

Herath Mudiyanselage Gunarath Menike, Hemudawa, Sadalankawa.

Defendant-Respondent-

Respondent Before: Hon. Chief Justice Jayantha Jayasuriya, P.C.

Hon. Justice S. Thurairaja, P.C.

Hon. Justice Mahinda Samayawardhena Counsel: S.N. Vijithsingh with Tharushi Ishanka for the Plaintiff-

Appellant-Appellant.

Upul Kumarapperuma, P.C. with Radha Kuruwitabandara for the Defendant-Respondent-Respondent.

Argued on: 13.02.2024 Written Submissions:

By the Plaintiff-Appellant-Appellant on 13.03.2024 By the Defendant-Respondent-Respondent on 14.03.2024 Decided on: 10.05.2024 Samayawardhena, J.

The plaintiff filed this action against the defendant in the District Court of Kuliyapitiya on 26.12.2007 seeking cancellation of the deed of gift No. 14869 dated 12.10.2002 on the basis that the said deed was executed by the plaintiff’s late father in favour of the defendant under undue influence and threats by the latter. The defendant sought dismissal of the plaintiff’s action on the basis that it was a voluntary act of the donor. After trial, the District Court dismissed the plaintiff’s action. On appeal, the High Court of Civil Appeal affirmed the judgment of the District Court. The plaintiff appealed to this Court from the judgment of the High Court.

According to the uncontradictory evidence led in the inter partes trial in the divorce case between the plaintiff’s father and the mother (V1), the plaintiff’s mother left the matrimonial home on 23.12.1972. By judgment dated 16.03.2000, the District Court had granted the divorce in favour of the plaintiff’s father on the ground of malicious desertion on part of the plaintiff’s mother. The father had paid a sum of Rs. 2,500,000 as ex gratia payment to the mother. At the inquiry before the Magistrate into the death of the plaintiff’s father, the plaintiff’s mother had testified that she left the matrimonial home in 1973.

At the trial in the instant case, the plaintiff in her evidence stated that the defendant had been living with the plaintiff’s father since 1985 as his mistress. She further stated that approximately 2-3 months after the defendant’s arrival, her father expelled the plaintiff’s mother from the matrimonial home, and the plaintiff also accompanied the mother.

This evidence of the defendant is contrary to the unchallenged evidence led in the parents’ divorce case. I must emphasise that the divorce trial was not ex parte but inter partes where the plaintiff’s mother was represented by a lawyer.

The impugned deed had been executed on 12.10.2002 after entering the judgment in the divorce case on 16.03.2000 but before the decree nisi was made absolute. The plaintiff’s father got married to the defendant on 02.05.2003 after the decree nisi was made absolute. There was no rationale for exerting undue influence on the plaintiff’s father to execute the deed in favour of the defendant because by that time the divorce proceedings had practically concluded without any opposition from the plaintiff’s mother, who had also received a significant sum of money as ex gratia payment.

The plaintiff’s father died on 16.05.2006. If the defendant started living with the plaintiff’s father as husband and wife from 1985, executing the impugned deed in favour of the defendant in 2002 does not raise suspicion at all.

The evidence of other witnesses called by the plaintiff including the Buddhist priest in the village temple does not support the plaintiff’