1935   Present: Poyser J. and Soertsz A.J.

SILVA v. RATNAYAKE.

 385-D. C. Colombo, 30,036.

Donation-Immoral consideration-Right of donor to recover-Roman-Dutch law.

Under the Roman-Dutch law a woman cannot recover property gifted by her to her paramour.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera, for appellant.

Weerasooria (with him J. L. M. Fernando), for respondent.

July 30, 1935. POYSER J.-

The plaintiff alleged that, in 1922, she purchased a share of the land called Bogahawatta in the name of the defendant and had erected buildings thereon to the value of Rs. 7,000, that the defendant held the property in trust for her and had undertaken to convey it to her when requested but had wrongfully and fraudulently refused to do so.

The defendant, in his answer, denied that the plaintiff purchased this land or erected any buildings therein but alleged that he purchased the land in question with his own money and that the buildings were erected at his own expense. He admitted borrowing sums of money amounting to Rs. 750 from the plaintiff for the purpose of erecting the said buildings, but alleged that he paid back Rs. 650 of that amount and that the plaintiff retained goods of his to the value of Rs. 300. He did not however make any claim in reconvention.

The following are the material issues that were framed :-

(1) Did the plaintiff purchase the land in dispute by deed No. 24 of July 27, 1922, in the name of the defendant in trust for the plaintiff ?

(2) Did the plaintiff improve the said land and erect a building thereon ?

The plaintiff's evidence was to the following effect:-That the defendant, who had been a Buddhist priest but had given up his robes, came to her house in 1922, in search of employment. Her husband assisted him both financially and in other ways. She further stated that her husband wished to buy a property and put up a Sangha Vasa for the use of Buddhist priests who came to Maligakande temple to study and the land in question was purchased with that object in view. Her husband did not purchase the land in his own name as he thought there might be litigation in connection with it.

After the land was purchased in the defendant's name the plaintiff commenced to build a house, outhouses were first erected and the defendant went to live in them at the plaintiff's request. The house was completed in 1926, and the defendant from that date has resided in the house. The plaintiff's husband died in 1927. In June, 1928, the plaintiff demanded that the defendant should execute a transfer of the property (P 14), but the defendant refused to do so.

The defendant's evidence was to the effect that he purchased the land and erected the house with his own money, that he had been on terms of illicit intimacy with the plaintiff since 1908, and that in 1926, he disrobed himself, in consequence of such intimacy, that the plaintiff requested him to marry her after her husband's death and was angry with him when he refused, that he got married to another woman in September, 1928, and the plaintiff refused to speak to him after that date.

At the conclusion, however, of his evidence he admitted, in an answer to a question by the Court, that the whole of the building was put up by the plaintiff for him and the property was bought for him by the plaintiff as a gift.

The Judge having very carefully considered the evidence, both oral and documentary, came to the conclusion that the plaintiff and the defendant were on terms of illicit intimacy, that the plaintiff and her

witnesses were not speaking the truth in stating that the land was bought in the defendant's name in trust for her, that the plaintiff's false case was met by a false defence, and such defence was filed as the plaintiff thought that a person building on another's land would receive compensation and that he would have to compensate the plaintiff.

The truth of the