JAYASEKERA VS. PERERA

JAYASEKERA VS. PERERA

COURT OF APPEAL
EKANAYAKE,J.
GOONERATNE,J.
CA 311/95(F)
DC COLMBO 14588/P
MAY 7, 2007

Partition law - Section 26 (2) (d) - Judgment not in compliance with Section 187 of the Civil Procedure Code - Amicable division - Family arrangement - Should it be accepted? Testamentary case - Section 545 of the Code -property in dispute not in the inventory- Fatal? Who is an heir? - Constitution Article 138(1)

In the partition action, the defendants relied on an amicable division. The plaintiff contended that the said document has not been notarially executed and as such invalid- and that the other co-owners had not signed same. It was also contended that, the corpus was not included in the testamentary case of the father of the plaintiff-respondent and it is a bar to a subsequent partition action. It was contended by the defendants- appellants that, the requirements in Section 187 of the Civil Procedure Code had not been satisfied.

Held

Per AniI Gooneratne, J.

    "Considering the totality of the evidence although there is no strict compliance with Section 187. I hold that the District Court is not  in error in entering judgment for the plaintiff since no failure of justice has prejudiced the defendant."

(1)     The fact that the inventory does not include the [and in question should not be a bar to a subsequent partition action. A mere lapse in the inventory of not including a property should not deprive the plaintiffs real entitlement to succession. The plaintiff is entitled to  her legal entitlement on the death of her mother.

(2)    Heir is a person who succeeds by descent to an estate of inheritance. On the death of a person his estate in the absence of will passes at once by operation of law to his heirs and that dominium

        vests in them. Once it is so vested they cannot be divested of it except by several well known modes recognized by law.

(3)    There is no proper deed or notarially executed document produced in the trial to prove an amicable arrangement. The document  appears to be a proposal and not signed by all - as such no reliance could be placed    on the document.

(4)    Long possession may not be sufficient to prove ouster although one could argue that inference of ouster could be drawn from such possession.

APPEAL from the judgment of the District Court of Colombo.

Cases referred to:-
1.Dona Lucihamy vs. Cialiyanahamy - 59 NL 2 14
2.Warnakula vs. Ramani Jayawardena - 1990 - 1 Sri LR 206
3. Ceylon Transport Board vs. Ceylon Dansport Workers' Union - 71 NLR 158
4.Fernando vs. Dabarera - 77 NLR 127
5.Hassen Hanjiar v. Levane Marikkar 15 NLR 275
6.Perera vs. Kriekenbeck - 10 NLR 1 19
7.Wijewardena vs. Abdul Hamid - 12 NLR 243
8.Silua vs. Silva - 10 NLR 242
9.Appuhamy us. Premalal- 1984 - 1 Sri LR 209
10.Maria Perera us. Albert Perera - 1982 2 Sri LR 399
Gamini Marapana PC with Navin Marapana and T. Palliyagumge for appellant.
Nihai Jayamanne PC with Ajit Munasinghe and Dilhara de Silua for respondent.

May 07th 2007

ANIL GOONERATNE J.

    This was a partition action instituted in the District Court of Colombo in December 1986 to partition a land called

'Poththewela Owita' in extent of 2 Roods 3.4 perches. The prayer to the pIaint seeks an order in terms of Section 26(2) (d) of the partition law. The Plaintiff claims an undivided half share of the land in question, and the relief sought is to demarcate the half share according to the said section.
    The 1st and 2nd Defendants in their statement of claims disclosed two other parties. The Defendants in their statement  of claims had prayed for a dismissal of Plaintiffs action and claimed shares in the entire corpus in the manner set out in the respective statement of claims filed by them.

    At the trial held on 18.6.91 before the District Judge  paragraphs 1 to 5 of the plaint were admitted and thirteen points of contests were raised. The proceedings

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