IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Mundigala Pathirage Jimonona Perera, No. 164, Mawalgama, Waga.

Plaintiff SC APPEAL NO: SC/APPEAL/140/2017 SC LA NO: SC/HCCA/LA/136/2016 CA NO: WP/HCCA/AV/1571/2015(F)

DC AVISSAWELLA NO: 25097/L Vs.

Rupasinghe Arachchige Diana Priyadarshani, No. 162 A, Kelagahawatte, Mawalgama, Waga.

Defendant AND BETWEEN Rupasinghe Arachchige Diana Priyadarshani, No. 162 A, Kelagahawatte, Mawalgama, Waga.

Defendant-Appellant Vs.

Mundigala Pathirage Jimonona Perera, No. 164, Mawalgama, Waga.

Plaintiff-Respondent AND NOW BETWEEN Mundigala Pathirage Jimonona Perera, No. 164, Mawalgama, Waga.

Plaintiff-Respondent-Appellant Vs.

Rupasinghe Arachchige Diana Priyadarshani, No. 162 A, Kelagahawatte, Mawalgama, Waga.

Defendant-Appellant-Respondent Before: P. Padman Surasena, J.

Yasantha Kodagoda, P.C., J.

Mahinda Samayawardhena, J.

Counsel: Kumaran Aziz for the Plaintiff-Respondent-Appellant.

Defendant-Appellant-Respondent is absent and unrepresented.

Argued on : 03.12.2021 Written submissions:

by Plaintiff-Respondent-Appellant on 10.11.2021.

Decided on: 12.05.2023 Samayawardhena, J.

The plaintiff filed this action against the defendant in the District Court of Avissawella seeking to set aside the deed of gift marked P1 on gross ingratitude. The defendant is a relative of the plaintiff. By this deed the plaintiff donated the property to the defendant subject to her life interest. The defendant filed answer seeking dismissal of the plaintiff’s action. After trial, the District Judge entered judgment for the plaintiff. On appeal, the High Court of Civil Appeal of Avissawella reversed the judgment and dismissed the plaintiff’s action on the ground that gross ingratitude had not been proved. Hence this appeal by the plaintiff.

The general rule is that a deed of gift is absolute and irrevocable. However, under the Roman Dutch law, which is our common law, such a deed of gift can be revoked with the intervention of Court inter alia on ingratitude on the part of the donee. The fact that the term “irrevocable donation” is used in the deed is not decisive.

This is now recognised by statute as well. In terms of sections 2 and 3 of the Revocation of Irrevocable Deeds of Gift on the Ground of Gross Ingratitude Act, No. 5 of 2017, an irrevocable deed of gift may be revoked on the ground of gross ingratitude, only on an order made by a competent court, in an action filed by the donor against the donee within a period of ten years from the date of the execution of the deed and within two years from the date on which the cause of action arose. Slight ingratitude is not sufficient. There shall be gross ingratitude. No hard and fast rule can be laid down on what constitutes gross ingratitude. It is a question of fact, not of law. A single act or a series of acts can constitute gross ingratitude. An assault on the donor by the donee is a clear instance of gross ingratitude. Depending on the facts and circumstances of each individual case, for instance, threats to cause bodily injury to the donor by the donee, continuous slander and insult, damage to the donor’s property, ill-treatment of the donor can constitute gross ingratitude. The onus of proof is on the donor and the standard of proof is on a balance of probabilities. Vide Sinnammah v. Nallanathar (1946) 47 NLR 32, Krishnaswamy v. Thillaiyampalam (1957) 59 NLR 265, Fernando v. Perera (1959) 63 NLR 236, Calendar v. Fernando [2001] 2 Sri LR 355, Ariyawathie Meemaduma v. Jeewani Budhdhika Meemaduma [2011] 1 Si LR 124, De Silva v. De Croos [2002] 2 Sri LR 409, Gunawathie v. Premawathi (SC/APPEAL/31/2013, SC Minutes of 05.04.2019), Wasantha Cooray v. Indrani Cooray [2020] 1 Sri LR 150.

The failure to fulfil the conditions of the gift (such as that the donee shall provide succour and assistance to the donor) is a ground to revoke the gift. This is an incidence of gross ingratitude.

In the leading case of Dona Podi Nona Ranaweera Menike v. Rohini Senanayake [1992] 2 Sri LR 1