IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

1. D. S. Kumarasinghe (Deceased), 1A. Liliyan Kumarasinghe, (Deceased) 1B. Lakmal Samantha Kumarasinghe, 2. Ajith Nilanjan Kumarasinghe, 3. Lakmal Samantha Kumarasinghe, No. 633, Trincomalee Street, Matale.

Defendant-Respondent-Appellants SC/APPEAL/66/2022 Vs.

CP/HCCA/KANDY/FA/27/2017 DC/MATALE/4533/92/L Konara Mudiyanselage Piyadasa.

No. 102, Malwatta Road, Matale.

Presently at, No. 51, Ward Place, Colombo 07.

Plaintiff-Appellant-Respondent Before: Hon. Justice P. Padman Surasena Hon. Justice Mahinda Samayawardhena Hon. Justice Sobhitha Rajakaruna Counsel: Kuvera de Zoysa, P.C. with Asanka Ranawaka and Samuditha Kumarasinghe for the 1st, 2nd and 3rd Defendant-Respondent-Appellants.

Samantha Ratwatte, P.C. with Lalanika Kankanamge and Madhurya Bandara for Plaintiff-Appellant-Respondent.

Argued on: 07.02.2025 Written Submissions:

By the Appellants on 17.10.202 By the Respondent on 23.09.2022 Decided on: 05.03.2025 Samayawardhena, J.

The plaintiff filed this action on 10.08.1992 in the District Court of Matale against the defendant seeking a declaration of title to the land described in schedule A to the plaint, the ejectment of the defendant from the land described in schedule B to the plaint (which is a portion of the land described in schedule A), and damages. The 2nd and 3rd defendants, who are children of the 1st defendant, were later added as parties. The defendant sought dismissal of the plaintiff’s action. After trial, the District Court dismissed the plaintiff’s action on the ground that the plaintiff lacked the requisite title to institute the action against the defendant, as his title Deed marked P1 was a conditional transfer. It was also held that the defendant had prescribed to the land. On appeal, the High Court of Civil Appeal of Kandy set aside the judgment of the District Court on both grounds. This Court granted leave to appeal to the defendant on the following question of law:

Did the High Court err in law by failing to appreciate that the plaintiff did not get title to the land, as the condition appended to the operative part of Deed P1 was not fulfilled by the vendor?

By Deed P1, executed on 05.10.1988, the vendor transferred the land to the plaintiff for valuable consideration. At the time of this transfer, the defendant was already in possession of the land. Prior to the transfer, on 06.11.1984, the vendor had instituted Case No. 3383/L against the defendant, seeking a declaration of title and ejectment. Accordingly, Deed P1 was executed, as stated therein, “Subject however to the condition that I the said vendor should prosecute the action filed for the ejectment of one Kumarasinghe (the defendant in the instant case) from the said premises and obtain vacant possession.” At the trial in Case No. 3383/L, the defendant raised an issue contending that the vendor could not maintain that action against him, as she had already transferred the land to the plaintiff by Deed P1. The vendor withdrew the action on 17.01.1992, with liberty to file an action against the defendant by the new owner (the present plaintiff), if necessary. The defendant’s counsel did not object to the withdrawal of that action, subject to that condition. A certified copy of Case No. 3383/L was marked at the trial as P5.

Drawing attention to the above-quoted part of Deed P1, the argument advanced before this Court by the defendant is that Deed P1 is a conditional transfer and, as the condition was not fulfilled by the vendor, title did not pass to the vendee (the plaintiff in this action), thereby rendering the plaintiff incapable of instituting this action against the defendant. According to this argument, title still remains with the vendor. However, in the previous case, the argument of the defendant was that title had passed to the vendee upon the execution of Deed P1. This inconsistent stance amounts to an attempt to approbate and reprobate, a practice that should not be counte