MAHAWEWA AND ANOTHER V. HEMACHANDRA MAHAWEWA

MAHAWEWA AND ANOTHER V.
HEMACHANDRA MAHAWEWA

SUPREME COURT
SHIRANEE TILAKAWARDANE, J.,
MARSOOF, P.C. J., AND
SRIPAVAN, J.
S.C. APPEAL NO. 64/2008
S.C. (H.C.) C.A.L.A. NO. 25/2008
WP/HCCA/ COL/ 131/2007 (LA)
D.C. MOUNT LAVINIA NO. 349/98/SPL
NOVEMBER 23RD, 2009
DECEMBER 18TH, 2009

Civil Procedure Code - Section 392 - On the death of a party action does not abate if right to sue survives - Section 398(1) - Substitution of legal representative in place of deceased defendant - Personalis moritur cum persona - Litis Contestatio?

The supreme Court granted Special Leave to Appeal on the question of law, whether an action to revoke a deed of gift based on gross ingratitude would survive, upon the death of the original Defendant (donee) before the conclusion of the case.

In the instant case, at the time of the original Defendant's death, the trial had commenced and the Respondent had completed his evidence and closed his case. The deceased Defendant had also commenced his case but died prior to the conclusion of the cross examination of his case. Unmistakably, the stage of Litis Contestatio had been reached at the time Defendant's death.

Held

(1) The maxim personalis moritur cum persona cannot be uniformly applied to each and every action which qualifies as personal in nature and whether or not the maxim applies must be determined on the facts and circumstances of the case.

(2) The Plaintiff-Respondent-Respondent-Respondent should be pennitted to continue the action for revocation of gift against the Defendant- Petitioner-Petitioner-Petitioners after due substitution.

Held further:

(3) Per Shiranee Thilakawardane, J.,

"It was also incumbent upon the Trial Court to rule on the question of patent jurisdiction that was raised, instead of informing parties that it would be decided later when it was taken up at the hearing."

Cases referred to:
1. Jayasuriya u. Sarnaranayake - 1982 (2) Sri L.R. 460
2. Deeranada Thero v. Ratnasara Them - 60 N.L.R. 7
3. A.G. v. Satarasinghe - 2002 (2) Sri L.R. 1 13
4. Stella Perera and others v. Margret Silva - 2002 (1) Sri L.R. 169
5. Muheeth v. Nadarajapillai - I 9 N.L.R. 46 1
6. Vangadasalam and another v. Karuppaiah and another- 79 (2) 150 (SC)

APPEAL from the decision of the Provincial High Court of Civil Appeal, Western Province

Dr. Jayatissa de Costa with Anitha Rajapakse for Defendant-Petitioner- Petitioner-Petitioners

Ranjan Suwandaratne with Anil Rajakaruna for the Plaintiff- Respondent-Respondent-Respondent.

Cur.adv. vult.

May 6th 2010
SHIRANEE TILAKAWARD ANE, J.

    An application for Special Leave was preferred by the Defendant-Petitioner-Petitioners-Petitioners (hereinafter referred to as the Petitioners) against the decision of the Provincial High Court of Civil Appeal of the Western Province

dated 13.02.2008. This Court granted Special Leave to Appeal on 25.07.2008 on the question of law set out in paragraph 12 (c) of the Petition, namely, whether the action to revoke a deed of gift based on gross ingratitude would survive, upon the death of the original defendant (donee) before the conclusion of the case.

    The Plaintiff-Respondent-Respondent-Respondent (hereinafter referred to as the Respondent) instituted action bearing No. 349/98/SPL, in the District Court of Mount Lavinia, against the deceased Defendant praying, inter alia, that the Deed of Gift bearing No. 1909 dated 07.08.1992, made by the Respondent to the deceased Defendant be canceled, on the ground of alleged gross ingratitude by the Defendant. The deceased Defendant by his answer dated 08.03.1999, denied this claim, and moved for the dismissal of the Respondent's action.

    At the trial, upon conclusion of the Respondent's case, the deceased Defendant commenced his case. However, the Defendant died on 31.01.2005, prior to the conclusion of the cross examination of his case. Thereafter, the Respondent sought to substitute the Petition

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