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2024 Supreme(SRI)(SC) 12831
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka.
SC Appeal No. 68/2014 WP/HCCA/MT/LA Application No: 164/2007(F)
DC Mt. Lavinia Case No. 362/98/Spl
1. Vadivelu Anandasiva.
2. Vigneshwary Anandasiva. Both of No. 15, Alexandra Road, Colombo 6. PLAINTIFFS Vs.
1. Paranirupasingham Arulrajasingham, No. 22, Govt. Quarters, Bambalapitiya.
2. Subramaniam Shanmuganathan, No. 56, Vaverset Place, Colombo 6.
DEFENDANTS AND BETWEEN
1. Vadivelu Anandasiva.
2. Vigneshwary Anandasiva.
Both of No. 15, Alexandra Road, Colombo 6.
PLAINTIFFS – APPELLANTS Vs.
1. Paranirupasingham Arulrajasingham, No. 22, Govt. Quarters, Bambalapitiya.
2. Subramaniam Shanmuganathan, No. 56, Vaverset Place, Colombo 6.
DEFENDANTS – RESPONDENTS AND NOW BETWEEN
1. Paranirupasingham Arulrajasingham, No. 22, Govt. Quarters, Bambalapitiya.
1ST DEFENDANT – RESPONDENT – APPELLANT Vs.
1. Vadivelu Anandasiva.
2. Vigneshwary Anandasiva.
Both of No. 15, Alexandra Road, Colombo 6. PLAINTIFFS – APPELLANTS – RESPONDENTS
1. Subramaniam Shanmuganathan, No. 56, Vaverset Place, Colombo 6.
2ND DEFENDANT – RESPONDENT – RESPONDENT Before: Priyantha Jayawardena, PC, J A.L. Shiran Gooneratne, J Arjuna Obeyesekere, J Counsel: M.A. Sumanthiran, PC, with Ms. Juanita Arulanandam and Ms. S Arulendran for the 1st Defendant – Respondent – Appellant Ikram Mohammed, PC, with S. Mitrakrishnan, Ms. Tanya Marjan, Vinura Jayawardena and Reeshman Jiffry for the Plaintiffs – Appellants –
Respondents Argued on: 1st November 2021 Written Tendered on behalf of the 1st Defendant – Respondent – Appellant on Submissions: 10th November 2021 Tendered on behalf of the Plaintiffs – Appellants – Respondents on 5th August 2014 and 9th November 2021 Decided on: 21st February 2024 Obeyesekere, J This is an appeal filed by the 1st Defendant – Respondent – Appellant [the Appellant against the judgment delivered on 10th February 2012 by the High Court of the Western Province holden at Mount Lavinia, exercising civil appellate jurisdiction [the High Court]. Leave to appeal has been granted by this Court on 20th May 2014 on three questions of law, which I shall refer to in detail later; suffice to state at this point that the said questions of law would require this Court to determine on whom lies the burden of proof in establishing that a particular property is Thediathetam property, and whether that burden has been discharged by the Appellant.
In the course of writing this judgment, I have observed that the words ‘Thesawalamai and ‘Thediathetam’ have been spelt differently over the years. In order to maintain uniformity, I have opted to follow the above spellings which have been used by Chief Justice Sharvananda in Manikkavasagar v Kandasamy and Others [(1986) 2 Sri LR 8].
I shall commence by setting out the material facts relating to this appeal.
Money recovery action On 30th January 1997, the Appellant filed Case No. 88/97 in the District Court of Mount Lavinia against Subramanium Shanmuganathan, who is the 2nd Defendant – Respondent – Respondent [Shanmuganathan], under and in terms of the provisions of Chapter LIII of the Civil Procedure Code. In his plaint, the Appellant alleged that during the period of 10th June 1996 to 30th June 1996, Shanmuganathan had issued in favour of the Appellant, two cheques drawn on the Commercial Bank of Ceylon Limited in a sum of Rs. 250,000 each, and a further cheque drawn on the same Bank in a sum of Rs. 100,000. The Appellant had stated further that he presented all three cheques to the Bank but that the said cheques were dishonoured, with an endorsement that it be referred to the drawer. As Shanmuganathan had failed to pay the said sums of money to the Appellant, although demanded through an Attorney-at-Law, the above action had been instituted seeking to recover the said sums of money.
Shanmuganathan had failed to appear before the District Court in spite of summons
