024-SLLR-SLLR-2008-V-1-BABBUWA-AND-OTHERS-v.-PREMADASA-AND-OTHERS.pdf
Babbuwa and Others v
SC Premadasa and Others243
BABBUWA AND OTHERSv
PREMADASA AND OTHERSSUPREME COURT.
DR. SHIRANI BANDARANAYAKE, J.
ANDREW SOMAWANSA, J.
SC (APPEAL) NO. 57A/2006SC (SPL) L.A. NO. 343/2003
A. NO. 139/90(F)
C. RATNAPURA NO. 1172/PSEPTEMBER 4, 2008
Kandyan Law Declaration and Amendment Ordinance of No. 39 of 1938Section 10(1), Section 27 – Its applicability in respect of persons dying afterthe commencement of the Ordinance in deciding question of heirship -Section 10(1) applicability of the provisions of the Ordinance to determinecharacter of property – No retrospective application under the Ordinanceunless expressly provided.
This is an appeal from the judgment of the Court of Appeal dealing withquestions arising under the Kandyan Law Declaration and AmendmentOrdinance No. 39 of 1938. The appellants and the respondents agreed at thehearing that this appeal could be argued on the following questions:
Have their Lordships of the Court of Appeal erred in holding that theprovisions of the Kandyan Law Declaration and AmendmentOrdinance No. 39 of 1938, applied in respect of persons dying afterthe commencement of the said Ordinance in deciding questions ofheirship, but did not apply in determining the nature and character ofthe inheritance?
Have their Lordships of the Court of Appeal erred in holding that thedefinition of paraveni in section 10(1) of the said Ordinance did notapply to the property in question at the time of the death of Podimenikereferred therein?
Held:
Section 10 of the Kandyan Law Declaration and AmendmentOrdinance No. 39 of 1938 clearly indicates that the proviso or theprovisions of Section 10(1) do not have retrospective applicationregarding paraveni property. Section 27 of the Ordinance clearlystates that the Ordinance shall not have retrospective effect unlessexpressly so provided in the Ordinance.
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For the property in dispute to be categorized as paraveni property ithas to be identified under one of the three categories specified inSection 10(1) a, b, and c, subject to the conditions stipulated in theproviso to Section 10 of the Ordinance.
Held further:
Acquired property consists of property obtained in other ways such asby accession, dowry, gift, prescription, purchase, occupation byoperation of law or by royal favour.
The Kandyan Law Declaration and Amendment Ordinance came intoeffect in January 1939 and if any person dies after the said Ordinancehad come into effect, the provisions of said Ordinance would beapplicable in deciding the succession of that person's acquiredproperty.
Cases referred to:
Ausadahamy v Tikiri Banda (1950) 52 NLR 314.
Dingiri Banda v Madduma Banda (1914) 17 NLR 201.
Ukkuwa v Banduwa (1916) 19 NLR 63.
APPEAL from the Judgment of the Court of Appeal.
Navin Marapona for respondents-appellants-Appellants.
D.S. Wijesinghe, PC with Kaushalya Molligoda for 1st and 2nd plaintiffs-respondents-respondents.
L.C. Seneviratne, PC with U.H.K. Amunugama and S. Gunasekera for 7th to10th defendants-respondents-respondents.
Cur.adv.vult
February 2, 2008
DR. SHIRANI BANDARANAYAKE, J.This is an appeal from the judgment of the Court of Appeal dated
By that judgment the Court of Appeal dismissed theappeal of the 11th, 12th and 14th defendants-appellants-appellants(hereinafter referred to as appellants) and affirmed the order of thelearned District Judge, who had held, by his order dated05.03.1990, that Ukkinda, Suratha and Malmada were the originalowners of the land and therefore 1st and 2nd plaintiff-respondents- .respondents (hereafter referred to as respondents) were entitled to1/3 share in the land sought to be partitioned, which was owned byone of the original owners, viz., Ukkinda. The appellants appealed
Babbuwa and Others v
scPremadasa and others (Dr. Shirani Bandaranavake, J.)245
to this Court for the appellants and the learned President's Counselfor the respondents agreed at the hearing that this appeal could beargued on the basis of the following questions:
Have their Lordships of the Court of Appeal erred in holdingthat the provisions of the Kandyan Law Declaration andAmendment Ordinance, No. 39 of 1938, applied in respectof persons dying after the commencement of the saidOrdinance in deciding questions of heirship, but did notapply in determining the nature and character of theinheritance?
Have their Lordships of the Court of Appeal erred in holdingthat the definition of paraveni property in section 10(1) of theOrdinance did not apply to the property in question at thetime of the death of Podimenike referred to therein?
The facts of this appeal as submitted by the learned Counselfor the appellants and the respondents, albeit brief, are asfollows:
The respondents had instituted this partition action in the DistrictCourt of Ratnapura and sought to partition the land known as"Indikade Kumbura1' described morefully in the schedule to theplaint filed by them. The appellants and the 1st to 10th defendants-respondents (hereinafter referred to as the defendants) had filedtheir statements of claim and admittedly there had been severaldifferent pedigrees and diverse claims to shares by the parties tobe considered by the learned District Judge.
After trial, learned District Judge had held that, three (3)persons, viz., Ukkinda, Malmada and Suratha, named in the plaintwere the original owners of the land that was sought to bepartitioned and that they owned the corpus in equal (1/3) shares.The respondents were therefore declared entitled to 1/3 share ofUkkinda.
The appellants, aggrieved by the said judgment of the learnedDistrict Judge of Ratnapura in the said partition action, preferred anappeal to the Court of Appeal challenging the decision of the 1/3share of Ukkinda. All parties had accepted the finding of the learnedDistrict Judge on the three (3) original owners and the sharescredited to them and the only matter, which came up for
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consideration in the Court of Appeal was whether the 1/3 share ofUkkinda had devolved on the appellants or the respondents. Sincethe shares allocated to the other defendants were not in issue,learned President's Counsel for the 7th defendant, Mr. L.C.Seneviratne, was requested to assist the Court of Appeal asamicus. The learned President's Counsel for the 7th defendant,had clearly taken up the position that the said 1/3 share of Ukkindadevolved on the respondents.
It was common ground that the following facts were not indispute between the parties:
1/3 share of Ukkinda was conveyed to GamasagamGamaethige Malhamy on Deed No. 619 dated 02.11.1882
(Pi);
the said Gamasagam Gamaethige Malhamy conveyed hisrights to his daughter Gamasam Gamaethige Ranmenike onDeed No. 27497 dated 18.01.1897 (P2);
the said Ranmenike was married to one ImihamilageHaramanis Appuhamy;
the said Ranmenike died leaving Podimenike;
that on Ranmenike's death, the said property devolved onher daughter Imihamilage Podimenike, and
the said Podimenike died intestate and issueless on01.01.1944.
Accordingly it was not disputed that the main issue that has tobe considered was whether upon the death of Podimenike, her titledevolved on her father,viz., Imihamilage Haramanis Appuhamy, asclaimed by the respondents or her maternal uncle, viz., GamasamGamaethige Appuhamy, as claimed by the appellants. In order toexamine the said question, it was necessary to ascertain whetherthe property was paraveni property or acquired property ofPodimenike at the time of her death. This issue is of importance asif the property in question was paraveni, after her death theproperty would have vested in her maternal uncle and if it wasacquired property it would have vested in her father.
Learned Counsel for the appellants contended that the propertyin question was the maternal paraveni property of the saidPodimenike and therefore the appellants were entitled to succeedin this appeal.
Babbuwa and Others v
SCPremadasa and others (Dr. Shirani Bandaranayake, J.)247
Learned Counsel for the appellants further contented that thelearned trial Judge, although was correct in applying the proviso tosection 10 of the Kandyan Law Declaration and AmendmentOrdinance, No. 39 of 1938 (hereinafter referred to as theOrdinance), had erred in applying a wrong definition, in describingparaveni property.
The contention of the learned Counsel for the appellant was thatthe said Podimenike had died in 1941 after the Ordinance cameinto force and therefore the provisions of'the said Ordinance mustbe applied in its totality. According to the learned Counsel, thenature of the property in question must be determined solely byapplying the definition in section 10(b) of the said Ordinance, whichwould clearly show that the property in dispute must be regardedas Podimenike's maternal paraveni property.
On a consideration of the submissions of the learned Counselfor the appellants and the learned President's Counsel for therespondents, it is evident that the only question that has to beexamined was that whether the property in dispute could bedescribed and recognised as paraveni property as contended bythe learned Counsel for the appellants or whether it belongs to thecategory of acquired property as contended by the learnedPresident’s Counsel for the respondents.
It is common ground that Podimenike died on 01.11.1944 (11V7)intestate and left no surviving spouse or issue and that theKandyan Law Declaration and Amendment Ordinance, No. 39 of1938 came into force on 01.01.1939. The said Ordinance wasenacted to declare and amend the Kandyan Law in certainrespects, deals with the inheritance of immovable and movableproperty. Section 10 of the said Ordinance which is containedunder the inheritance of immovable property, specifically deals withthe question of paraveni property and states as follows:
"10(1) The expressions "paraveni property" or "ances-tral property" or "inherited property" andequivalent expressions shall mean immovableproperty to which a deceased person wasentitled –
(a) by succession to any other person who hasdied intestate, or
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under a deed of gift executed by a donor towhose estate or a share thereof the deceasedwould have been entitled to succeed if thedonor had died intestate immediately prior tothe execution of the deed; or
under the last will of a testator to whose estateor a share thereof the deceased would havebeen entitled to succeed had the testator diedintestate;
Provided, however, that if the deceased shall nothave left him surviving any child or descendant,property which had been the acquired property ofthe person from whom it passed to the deceasedshall be deemed acquired property of thedeceased.
Section 10(3) of the said Ordinance, which refers to the acquiredproperty clearly states that,
"Except as in this section provided, all property of adeceased person shall be deemed to be acquiredproperty."
It is therefore apparent that for the property in dispute to becategorized as paraveni property, it has to be identified under oneof the three (3) categories specified in Section 10(1) a.b, and c,subject to the conditions stipulated in the proviso to Section 10 ofthe Ordinance.
As stated earlier, it is important to note that, Podimenike diedleaving no surviving spouse and issueless, which is a fact admittedby the appellants as well as the respondents. Consequently, theproviso to section 10 of the Ordinance comes into effect and thus itbecomes relevant and necessary to ascertain whether the propertyin question was acquired property or not in the hands ofRanmenike from whom it was passed to the deceasedPodimenike.
The aforementioned position that the proviso to Section 10 ofthe said Ordinance is applicable to the property in dispute is alsoadmitted by both parties. Accordingly it is common ground that it is
Babbuwa and Others v
SCPremadasa and others (Dr. Shirani Bandaranayake, J.) ,249
necessary to examine whether the property in dispute was theacquired property of Ranmenike or whether it was her paraveniproperty.
The contention of the learned Counsel for the appellants wasthat Ranmenike had got the property in question by way of a deedof gift (P2) from her father namely, Malhamy Muhandiram. Since itwas given under a deed or gift, learned Counsel for the appellants,strenuously contented that, the provisions of section 10(1) (b) of thesaid Ordinance shall be applicable and accordingly the saidproperty must be considered as paraveni property of Ranmenike.The position taken by the learned Counsel for the appellants is that,although, Podimenike's mother, Ranmenike had deceased prior tothe introduction of the Ordinance, the provisions laid under the saidOrdinance should be applicable to ascertain the category ofproperty that is in dispute.
The contention of the learned President's Counsel for therespondents was that the law as it stood on the date the propertyin dispute became vested in Ranmenike should apply, andtherefore the law, which was in force prior to the Ordinance cameinto being should be applicable when dealing with theaforementioned question.
In fact the case law dealing with paraveni property supports thecontention of the learned President's Counsel for the respondentsand Ausadahamy v Tikiri Bandaih is a decision in point. Thelearned Counsel for the appellants however, submitted that thecase of Ausadahamy (supra) has been wrongly decided and thatthe line of reasoning in that case did not accurately take intoaccount the fact that the definitions in the 1938 Ordinance had tobe applied uniformly to all questions, which arose for decision afterits enactment. The contention of the learned Counsel for theappellants was that in all disputed questions arising after the 1938Ordinance, the only definition of paraveni property that could beapplied was the definition in the Kandyan Law Declaration andAmendment Ordinance.
The said Ordinance as stated earlier, defines the expression,paraveni property in section 10 and a careful examination of the
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said provision, clearly indicates that the proviso or the provisions ofsection 10(1) do not have retrospective application regardingparaveni property. In fact section 27 of the said Ordinance clearlystated that the Ordinance shall not have retrospective effect unlessexpressly so provided in the Ordinance. Section 27, thus reads that,
"The provisions of this Ordinance shall not have,and shall not be deemed or construed to have, anyretrospective effect except in such cases whereexpress provision is made to the contrary."
Section 10(1) of the Ordinance, as could be clearly seen, hasnot made any express provision to have retrospective application ofits provisions. It was this position that was highlighted in thedecision of Ausadahamy v Tikiri Banda (supra), where Naga-lingam, J. referred to section 27 of the Ordinance and had clearlystated that,
"The words used are very emphatic and admit of noambiguity. No retrospective effect should be givento the provisions of the Ordinance unless it could beshown that express provision is made thatretrospective effect should be given. And to put thematter beyond any argument, the Legislature hastaken pains to say that not only are the provisionsnot to have, but that they shall not be deemed to orconstrued to have retrospective effect."
Having said that Nagalingam, J. had obsen/ed that neither insection 10 nor in any other part of the Ordinance are there wordsfrom which it could be said that express provision has been madefor retrospective effect, being given to the provisions of section 10of the Ordinance.
Moreover Nagalingam, J. had also considered the aspect of theOrdinance, being a declaratory one,. Considering the said aspect itwas stated that,
"It is however, said that the Ordinance being adeclaratory one, retrospective effect should begiven to its provisions – Attorney-General vTheobold. The rule too is subject to qualification. Inthe words of Lord Watson in Young v Adams,
Babbuwa and Others v
scPremadasa and others (Dr. Shirani Bandaranavake, J.)251
It may be true that the enactments aredeclaratory in form; but it does not necessarilyfollow that they are therefore retrospective andwere meant to apply to acts which had beencompleted or to interests which had vestedbefore they became law."
The Kandyan Law Declaration and Amendment Ordnancecannot be regarded entirely as an enactment, which is declaratoryas it deals with amendments as well. The cumulative effect of allthe aforementioned aspects is that the provisions of the saidOrdinance cannot be applied retrospectively unless there isexpress provision to that effect.
It is therefore quite evident that their Lordships of the thenSupreme Court in Ausadahamy v Tikiri Banda (supra) had noterred when it stated that,
"Now, neither in section 10 nor in any other part ofthe Ordinance are there words from which it couldbe said that express provision has been made forretrospective effect being given to the provisions ofsection 10; therefore, even a construction of thesection so on to give it retrospective effect iscompletely barred."
Accordingly, since there is no possibility for the application of theprovisions of the Kandyan Law Declaration and AmendmentOrdinance to determine the character of the property ofRanmenike, it is evident that it would be necessary to apply theKandyan Law to decide the nature of her property.
Under Kandyan Law, the property could be classified intodifferent groups, but the classifications of chief importance arethose which divide things into movables and immovables, inheritedand acquired. The distinction between inherited and acquiredproperty is of considerable importance. Inherited property or as itwas known in the Kandyan regions – paraven property – belongsto several kinds. Referring to these different kinds of property, H.W.Thambiah, (Principles of Ceylon Law, H.W. Cave and Company,1972, pg. 160) states that,
252Sri Lanka Law Reports[2008] 1 Sri L.R
"Inherited property by virtue of paternity is of twokinds. It may consist of property inherited from thefather or from the estate of any other relation {piyauruma)', or it may consist of the right of a father tosucceed to the estate of the deceased child (jatakauruma).
Property obtained by virtue of maternity is of twokinds; a person may inherit the property from hismother's estate or from the estate of any relationfrom the mother's estate or from the estate of anyrelation from the mother's side (mau uruma)] or themother may sometimes in certain instancessucceed to the estate of a deceased child (daruUruma)"
Acquired property on the other hand consists of propertyobtained in other ways such as by accession, dowry, gift,prescription, purchase, occupation, operation of law or by royalfavour. Accordingly, as H.W. Thambiah {supra) has clearly pointedout, under Kandyan Law, property falls into three (3) generalcategories, viz., paternal paraveni, maternal paraveni and acquiredproperty. The intestate succession therefore could vary dependingon the nature of the property that had been inherited.
As referred to earlier, the question in this matter had arisenwhen the respondents instituted a partition action (No, 1172/P) inthe District Court of Ratnapura and sought to partition the landcalled and known as "Indikade Kumbura", described morefully inthe schedule to the plaint. It was common ground that Ukkinda,Malmada and Suratha were the original owners of the disputedland and that Ukkinda, being one of the original owners, wasentitled to 1/3 share of the said land in dispute.
The 1/3 share of Ukkinda was conveyed to GamasamGamaethige Malhamy on Deed No. 619 dated 02.11.1882 (P1).The said Gamasam Gamaethige Malhamy conveyed his rights tohis daughter Gamasam Gamaethige Ranmenike on Deed No.27497 dated 18.01.1897 (P2). It is therefore to be noted that thesaid Malhamy did not inherit the said 1/3 share, but had purchasedit at a Fiscal's Sale on a Fiscal's Conveyance No. 619 dated
Babbuwa and Others v
SCPremadasa and others (Dr. Shirani Bandaranayake, J.)253
02.11.1882. Accordingly it was the said acquired property thatMalhamy had gifted to his daughter Ranmenike in 1897.
The question as to whether the property that has been giftedcould be considered as acquired property was examined in DingiriBanda v Madduma BandaW by Lascelles, C.J., and De Sampayo,A.J. In this matter, Ukkurala and Mutumenika had a daughter,Kirimenika (died in 1868), who was married in binna to plaintiff.Ukkurala gifted in 1888 along with Mutumenika his land to hisgrandson, Tikiri Banda, subject to the condition that he shouldrender assistance, etc., to Ukkurala and Mutumenika. Tikiri Bandadied leaving a son, Ran Banda, who died issueless in 1906.Mutumenika in 1907 (her husband being then dead) purported togift the land to her brothers. De Sampayo, A.J. held that,
Mutumenike's deed in favour of her brothers did not conveyany title to them, as the land belonged to Ukkurala and notto Mutumenike;
That on Ran Banda's death the property devolved on hispaternal grandfather (Kirimenike's husband) and that;
in the hands of Tikiri Banda himself the property wasacquired, and not paraveni or ancestral property.
The decision in Dingiri Banda (supra) was followed in Ukkuwa vBanduwaW, where Ennis and De Sampayo, J.J., held that propertygifted to a person is acquired property of that person. Consideringthe question in issue, De Sampayo, J. stated that,
"Property gifted to a person is 'acquired property' ofthat person. Ukkurala v Tillekeratne and Kiri Menikav Mutu Menika. The view taken in those casesappears to be in accordance with the principle; andI myself adopted it in Dingiri Banda v MaddumaBanda, and held that, "acquired property" isopposed to paraveni or inherited property, and thatproperty gifted to a son by the father was 'acquiredproperty' of the son."
Discussing the types of property and what they include, FA.Hayley (A Treatise on the Laws and Customs of the Sinhalese,Navrang, New Delhi, 1993 pg. 220) has clearly stated that,
254Sri Lanka Law Reports[2008] 1 Sri L.R
"Acquired property includes things obtained bypersonal effort, by gift in return for assistancerendered, by sale or exchange, by way of dowry,gift or royal favour."
On consideration of the aforementioned it is evident thatRanmenike's property was acquired property, which was laterinherited by her daughter, Podimenike. Accordingly the propertyinherited by Podimenike was also acquired property.
The next question which arises is that on whom the acquiredproperty of Podimenike devolved on her death. If I may repeat, theKandyan Law Declaration and Amendment Ordinance came intoeffect in January 1939 and Podimenike had died in 1944. Since atthe time of Podimenike's death, the said Ordinance had come intoeffect, the provisions of the said Ordinance would be applicable indeciding the succession of Podimenike's acquired property.
As stated earlier, Podimenike had died intestate and issueless.She had no surviving brothers or sisters and only her father wasamong the living at the time of her death. Section 16 of theKandyan Law Declaration and Amendment Ordinance deals withsuccession to person dying intestate leaving no surviving spouse ordescendant. Considering the fact that it was only Podimenike'sfather who had survived her, provisions of Section 16(c) of theOrdinance should be applicable to the property and the said sectionreads thus:
"If there be no brother or sister or descendant of adeceased brother or sister, the parents in equalshares, or the surviving parent as the case may be,shall become entitled to the property;"
Accordingly, Podimenike's father Haramanis Appu, being theonly surviving parent, should be entitled to the 1/3 share ofPodimenike, which was in dispute.
In the circumstances, the respondents, who had later bought theproperty from Haramanis Appu on P4, would be entitled to the said1/3 share.
It is thus, apparent that the learned District Judge in hisjudgment had correctly held that it was Imihamilage Haramanis
SCEdman Abeywickrema v Dr Upali Athauda and another 255
Appuhamy, the father of Podimenike, who had inherited her title tothe property in question upon her death and on that basis had heldthat the respondents were entitled to the 1/3 share of Ukkinda onthe property being partitioned, which judgment was affirmed by thelearned Judges of the Court of Appeal.
For the reasons aforesaid, I answer both questions of law, Nos.1 and 2, on which Special Leave to appeal was granted, in thenegative. The judgment of the Court of Appeal dated 05.11.2003 isaccordingly affirmed and this appeal is dismissed.
I make no order as to costs.
DISSANAYAKE, J.-I agree.
SOMAWANSA, J.-I agree.
Appeal dismissed