JAYASUNDARA

Vs.

DIVISIONAL SECRETARY, BULATHSINGHALA AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
OBEYESEKERE, J.
CA/WRIT/263/2017
AUGUST 31, 2020

Writs of certiorari and mandamus-Land Development Ordinance, sections 72, 73-Failure of nominated successor to succeed to the land on death of permit-holder-Permit issued to widow of original permit-holder-Death of nominated successor-Grant issued to widow-Succession to the land on widow's death

The petitioner's grandfather, RJ, was issued a permit under the Land Development Ordinance in respect of the subject matter land. RJ named his son, C (the father of the petitioner), who was then aged 12, as his nominated successor. RJ died in 1960. In 1962, his widow, AR was named as the owner/permit-holder of the land in the land ledger. This was not the same as succession to the land by the widow of the permit-holder under section 38A, which was only introduced to the principal enactment by the Land Development (Amendment) Act, No. 16 of 1969. At the time AR was named the owner/permit-holder, section 26 of the Ordinance provided that the permit was personal to the permit-holder and that upon his death no title shall pass to his heirs or to any person other than a duly nominated successor.

The petitioner's father, C, died in 1975. In 1983, AR was issued a grant in respect of the subject matter land in terms of section 19(4) read with section 19(6) of the Ordinance. She died in 1992 without nominating a successor in the grant. Following her death, the 1st respondent Divisional Secretary made a determination that the 4th respondent, who was the eldest son of AR, shall succeed to the land. The petitioner filed the present application seeking to quash the said decision by a writ of certiorari and to compel the 1st respondent by a writ of mandamus to nominate the petitioner to succeed to the land on the basis that he is the only surviving child of C.

Held:

1. The nomination of C as RJ's successor came to an end upon AR becoming the owner/permit-holder of the land. AR being made the owner/permit-holder was not challenged.

2. If no successor has been nominated or the nominated successor fails to succeed in terms of section 68(2), title to the land shall devolve as prescribed by Rule 1 of the Third Schedule read with section 72 of the Land Development Ordinance.

3. In terms of section 73, the nominated successor can succeed to the land only after the death of the permit-holder or, if the permit-holder is survived by his or her spouse, upon the failure of such spouse to succeed to the land or after the death of such spouse. Obviously C could not have succeeded to the land because he predeceased the spouse of the permit-holder, AR (i.e. C's mother).

4. As AR had not nominated a successor in the grant, the title to the holding shall devolve as prescribed by Rule 1 of the Third Schedule read with section 72 of the Ordinance. Accordingly, the decision of the 1st respondent that the 4th respondent shall succeed to the land is flawless.

APPLICATION for Writs of Certiorari and Mandamus.

Thisath Wijayagunawardane, P.C., with Gihan Liyanagefor the Petitioner.

Yuresha Fernando, S.S.C., for the 1st-3rd Respondents.

Vidura Ranawaka with Sudath Perera for the 4th Respondent.

cur. adv. vult.

November 16, 2020

SAMAYAWARDHENA, J.

The permit under the Land Development Ordinance was issued to Richard Jayasundera in respect of the land described in the grant X3A. It is clear from the Land Ledger Y1 that Richard Jayasundera named his son Chandradasa Jayasundera, who was 12 years of age at that time, as his nominated successor. Chandradasa Jayasundera was the father of the Petitioner. Richard Jayasundera died in 1960.

As seen from the Land Ledger, Asilin Rodrigo was named the owner/ permit-holder of the land on 11.08.1962, nearly two years after the death of Richard Jayasundera. Asilin Rodrigo was the widow of Richard Jayasundera