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

1. Vithanage Dona Sreema Sarani Swarnalatha Perera, No. 10/B 105/10, Mattegoda Niwasa Housing Scheme, Polgasowita.

2. Violet Gunawickrema, “Dimuthu”, Palatuwa, Malimbada.

Plaintiffs SC APPEAL NO: SC/APPEAL/53/2016 SC LA NO: SC/HCCA/LA/519/2014 HCCA NO: WP/HCCA/COLOMBO/27/2008/LA DC COLOMBO NO: 20939/L Vs.

1. Kamalawathie Munasinghe alias M.A. Kamalawathie, 2. W.D. Padmasiri alias Hemasiri Perera, Both of No. C-B 12/14, Ranpokunagama, Nittambuwa.

3. Sithy Raleena Siddique, No. 146/18, Aramaya Road, Dematagoda.

Defendants AND BETWEEN

1. Kamalawathie Munasinghe alias M.A. Kamalawathie, (deceased)

1A. W.D. Padmasiri alias Hemasiri Perera, No. C-B 12/14, Ranpokunagama, Nittambuwa.

2. W.D. Padmasiri alias Hemasiri Perera, No. C-B 12/14, Ranpokunagama, Nittambuwa.

3. Sithy Raleena Siddique, No. 114, Kollonnawa Road, Dematagoda.

Defendant-Petitioners Vs.

1. Vithanage Dona Sreema Sarani Swarnalatha Perera, No. 10/B 105/10, Mattegoda Housing Scheme, Polgasowita.

2. Violet Gunawickrema, “Dimuthu”, Palatuwa, Malimbada.

Plaintiff-Respondents AND NOW BETWEEN

1. Kamalawathie Munasinghe alias M.A. Kamalawathie, (deceased)

1A. W.D. Padmasiri alias Hemasiri Perera, No. C-B 12/14, Ranpokunagama, Nittambuwa.

2. W.D. Padmasiri alias Hemasiri Perera, No. C-B 12/14, Ranpokunagama, Nittambuwa.

3. Sithy Raleena Siddique, No. 114, Kollonnawa Road, Dematagoda.

Defendant-Petitioner-Appellants Vs.

1. Vithanage Dona Sreema Sarani Swarnalatha Perera, No. 10/B 105/10, Mattegoda Housing Scheme, Polgasowita.

2. Violet Gunawickrema, “Dimuthu”, Palatuwa, Malimbada.

Plaintiff-Respondent-Respondents Before: P. Padman Surasena, J.

Yasantha Kodagoda, P.C., J.

Mahinda Samayawardhena, J.

Counsel: Murshid Maharoof with Shoaib Ahamed for the Substituted 1A and 2^nd Defendant-Petitioner-

Appellants.

Ranjan Suwandaratne, P.C., with Anil Rajakaruna for the Plaintiff-Respondent-

Respondents.

Argued on: 29.04.2021 Written submissions:

by the 1A, 2^nd and 3^rd Defendant-Petitioner-

Appellants on 11.05.2021.

by the Plaintiff-Respondent-Respondents on

01.02.2017.

Decided on: 10.06.2021 Mahinda Samayawardhena, J.

The two Plaintiffs filed this action against the three Defendants seeking a declaration that the land in suit is being held in trust by the Defendants for the two Plaintiffs and the two minor children of the 2^nd Plaintiff. At the trial, the Defendants raised a preliminary question of law to the maintainability of the action on the premise that the alleged cause of action of the Plaintiffs is prescribed in law. The District Court held that the cause of action is not prescribed. It also stated in passing that in any event, prescription does not run against the two minors. The case was refixed for further trial.

On appeal, the High Court held that the action against the two Plaintiffs is prescribed but not against the two minors, and therefore the Order of the District Court is correct.

The Plaintiffs did not appeal against this Judgment but the Defendants did. This Court granted leave to appeal on the question whether the High Court erred in law when it decided to allow the action to proceed on the basis that prescription does not run against the two minors when the alleged minors are not parties to the case.

The Plaintiffs have not made the minors parties to the action notwithstanding they seek Judgment in favour of themselves and the minors. The Court knows nothing about the two alleged minors – not even their names, gender or age. Without any information, how can the Court pronounce Judgment in favour or against the minors?

When the High Court decided that the action of the two Plaintiffs is prescribed and the two Plaintiffs accepted that decision by not appealing against it, the Plaintiffs have no locus standi to maintain this action. After the above finding, there is no live action.

If the Plaintiffs want to maintain the action on behalf of the alleged two minors, there is a special procedure laid down in the Civil Procedure Code to follow