Cundtvardena v. Roscdin
1960Present :Basnayake, C.J., and H. N. G. Fernando, J.S. GUJSTAWARDE2STA and another, Appellants, and•R. K. A. ROSAXiHST, Respondent
S. C. 227—D. C. Tangalle sitting at Hambantota, 697
Land Development Ordinance (Cap. 320)—Succession on death of grantee—Curatorsof minors—Sections 68 (2), 70, 76 (2).
A grantee of land under the Land Development Ordinance nominated hissister, the plaintiff, as life-holder. He died in 1951 leaving his widow (the 1stdefendant) and their son (a minor) who was nominated under the Ordinance asthe successor to the land by a writing dated 17th June 1948. The plaintiffalleged that the 1st defendant was in unlawful and wrongful possession of theland since the death of the grantee and she claimed the value of the produce.The plaintiff had never enjoyed the produce of the land or entered into occu-pation.
Held, that as the plaintiff did not enter into possession within the period ofsix months prescribed in section 68 (1) of the Land Development Ordinancethe successor succeeded to the holding by virtue of section 70.
.A.PPEAL from a judgement of the District Court, T angalle, sitting atHambantota.
Stanley Perera, for Defendants-Appellants.
JR.. Manikkavasagar, with K. Charavanamuttu, for Plaintiff- Respondent
BASNAYAKE, C.J.—Ounawarde-na v. Rosalin
February 19, 1960. Basuayake, C.J.—
The plaintiff Kumarapperuma Arachehige Rosalin of Uduwila wasnominated by her brother Kumarapperuma Arachehige Ramis who wasgrantee on a grant under the Land Development Ordinance as life-holderof a land known as Molakepu patana situated in part of the village ofWirawila in the Vidane Arachchi’s Division of Wirawila in Magam Pattuwaof the Hambantota District, depicted as lot No. 209a in F. X. S. PlanNo. 1 in Field Sheet No. 2.
He died in 1951 leaving his widow Sita Gunawardene the 1st defendant,and their Son Kumarapperuma Arachehige Charlie who was nominatedunder that Ordinance as the successor to the land by a writing dated17th June 1948. It would appear that the widow of the deceased Bamiswho after his death married M. S. Andiris Appuhamy, the 2nd defendant,continued to take the produce of the land and was doing so at the date ofthis action in November, 1957. The plaintiff alleged that the 1stdefendant and her husband were in unlawful and wrongful possessionof the land since the death of Barnis and she claimed the value of theproduce. The learned District Judge gave judgment for the plaintiffon the ground that she had been kept out of the land forcibly. Theevidence does not support the finding of the learned Judge nor does itshow that the plaintiff ever enjoyed the produce of the land or enteredinto occupation of it.
Section 68 (1) of the Land Development Ordinance provides that anominated life-holder fails to succeed if he refuses to succeed or does notenter into possession of the holding within a period of six months reckonedfrom the date of the death of the owner of the holding. As the plaintiffdid not enter into possession within the period prescribed in that provision. she failed to succeed and the successor succeeded to the holding by virtueof section 70, which declares that if the nominated life-holder fails tosucceed, the successor shall succeed to the holding. It would appeartherefore that Charlie is now entitled to the holding. He being a minorit must be presumed that the 1st defendant, his mother, managed it forhis benefit after he succeeded to it. It would appear from paragraph6 of the answer of the defendants that on a habeas corpus applicationmade for the custody of the person of Charlie, this Court directed the1st defendant to take steps in terms of Chapter 40 of the Civil ProcedureCode to deposit in court periodically the income from the holding, and inpursuance of that order the 1st defendant has instituted proceedings inthe District Court of Tangalle sitting at Hambantota. Section 76 (1) ofthe Land Development Ordinance provides that in the absence of acurator appointed b3'- the Court, the Government Agent should exercisehis powers in the instant case because steps have already been taken forthe appointment of a curator, who would be bound by section 588 (2) of theCivil Procedure Code to file an account of the property in his charge in theprescribed manner. The plaintiff must therefore fail in this action.
BASN'AYAKJE, G.J.—Samichchiappti v. Baronchihamy
We accordingly allow the appeal, set aside the judgment of the learnedDistrict Judge and dismiss the plaintiff’s action. The appellant is entitledto costs both here and below.
H. N. G. Fbekaitdc , J.—I agree.
S. GUNAWARDENA and another, Appellants, and R, K, A, ROSALIN , Respondent