WIMALAWATHI

Vs.

COMMISSIONER GENERAL OF LAND AND OTHERS

COURT OF APPEAL
OBEYESEKERE, J.
CA/WRIT/112/2013
JULY 18, DECEMBER 10, 2018

Writ of certiorari and mandamus-Land Development Ordinance, No. 19 of 1935, sections 19(6), 48B(1), 49, 51, 68(2), 70, 72, 73-Succession under a grant-Nomination to succession-Applicability of Rule 1 of the Third Schedule-Rule 5 of the Court of Appeal (Appellate Procedure) Rules of 1990-Can mandamus be issued against non-natural persons?

A grant under the Land Development Ordinance was issued in the name of the petitioner's father who died without nominating a successor. Upon his death, the petitioner's mother succeeded to the land. The eldest son predeceased the mother. After the death of the mother, the Divisional Secretary issued the certificate of succession in respect of this land to the daughter of the eldest son of the petitioner's father. The petitioner who is one of the children of the deceased father filed this application in the Court of Appeal seeking to quash the said certificate of succession by a writ of certiorari and to compel the Divisional Secretary to hold a proper inquiry and determine the question of succession to the land. The issue to be resolved before the court was what should be the date on which succession should take place where no successor has been nominated in respect of a grant.

Held:

1. According to section 72 read with sections 73 and 49, devolution of title in terms of Rule 1 of the Third Schedule shall take place only upon the death of the spouse who has succeeded to the land, and not upon the death of the owner of the holding.

2. The impugned decision of the Divisional Secretary is inconsistent with the provisions of the Land Development Ordinance and bad in law.

3. A writ of mandamus can be issued against non-natural persons.

Cases referred to:

1. Samarasena v. Panditharatne (CA/WRIT/239/2010, CA Minutes of 20.09.2012)
2. Biso Menika v. Cyril de Alwis and others (1982) 1 Sri LR 368 at 379-380
3. V. Ramasamy v. Ceylon State Mortgage Bank and others 78 NLR 510
4. Methodist Trust Association of Ceylon v. Divisional Director of Education of Galle (CA/WRIT/192/2015, CA Minutes of 08.01.2019)

APPLICATION for Writs of Certiorari and Mandamus.

Thishya Weragoda for the Petitioner.

Suranga Wimalasena, S.S.C., for the 1st-3rd Respondents.

Athula Perera with Vindya Divulwewa for the 4th Respondent.

cur. adv. vult.

May 31, 2019

OBEYESEKERE, J.

The Petitioner states that the State had issued Balayage Puncha alias Batuwattalage Puncha Grant No. Pra/Po/10539 dated 4th June 1984, annexed to the petition marked 'A1 ', under and in terms of Section 19(6) read with Section 19(4) of the Land Development Ordinance, in respect of a land in extent of 2A 1R 13P.

The Petitioner states that Balayage Puncha passed away on 7th February 1997. It is not in dispute that Balayage Puncha had not nominated a successor to the said land at the time of his death. He was survived by his spouse Marappulige Kirimallu and three of their seven children, including the Petitioner. There is also no dispute between the parties that Kirimallu succeeded to the said land upon the death of Balayage Puncha. The eldest son who was alive at the time Balayage Puncha passed away was Battuwattalage Wilson Fernando. The 4th Respondent in this application is the daughter of the said Wilson Fernando. Wilson Fernando passed away on 14th July 1998, while Kirimallu passed away on 19th September 2009.

Even prior to the death of Kirimallu, a dispute had arisen between the 4th Respondent and the Petitioner as to who should succeed to the said land. This Court observes that together with the other Respondents who are the surviving children and/or grandchildren of Balayage Puncha, the Petitioner and her children are occupying parts of the land which is the subject matter of the said Grant.

The Petitioner states that after the death of Kirimallu, the 2nd Respondent