Sinnammah V. Nallanathar

1946 Present: Jayetileke and Rose JJ.

SINNAMMAH, Appellant, and NALLANATHAR, Respondent.

221-D.C.Jaffna, 1,850

Donation-Gift by wife in favour of husband-Action for revocation-Gross ingratitude-Roman-Dutch law.

Under the Roman-Dutch law a donation inter vivos may be revoked if the donee assaults the donor, although the latter may have agreed not to revoke it.

THIS was an action brought by the plaintiff to revoke a deed of gift made in favor of her husband on the ground of gross ingratitude. The learned District Judge held that the defendant had assaulted the plaintiff and gave judgment for her.

N. Nadarajah, K.C. (With him H.W. Jayewardene and S. Sivasubramaniam), for the defendant, appellant. -The plaintiff seeks to have a deed of donation executed by her in 1932 in favor of her husband, the defendant, revoked on the ground of ingratitude and cruelty. In August, 1942, the plaintiff left her husband and later instituted maintenance action. Her allegation, in that case, of cruelty was, however, rejected by Court. The dismissal of the maintenance case would operate as res judicata in the present case-Jainambo v. izzadeen 1; Rankiri Kiri v. Hattena 2 ; Gunahami v. Arnolis Hamy 3. The finding as regards ingratitude is based on the finding of cruelty.

The donation is expressly and on the face of the deed stated to be irrevocable. Such a deed cannot be revoked on any ground-Ukku Banda v. Paulis Singho4; Sahul Hamid v. Mohideen Nachiya5; razeeka v.Settuck6; Gunerathamy v. Manuel Appuhamy7; Voet 39.5.31. The Roman-Dutch law prohibits gifts between husband and wife-Wessels? Law of Contract, Vol. I., pp 225, 408. It is only by the Jaffna Matrimonial Rights and inheritance ordinance (cap. 48), s. 9 that the gift in question was made possible. The rule, therefore, of Roman-Dutch law that a gift can be revoked on the ground of ingratitude is not applicable in this case. Even if it is applicable ingratitude at large, is not a ground of revocation. The ground of revocation of a gift are limited-Sivarasi Pillai v. Anthonypillai8.

L. A. Rajapakse, K. C. (with him H. W. Tambiah), for the plaintiff, respondent.-A gift can be revoked for ingratitude even though the donor expressly agreed that it should be irrevocable- Maasdorp?s Institutes of S. African Law (4th ed.) Vol.. 3. P. 115. All that section 9 of Cap. 48 does is to remove a bar imposed by the Roman-Dutch law on gifts between husband and wife. But there is no enactment which says that the common law does not apply to such gifts. Even in Roman-Dutch law the prohibition of gifts between husband and wife is not absolute- Lee?s Introduction of Roman Dutch Law (3rd ed.) 92-93 ; 296-297; Walter Pereira?s Laws of Ceylon pp. 610,611. The grounds of revocation enumerated in Sivarasipillai v. Anthonypillai (supra) are not exhaustive. See Van Leeuwen?s Commentaries, Vol. 2,p. 235 (2nd ed.).

The dismissal of the maintenance action cannot operate as res judicata. The cause of action in the maintenance case was quite different form the cause of action in the present case.

Foot notes

1 (1938) 10 C. L. W. 138.                          5 (1932) 34 N. L. R. 57 at 68.

2 (1891) 1 C. L. Rep. 86.                           6 (1931) 33 N. L. R. 176.

3 (1895) 3 N. L. R. 128.                             7 (1927) 28 N. L. R. 329.

4 (1925) 27 N. L. R. 449                            8 (1937) 40N. L. R.47.

N.Nadarajah, K. C., in reply cited Voet 39 (Krause?s translation, pp. 50, 105, 106) and Halsbury?s Laws of England, Vol. 16, para. 1055 (Hailsham ed.).

Cur. adv. vult.

February 7, 1946. JAYETILEKE J. -

This is an action for the revocation of a deed of gift bearing No. 12396, dated November 16, 1932 (P 30, executed by the plaintiff in favour of her husband, the defendant, on the ground of gross ingratitude. The parties were married in the year 1923. The plaintiff alleged that in the year 1942 the defendant opened a t

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