SOMAWATHIE VS. WILMON AND OTHERS

SOMAWATHIE VS. WILMON AND OTHERS

SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.,
AMARATUNGA, J., AND
RATNAYAKE, J.
S.C. APPEAL NO. 2/2009
S.C. (H.C.) C.A.L.A. NO. 110/2008
H.C.C.A. NWP/HCCA/KUR NO. 16/2001 (F)
D.C. MAHO NO. 4241 /P
MAY 4TH, 2009

New Ground Raised For The First Time In Appeal - acceptance of a deed of Gift -Mandatory? - Partition law - Section 4(1) d

The appellant instituted action in the District Court of Maho for the partition of the land described in the schedule to the plaint. After trial, the learned District Judge by his judgment dated 22.1.2001 had declared that appellant was entitled to an undivided 1/3rd share of the land and had left the remaining 2/3rd share unallotted. Being aggrieved by judgment of the District Judge, the 4th respondent had preferred an appeal to the High Court. The High Court had allowed the 4th respondent's appeal and dismissed the appellant's action. Being aggrieved  by the decision of the High Court, the appellant appealed to the Supreme Court. The Supreme Court granted leave to appeal on the following questions.

(1) Has the High Court erred in law in misinterpreting and misconstruing that there was no acceptance of the Deed of Gift by the donees?

(2) Has the High Court erred in law in failing to consider that the Deed of Gift on the face of it clearly indicates that the life interest holder has signed in acceptance on behalf of the donee?

(3) Was the High Court wrong in law in considering the question of non acceptance of the Deed of Gift since there was a failure to raise as issue on that ground in the District Court or lead any evidence to that effect?

    The question of non-acceptance of the Deed of Gift (P2) was raised for the first timi in appeal. The three questions on which leave to

appeal was granted by the Supreme Court are based on the Deed of Gift marked as P2 at the trial in the District Court.

Held

(1) A new ground cannot be considered for the first time in appeal, if the said new ground has not been raised at the trial under the issues so framed. However, the Appellate Court could consider a point raised for the first time in appeal if the following requirements are fulfilled.

(a) the question raised for the first time in appeal, is a pure question of law and is not a mixed question of law and fact.

(b) the question raised for the first time in appeal, is an issue put forward in the Court below, under one of the issues raised, and

(c) the Court which hears the appeal has before it all the material that is required to decide the question.

Held further

(2) The essence of a Deed of Gift is to convey movable or immovable property as a gratuitous transfer. Therefore for the purpose of making the donation complete, the gift has to be accepted.

(3) The High Court had erred in law in misinterpreting and misconstruing that there was no acceptance of the Deed of Gift by the donees, when it was clearly stated in the said Deed that the gift was accepted by the mother of the donees on behalf of the donees and she had also signed the said Deed of Gift.

(4) The High Court was wrong in law in considering the question of non-acceptance of the Deed of Gift since there was a failure to raise an issue on that ground in the District Court or to lead any evidence to that effect.

Cases referred to:

( 1 ) Talagala v. Cangodawila Codperative Stores Society Ltd., - (1947) 48 NLR 472
( 2 ) Gunawardenn v. Deraniyagala and others - S. C. (application) No. 44/2006, S.C. Minutes of 3.6.2010.
( 3 ) Seetha vs. Weerakoon - 49 NLR 225

(4) The Tasmania (1890) A. C. 223
(5) Appuhamy V. Nona (1912) 15 NLR 31 1
(6) Manian v . Sanmugam and Arulampillai u. Thambu (1944) 45 NLR 457
(7) Nagalingam v. Thanabalasingham (1948) 50 NLR 87
(8) Senanayake v. Dissanayake (1908) 12 NLR 1

APPEAL from the High Court of Civil Appeal (North Western Province).

Lakshman Perera with Anusha Gunaratne for Plaintiff - Responden

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