Sri Lanka Law Reports
 2 Sri L.R.
v.WIJESINGHE & OTHERS
COURT OF APPEAL
J. A. N. DE SILVA, J. (P/CA)
CA NO. 247/99DECEMBER 07, 1999 ANDMAY 04, 2000
Land Development Ordinance sec. 2, 9, 49, 51, 52, 53, 54, 72 – Nomination ofa successor – State Lands Ordinance s. 19 (4), 26 – Registration of grantmandatory.
The petitioner is the eldest son of late B in whose name a permit was issued.B duly nominated the 4th respondent as the successor. Later B was issued twogrants in respect of the same lands. The grants were registered at the LandRegistry, on 8/9 July, 1996, but never reached B as she died on 17. 11. 1995.
The petitioner contends that, as there was no valid nomination of a successorby B, that he is entitled to be nominated as successor.
Is the failure on the part of B to nominate a successor under the grant amountto a non-nomination and invite the application of s. 72 notwithstanding the priornomination made by her under the permit?
Issuance of a grant changes the status of a permit holder to that of a'owner' who derives title to the land in question.
The owner – includes the permit holder who has paid all sums which heis required to pay. The satisfaction of paying all sums and complying withall conditions entitles that permit holder to a grant which 'shall' be issuedin terms of s. 19 (4).
The nomination of a successor under the permit becomes converted tonomination made by her as the owner of the land. At the time of her deathB was entitled to be considered as owner by virtue of the fact that shehad been awarded a grant.
CA Piyasena v. Wijeslnghe & Others (J. A. N. De Silva, J. (P/CA)) 243
APPLICATION for a Writ of Certiorari.
Chula Bandana with Ms. Rashini Mendis for petitionerAdrian Perera, SSC for 1 – 3rd respondents.
Gayan Perera with Ms. Prabha Perera for 4th respondent.
Cur. adv. vult.
April 06, 2001
J. A. N. DE SILVA, J. (P/CA)
In this application the petitioner seeks a mandate in the nature ofa Writ of Certiorari to quash the order dated 04. 02. 1999 made bythe 3rd respondent (Commissioner of Lands) refusing to accede toan appeal made by the petitioner to be declared the successor tothe land held by his late mother under the Land DevelopmentOrdinance. The 4th respondent named by the petitioner is his youngestbrother, in whose favour the Commissioner of Lands had made hisdecision.
The petitioner is the eldest son of late Mrs. B. V. Ukku Bandi inwhose name a permit had been issued under the Land DevelopmentOrdinance in respect of lots 478 and 479 Yaya 6 Angamuwa. UkkuBandi had duly nominated the 4th respondent as the successor (videP4 and P5). While this state of affairs was prevailing the said UkkuBandi was issued two grants in respect of the same lands in 1995by Her Excellency the President under section 19 of the Ordinance.The said grants bearing numbers 493 and 794 had been registeredat the Land Registry, Anuradhapura, on the 8th and 9th July, 1996,respectively. These grants were never received by Ukku Bandi as shedied on the 17th of November, 1995. The registration of a grant of.State Land by the President is a mandatory requirement in terms ofsection 26 of the State Lands Ordinance. In these circumstances, thepetitioner alleges that there was no valid nomination of a successor
Sri Lanka Law Reports
 2 Sri L.R.
by his mother Ukku Bandi and that he is entitled to be nominatedas successor according to rule 1 of the third schedule referred to insection 72 of the Land Development Ordinance. The 3rd respondentby his letter dated 4th February, 1999, marked "P8" had informedthe petitioner that the land in grants bearing numbers 493 and 794be devolved on the 4th respondent who was the nominee appointed
under the land permit. It is to be noted that in terms of the LandDevelopment Ordinance, a permit holder is entitled to nominate aperson or persons to succeed to the ownership of the land after his/her death. Such nomination could be cancelled by the permit holderand a new nomination could be made in terms of the provisions inchapter VII of the Land Development Ordinance. The nomination hasto be made in the prescribed form and registered in the Land Registryin terms of section 58 of the Lands Development Ordinance and ifit is not registered such nomination is considered to be invalid (videsection 58 (1)). The nomination in the permit itself shall stand validuntil it is cancelled by the permit holder. Counsel for the petitionercontended that nomination of the 4th respondent found in the permitis deemed to have been cancelled on the issuance of grants 493and 794 on the 20th of April, 1995 and 13th June, 1995, respectively.
Counsel further submitted that Ukku Bandi had failed to nominatethe 4th respondent or any other person to succeed to the land referredin the grants, although such provisions are found in sections 49, 51,52, 53 and 54 of the Land Development Ordinance.
The Land Development Ordinance is silent on the question ofsuccession where the death of the grantee intervenes between thedate of the grant and subsequent receipt thereof. Counsel for the 4th
respondent submitted that as the permit holder had the intention togive the land to the nominee, viz 4th respondent and that such
nomination had not been revoked by the permit holder prior to herdeath, the 4th respondent should be considered as the personentitled to be nominated under the grants.
CA Piyasena v. Wijesinghe & Others (J. A. N. De Silva, J. (P/CA)) 245
On a consideration of the above facts the question to be determinedis as follows: "would Ukku Bandi’s failure to nominate a successorunder the grant amount to a non-nomination and invite the applicationof the provisions of section 72 notwithstanding the prior nominationmade by her under the permit".
It is common ground that the 4th respondent was the nominated 60successor of Ukku Bandi under the permit and the subsequent grantto her never reached her until her death. It is to be noted that theissuance of a grant changes status of a permit holder to that of an"owner" who derives title to the land in question (see section 2 ofthe Ordinance). By the amending Act No. 27 of 1987 this interpretationof “owner" was extended to also cover "a permit holder who has paidall sums which he is required to pay . . . and has complied with allthe other conditions specified in the permit". The satisfaction of "payingall sums and complying with all conditions” entitles the permit holderto a grant which “shall" be issued in respect of the said land in terms 70of section 19 (4) of the same Act. In view of these provisions it couldbe reasonably argued that at the time of her death Ukku Bandi wasentitled to be considered as "owner" by virtue of the fact that shehad been awarded a grant. The fact that the grant never reachedher and also the fact that the execution of the grant was neverconveyed to her cannot be held against her. There are circumstancesin her favour and I hold that the nomination of a successor underthe permit becomes converted to nomination made by her as the ownerof the land. In my view this interpretation is in keeping with the spiritand intention of the amending Act. A broader definition attributed to 80the term "owner" and the legal entitlement of a permit holder to beregarded as such are salutary features of the amendments. In thesecircumstances the petitioner's contention that recourse should bemade to section 2 of the Old Ordinance to decide the question ofsuccession is untenable in law. This application is dismissed withoutcosts.
PIYASENA v. WIJESINGHE & OTHERS