Wanigaratne Et Al. V. Selohamy Et Al.,

 

1941     Present: Howard C.J. and Keuneman J.

 

WANIGARATNE et al. v. SELOHAMY et al

21-D. C. Kurunegala, 29,222.

 

Donation-Gift to concubine-Validity-Roman-Dutch law.

 

A gift to a concubine is not prohibited by the Roman-Dutch law.

 

Such a gift cannot be revoked by the donor.

 

Porosattv Ammah et al. v. Setv.pv.lle (3 N. L. R. 271) followed.

 

THE plaintiffs as heirs of one Mango Nona claimed title to the land in suit by virtue of a deed of gift made in favour of the said Mango Nona by Podisingho Appuhamy.

 

The defendants maintained that the said Podisingho had revoked the said deed of gift and transferred the land to the 1st and 2nd defendants.

 

The learned District Judge dismissed the plaintiffs' action on the ground that the deed of gift in favour of Mango Nona was executed by Podisingho to induce her to live in concubinage with him and. that Podisingho was entitled to revoke the deed of gift.

 

N. E. Weerasooria, K.C. (with him E. B. Wikremanayake and Stanley de Zoysa), for plaintiffs, appellants.-The parties are Low-country Sinhalese. Roman-Dutch law applies. Roman-Dutch law did not prohibit gifts to concubines. (Parasatty Ammah v. Setupulle ) There is no evidence that the gift was given to induce the woman to live in illicit intercourse or to continue to live in such intercourse, she being otherwise desirous to break it off. (Sendris Appu v. Santakahamy 1)

 

L. A. Rajapakse (with him D. Abeywickreme), for defendants, respond­ents.-Even if the gift was not " ipso jure " void the deed conveyed at the most a defeasible title. The donor could revoke the gift. (Walter Pereira) Laws of Ceylon, p. 604; Van Leeuwen, Censura Forensis bk. L, chap. 4, s. 12, p. 11. Defendants are in possession. Plaintiffs cannot recover possession by suing on a deed of gift which has been given for immoral' consideration. (Silva v. Ratnayake 3.) The Court will not lend its power to the enforcement of contracts made for immoral consideration (2 Nathan 552; 3 Maasdorp 26). " In pari delicto potior est conditio defendantis." Counsel cited Brandt v. Bergstedt4; United Provident Assurance Assoc. of S. A., Ltd. v. Vivian5.

 

E. B. Wikremanayake, in reply.-By the Roman-Dutch law a deed of gift is irrevocable except in certain circumstances (2 Nathan 1028). Even gifts to prostitutes were not prohibited. (Van Leeuwen, Censura Forensis bk. I., chap. 4, s. 12, p. 9.)

 

Cur. adv. vult.

 

February 14, 1941. HOWARD C.J.-

 

This is an appeal by the plaintiffs from a judgment of the District Court of Kurunegala dismissing their claim for a declaration of title to certain land, for possession of the same and for damages with costs. The plain

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