WIMAX.ARATNE, J.—Ranasrnghe v. de Silva
1976 Present : Wimalaratne, J., Sirimane, J., and Gunasekera, J-D.M.C. RANASINGHE, Appellant, and J. A. M. D. DE SILVA,
S. C. 56/72—D. C. Negombo, 1327/ L
Prescription Ordinance—Declaration that a notarially executed deed isnull and void—Action prescribed within 3 years of date of execu-tion of deed—Section 10 of Prescription Ordinance.
An action for a declaration that a notarially executed deed isnull and void is prescribed within 3 years of the date of executionof the deed in terms of section 10 of the Prescription Ordinance.
APPEAL from a judgment of the District Court, Negombo.
H. W. Jayewardene, with Percy Valentine and SriyanganeeFernando, for the Defendant-Appellant.
A. C. Gooneratne, with R. C. Gooneratne, for the Plaintiff-Respondent.
Cur. adv. vult.
August 4, 1976. WlMALAJRATNE, J.
The Plaintiff instituted this action on 6th May, 1968 prayingfor a declaration that Deed No. 5983 dated 28th May 1963,attested by J. P. Jayasinghe, Notary Public, was null and voidand of no force or avail in law.
Amongst the pleas taken up by the Defendant was that thePlaintiff’s rights, if any, were prescribed in law.
The learned District Judge held that the said deed was nulland void because the Plaintiff had been compelled to executeit by threat, fear, undue influence and coercion exercised on
&cingaralv/tgam v. Colombo Municipal Council
her by the Defendant. He also held against the Defendant onthe plea of prescription, for the reason that what the plaintiffwas seeking was a declaration of nullity of the deed, and thatthe Prescription Ordinance (Cap. 68) does not apply to suchaction.
In the case of Thiagarajah vs. Karthigesu, 69 New LawReports, page 73, which was cited before the learned DistrictJudge, the question of the applicability of the PrescriptionOrdinance did not arise, because the Plaintiff’s action to havehis status declared was commenced within three years of thedate when a purported customary marriage applicable to theMukkuwa community, had taken place. What the Court heldin that case was that the cause of action arose upon the denial3f the plaintiff’s status of bachelor ; and to deny that statuswas to deny his right and his capacity to contract a validmarriage.
Similarly, in the instant case, the cause of action accrued on28.5.63. That was the date on which the plaintiff’s rights to theland in question were deprived as a result of the execution ofthe deed. The action for relief on that cause of action should,therefore, have been commenced within three years of thatdate, in terms of section 10 of the Prescription Ordinance.
The learned District Judge should have answered the issueof prescription in favour of the Defendant. I would, therefore,set aside the judgment and decree on that ground, and dismissthe Plaintiff’s -action with costs.
The Defendant-Appellant will be entitled to the costs of
Sirimane, J., I agree.
Gtjnasekera, J.—I agree.
D. M. C. RANASINGHE, Appellant, and J. A. M. D. DE SILVA, Respondent