WIMALAWATHIE vs HEMAWATHIE AND OTHERS

WIMALAWATHIE
vs
HEMAWATHIE AND OTHERS

COURT OF APPEAL
ABDUL SALAM. J
CA 825A-825B/2001 (F)
DC COLOMBO 14522 P
SEPTEMBER 24,2007

Partition Act No.16 of 1951 - Law No. 44 of 1973 - Partition Law No. 21 of 1977 - Section 68 - Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared - Earlier law giving place to a later - law lex posterior derogate priori -leges posteriors priores contrarias abrogant - non-est novum ut priores leges and posteriors.

In the partition action instituted by the plaintiff appellant to partition the corpus, the trial judge rejected the deeds of the plaintiff as the plaintiff could not prove the execution of the said deeds. The said deeds were marked subject to proof but not proved.

In appeal it was contended that calling for proof of documents produced by the plaintiff appellant contravenes Section 68 of the Partition Law.

Held:

(1) The finding in relation to the want of proof of the documents produced by the plaintiff and the 10th defendant blatantly contravenes Section 68 of the Partition Law, which provides that it shall not be necessary in any proceedings under that law to adduce formal proof of the execution of any deed which on the face of it, purports to have been dilly executed unless the genuineness of that deed is impeached by a party claiming adversely to the party producing that deed or unless the Court requires such proof.

(3) The execution of documents required by law to be attested should be 'proved by calling at least one subscribing witness - Section 68 Evidence Ordinance which was enacted in 1895. This precedes

the Partition Act 16 of 1951, Law 44 of 1973 and Partition Law, 21 of 1977, thus later laws repeal earlier laws in-consistent - there with and earlier act must give place to a later, if the two cannot be reconciled.

cur.adv.vult

APPEAL from the judgment of the District Court of Colombo.

Cases referred to:-

1. Sri Lanka Ports Authority us. Jugolinga - 1981 - 1 Sri LR 18

2. Cooper us. Wilson - 1937 - 2 KOB 300

L. W. Wettasinghe with Kapila Jayasekera for plaintiff-appellant

Rohan Sahabandu for 10th defendant-respondent

May 05,2009

ABDUL SALAM, J.

The question that arises for determination in this appeal involves an important aspect of the law relating to the mode of proof of deeds, in a partition action. Understandably, there are no precedents on a similar legal question originating either from this Court or any other courts of superior jurisdiction. It is therefore necessary, to set out in detail the circumstances that had led up to the present appeal and the law that is applicable.

The plaintiff-appellant (Plaintiff) filed a partition suit against the pt to 10th defendant-respondents (hereinafter collectively referred to as the "defendants" or individually as 1 to 10 defendants as the case may be) to partition a land alleged to be owned in common. Some of the defendants denied the devolution of title set out by the plaintiff, but put forward a chain of title, which materially deferred from that of the title pleaded by the plaintiff. The plaintiff and the 18tto 9th defendants are siblings and cousins and the 10thdefendant is the mother of the pt, 2nd, 6th ,7th, 8th and 9th defendants. The
main question that arose for determination was whether the

subject matter of the action should be partitioned as per the pedigree set out in the plaint or in the statement of claim of the contesting defendants.

At the trial the plaintiff gave evidence in support of her case and produced 7 deeds marked as PI to P7 in order to establish her title and led the evidence of the Notary Public who attested the documents marked as P3 and P6. Remarkably five of these deeds were originals and the rest were certified copies. PI has been executed as far back as in 1913, P2 in 1943, P3 in 1971, P4 in 1952, P5 & P6 in 1971 and P7 in 1956. The partition action has been instituted on 3rd July 1986. The de

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