IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Sirimewan Maha Mudalige Kalyani Sirimewan, Udakekulawala, Bujjomuwa.

Plaintiff SC/APPEAL/48/2017 SC/HCCA/LA/59/2015 NWP/HCCA/KUR/83/2011(F)

DC KULIYAPITIYA NO. 15936/L Vs.

1. Herath Mudiyanselage Gunarath Manike, 2. Herath Mudiyanselage Ranil Suriya Bandara (Minor), 3. Registrar, District Court, Kuliyapitiya.

All of Hemudawa, Sadalankawa.

Defendants AND Sirimewan Maha Mudalige Kalyani Sirimewan, Udakekulawala, Bujjomuwa.

Plaintiff-Appellant Vs.

1. Herath Mudiyanselage Gunarath Manike, 2. Herath Mudiyanselage Ranil Suriya Bandara (Minor), 3. Registrar, District Court, Kuliyapitiya.

All of Hemudawa, Sadalankawa.

Defendants-Respondents AND NOW BETWEEN Sirimewan Maha Mudalige Kalyani Sirimewan, Udakekulawala, Bujjomuwa. Plaintiff-Appellant-Appellant Vs.

1. Herath Mudiyanselage Gunarath Manike, 2. Herath Mudiyanselage Ranil Suriya Bandara (Minor), 3. Registrar, District Court, Kuliyapitiya.

All of Hemudawa, Sadalankawa.

Defendants-Respondents-

Respondents Before: Hon. Chief Justice Jayantha Jayasuriya, P.C.

Hon. Justice S. Thurairaja, P.C.

Hon. Justice Mahinda Samayawardhena Counsel: S.N. Vijithsingh with Tharushi Ishanka for the Plaintiff-

Appellant-Appellant.

Upul Kumarapperuma, P.C. with Radha Kuruwitabandara for the Defendant-Respondent-Respondents.

Argued on: 13.02.2024 Written Submissions:

By the Plaintiff-Appellant-Appellant on 03.10.2023 By the Defendant-Respondent-Respondents on 15.09.2017 Decided on: 10.05.2024 Samayawardhena, J.

Introduction The plaintiff filed this action on 05.06.2007 in the District Court of Kuliyapitiya primarily seeking the cancellation of Deed No. 13951 dated 31.03.2000 and Deed No. 14883 dated 23.10.2002 executed by the plaintiff’s late father in favour of the 2nd defendant on the basis that those Deeds were executed under undue influence and duress exerted by the 1st defendant. The defendants filed answer seeking dismissal of the plaintiff’s action inter alia on the basis that the plaintiff’s cause of action is prescribed.

After the issues were raised, learned counsel for the defendants moved that the 15th and 16th issues raised by the defendants be tried as preliminary questions of law.

15. Has the plaintiff’s action been prescribed?

16. If so, should the action be dismissed in limine?

The learned District Judge answered these two issues in the affirmative and dismissed the plaintiff’s action in limine. On appeal, the High Court of Civil Appeal of Kurunagala affirmed the order of the District Court. The plaintiff appealed to this Court from the judgment of the High Court. At the argument, learned counsel for the plaintiff-appellant confined his argument to the questions of law set out in paragraphs 12(i) and 12(iii)

of the petition.

12(i) Did the High Court of Civil Appeal err in law in holding that the prescription begins to run from the date of execution of the Deeds whereas it begins to run from the date on which the plaintiff became aware of the existence of the Deeds?

12(iii) Did the High Court of Civil Appeal err in law in deciding that the 15th and 16th issues which consist of both fact and law can be decided without evidence being taken?

Cancellation of a Deed Section 10 of the Prescription Ordinance, No. 22 of 1871, reads as follows:

No action shall be maintainable in respect of any cause of action not herein before expressly provided for, or expressly exempted from the operation of this Ordinance, unless the same shall be commenced within three years from the time when such cause of action shall have accrued.

There is no dispute that, as held in Ranasinghe v. De Silva (1976) 78 NLR 500, “An action for declaration that a notarially executed Deed is null and void is prescribed within 3 years of the date of execution of the Deed in terms of section 10 of the Prescription Ordinance.”

However, when a plaintiff seeks cancellation of a notarially executed Deed upon concealed fraud, it was held in Kirthisinghe v. Perera (1922) 23 NLR 279 that the three-y