ARIYAWATHIE MEEMADUMA V. JEEWANI BUDHIKA MEEMADUMA

ARIYAWATHIE MEEMADUMA V.
JEEWANI BUDHIKA MEEMADUMA

SUPREME COURT
AMARATHNGA, J.,
RATNAYAKE, J. AND
EKANAYAKE, J.
S.C.APPEAL NO. 68/2010
W.P./HCCA/COL. 98/2006
D.C. COLOMBO 7402/SPL
OCTOBER  21ST, 2010

Donation of immovable property - Revocation of gifts - Donation given in contemplation of marriage - Impeaching the credit of a witness, not cross - examined by the adverse party - Evidence Ordinance - Section 164 - Using as evidence, of document, production of which was refused on notice - Section 165 - Judges' power to put questions or order production of any document or thing

The District Judge dismissed the Plaintiff Appellant's action on the basis that the Appellant has failed to establish any ground on which donor is entitled to in law to revoke a deed of gift. The appeal filed by the Appellant against the judgment of the District Court too was dismissed by the Civil Appellate High Court. The learned High Court Judge agreed with the view of the learned District Judge that the deed of gift sought to be revoked had been given in contemplation of the Defendant's Respondent's  marriage, and had stated, that a donation given in contemplation of the marriage is not revocable, if t he contemplated marriage had in fact taken place.

Held:

(1) A deed of gift is absolute and irrevocable. There are however certain exceptions to the rule of irrevocability.

Per Gamini Amaratunga, J., -

""A deed of gift is absolute and irrevocable". That is the rule. However. the law has recognized certain exceptions to the rule of

irrevocability. A party applying to Court to invoke the exceptions in his favour has to satisfy Court, by cogent evidence, that the Court would be justified in invoking the exception in favour of the party applying for the same."

"A mere ipse dixit like, 'he threatened to kill me' is not sufficient to discharge that burden."

(2) On the evidence available, no reasonable Judge, properly directed on the law relating to the burden of proof which rested on the Appellant, could have given a decision in favour of the Appellant. The conclusion of the trial Judge and the Civil Appellate Court that the Appellant has failed to establish her case is therefore correct in law.

(3) The Appellant's case had been dismissed not on the basis that the deed of gift is irrevocable but on the basis that the Appellant had failed to prove the grounds relied upon by her  revoke the deed of gift

(4) Sections 164 and 165 of the Civil Procedure Code and Section 165 of the Evidence Ordinance do not require a Judge to step in to fill the gaps of a case presented by a party..

Cases referred to:

1. Dona Podinona Ranaweera Menike V. Rohini Senanayake - (1992) 2 Sri L. R. 1SO

APPEAL from the High Court of the Western Province exercising Civil Appellate Jurisdiction.

Nishantha Sirimanne for the Plaintiff-Appellant

Defendent-Respondent absent and unrepresented

Cur.adv.vult

July 26th 2011

GAMINI AMARATUNGA J.

    This is an appeal, with leave granted by this Court, against the judgment of the High Court of the Western Province exercising civil appellate jurisdiction dismissing the plaintiff

appellant's appeal to the High Court against the judgment of the District Court dismissing the plaintiff appellant's action filed against the defendant respondent.

    The defendant-respondent is the youngest daughter of the Plaintiff-appellant (hereinafter called the appellant). On 11.3.1999, by a Deed of Gift the appellant gifted premises No. 11A, Mahasen Mawatha, Thimbirigasyaya Road, Colombo 5 to the defendant. That is the house where the appellant lived with her husband and the defendant. This gift: is subject to the life interest of the appellant and her husband to that property. On 12.3.1999, the day after the execution of the deed of gift, the defendant married one Sanjeewa Perera. Thereafter the appellant, her husband and the couple continued to live in that h

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