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SENDRIS APPU v. SANTAKAHAMY
NLR13V237
Present : Mr. Justice
Middleton and Mr. Justice July22,1910
Wood Renton.
SENDRIS APPU v. SANTAKAHAMY.
D. C, Tangalla, 992.
Deed of gift to concubine in consideration
of past cohabitation and in contemplation of future cohabitation-Valid-Completed
gift.
A deed of gift made in consideration of past cohabitation and in contemplation
of future cohabitation is not invalid for that reason.
A concubine would not be able to sue for anything promised her in consideration
of illicit intercourse; but if the thing promised had been transferred, it could
not be taken from the concubine.
THE
facts of this case are fully set out in the judgment of Middleton J.
Bawa, for the appellant.-The deed of gift in favour of respondent is void, as
the consideration for the gift is illicit intercourse. A concubine cannot sue
for anything promised her in consideration of illicit intercourse. (See 2 Nathan
552, section 767.) Although the law will not disturb possession based on such
deeds, it will not
enforce a deed of this character. (Counsel
also referred to Voet, 24,1, 15.) Karonchchihamy v. Angohamy 1 is on
all fours with the present case and is a binding authority. The judgment
reported in (1904) 8 N. L. R. 1 does not touch the point now under discussion.
Although Robot v. Silva2 gives a testator unlimited powers of devise,
it does so on the ground that the Statute Law has modified the Roman-Dutch Law.
Rabat v, Silva does not touch the question of donation.
Van Langenberg, for the respondent.-The gift was accepted, and it is
therefore a completed gift; it is not an executory contract. Such a gift as the
present one is valid; it could not be taken away from the concubine on the
ground that the consideration was illicit intercourse. Parasatty Ammah et al v.
Settupulle 3 is a binding authority. Rabot v. Silva is also an
authority in favour of the respondent. The Statute merely permitted parties who
lived in adultery to marry one another; the Privy Council said that the right to
devise was a necessary corollary to the right to marry. Counsel also cited 3
Maasdorp 21.
Bawa, in reply.
Cur. adv. vult.
July 22, 1910. MIDDLETON J.-
This was a partition action begun by the plaintiff's father, Don Davit, who
having died pending .the action, his mistress, the inter-venient respondent,
claimed on a deed of gift of the land to her. The. District Judge dismissed the
partition action, upholding the deed of gift, and the plaintiff appealed on the
ground that the deed must be held to be an invalid and void deed for immorality.
Don Davit was a married man, and apparently kept the respondent with the consent
of his wife, who was a invalid woman. The deed is expressed as follows: " For
and in consideration of the affection I have for my mistress Saniakahamy, who is
now of help to me, and of receiving help from her hereafter, I do hereby grant,
assign, set over, and assure by way of gift, to vest after my demise, retaining
the possession for myself during my lifetime, unto K. K. Santaka-hamy the
following property ..." In a letter clause the deed stated: "Therefore I do
hereby declare that my heirs, executors, administrators, and assigns have no
right or title, save and except my life interest, henceforth over the premises
gifted above, and in succession to me Kodituwakku Kankanage Santakahamy
aforesaid, her heirs, executors, administrators, and assigns, may possess the
same, or do anything therewith according to wish." The gift was duly accepted in
the deed of gift by the donee.
Foot Notes:
1 (1896-1897) 2 N. L. R. 276.
2 (1909) 12 N. L. R. 81.
3 (1872) 3 N. L. R. 271.
The appellant relied on 2 Nathan 552 and
Karonchchihamy Angohamy [1 (1896-1897) 2 N. L. R. 276. ] as
being a case on all fours with that under consideration, On the other
hand, for the respondent it was contended that J. this Court was bound by the
decision in Parasatty Ammah et al. v. Settupulle,[2 (187
