DEERANANDA THERO, Appellant, and RATNASARA THERO, Respondent

002-NLR-NLR-V-60-DEERANANDA-THERO-Appellant-and-RATNASARA-THERO-Respondent.pdf


Deerananda Thero v. Ratnasara Tkero
7
1958 Present: H. N. G. Fernando, J., T. S. Fernando, J., andSinnetamby, J.DEERANANDA THERO, Appellant, and RATNASARA THERO,
Respondent
S.G. 95—D. C. A nuradhapura, 3,760/L
Abatement of actions—Action to establish personal right to cm office—Cause of actionpurely personal—-Death of defendant pending suit—Effect on action—-Actiopersonalis moritur cum persona—Jurisdiction of Court—Difference betweenillegality and irregularity—Buddhist ecclesiastical law—Civil ProcedureCode, s. 392.
Section 392 of the Civil Procedure Code, which declares that the death of aplaintiff or defendant shall not cause the cause of action to abate if the right tosue on the cause of action survives, impliedly declares also that, if the right tosue on the cause of action does not survive, the death either of the plaintiff orthe defendant causes the action to abate. Accordingly, where a plaintiff’s suitagainst the defendant is primarily to establish his personal right to an officeand the cause of action is purely personal, the suit will abate on the death of thedefendant during the pendency of the suit.
Want of jurisdiction in a court amounting to an illegality and not merely toa procedural irregularity cannot be cured by consent of parties.
The plaintiff, claiming title to the incumbency of a Buddhist temple, sued thedefendant alleging that the latter was (a) unlawfully disputing his right to theinoumbency and (b) was disobedient and disrespectful to him and obstructinghim in the lawful exercise of his rights as incumbent. He prayed that he bedeclared the incumbent and that the defendant and his agents be ejected from•the temple. The question of title to or possession of the temporalities of thetemple did not arise in the aotion.
While the trial of the aotion was partly heard, the defendant died. Theplaintiff then made application alleging that any rights which the defendanthad to the incumbency devolved on the present appellant and moved that theappellant be substituted in place of the defendant. The appellant consented tothe substitution.
Held, that, on the death of the original defendant the action abated by virtueof the provisions of section 392 of the Civil Procedure Code. The action beingone of a personal nature against the original defendant, the right to sue ceasedon the death of that defendant. Even on the assumption that the appellantwas the legal successor of the deceased defendant, it could not be maintainedthat the appellant was liable to be ejected on the original cause of action.The cause of action did not survive on the death of the original defendant, andthe maxim actio personalis moritur cum persona was applicable.
Held further, that the fact that the appellant expressly consented to thesubstitution of himself as defendant did not preclude him subsequently fromasserting a want of jurisdiction in the court to continue with the aotion. Thesubstitution and the subsequent proceedings constituted an illegality and not amere procedural irregularity which could be waived by the appellant.
A
JTvPPEAL from a judgment of the District Court, Anuradhapura.
H. W. Jayewardene, Q.C., with B. S. G. Ratwatte and N. R. M.Daluwatte, for the substituted defendant-appellant.
Sir Lolita Rajapalcse, Q.G., with K. Herat and T. B. Dissanayake, forthe plaintiff-respondent.
Gur. adv. vuU.
8
T. S. FERNANDO, J.—Deerananda Thero v. Balnasara Thero
January 17, 1958. T. S. Fernando, J.—
The plaintiff-respondent claiming to be entitled as a pupillarysuccessor of one Karambewatte Piyadassi Thero to the incumbencyof a temple known as Panikkankulama alias Manikkankulama PuranaRaja Maha Yihare instituted this action on 15th May 1953 againstKonwewa Piyaratana Thero alleging that the latter is (a) unlawfullydisputing his right to the incumbency and (b) is disobedient and dis-respectful to him and obstructing him in the lawful exercise of his rightsas incumbent. He prayed that he be declared the incumbent and thatthe defendant and his agents be ejected from tho temple. PiyaratanaThero, the defendant, filed answer alleging that Piyadassi Thero hadabandoned the temple in 1932, and that the dayakayas with the approvalof the Chief High Priest of the Province had installed him as the incumbentin the same year 1932. By an amendment of the answer a plea that theplaintiff’s right of action, if any, was prescribed was also taken by him.
The trial commenced on 26th November 1953, was continued on thefollowing day, and was then fixed for resumption on the 23rd and 24thFebruary 1954. It would appear that Piyaratana Thero died on 2ndFebruary 1954 before the trial could be resumed, and on 16th February1954 the plaintiff’s proctors moved that the case be taken off the trialroll to enable the plaintiffs to have the defendant’s successors substituted.It is recorded in the journal that the defendant’s proctors consented tothis motion, but it is difficult to appreciate what status they had on 16thFebruary 1954 to signify any such consent. The motion was, however,allowed by the District Judge.
On 22nd March 1954, the plaintiff’s proctor filed petition and affidavitof the plaintiff which alleged that any rights the defendant had to theincumbency had devolved on one Udiyankulame Deerananda Thero(the appellant on this appeal), and that it had become necessary tosubstitute the latter in place of the defendant. They moved the Courtto issue notice on the appellant to show cause, if any, against the substi-tution. The defendant appeared in court on 13th May 1954 inresponse to the notice and consented to the substitution. A proxysigned by the appellant dated 13th May 1954 in favour of a proctor wasfiled in court on 27th May, and the trial which had been interruptedwas resumed on 8th July and concluded on 13th August 1954. Byhis judgment delivered on 11th November 1954, the learned DistrictJudge declared the plaintiff to be the incumbent and ordered the eject-ment of the appellant. The appeal is against this judgment, and counselfor the appellant has contended that the judgment should not be allowedto stand as the action instituted by the plaintiff abated on the death ofPiyaratana Thero. He has argued that the action being one of a personalnature against the original defendant, the right to sue ceased on thedeath of that defendant, and that we should give effect to the maximactio personalis moritur cum persona by making an order abating theaction. He has argued, alternatively, that if the right to sue the originaldefendant survived the only person who could have been substitutedwas not the appellant but the legal representative of the defendant asdefined in section 394 (2) of the Civil Procedure Code.
T. S. FERNANDO, J".—■Drerananda Thero v. Batnasara Thero
9
To consider the soundness of counsel’s contention, we must examinethe nature of the action filed against Piyaratana Thero. As I have statedalready at the outset of this judgment, the allegation with which theplaintiff invoked the assistance of the court was that Piyaratana Therowas unlawfully disputing his rights, was disobedient and disrespectfulto him and was obstructing him in the exercise of his rights as incumbent.The action as so framed was therefore undoubtedly of a personal natureand was limited to seeking a declaration of his alleged status of incumbent.It is true that the ejectment of the defendant and his agents was alsoclaimed, but this claim was purely incidental to the claim to be theincumbent and was not a claim to eject the defendant on the ground ofparajika conduct of the latter. It must be remembered that the defendantas well as the appellant being members of the same paramparawa or lineof succession would, in the absence of parajika or contumacious conducton their part, both have been persons who would have been entitled toreside in the temple—(see Dhammajoty Unnanse v. Parenathale1;Saranankara Unnanse v. Indajoti Unnanse s ; Siriniu-ase v. Sarananda 3;-Ounananda Unnanse v. Dewarakkita Unnanse 4). The question of titleto or possession of the temporalities of the temple did not arise in theaction. Even though the ejectment of the appellant had been soughton the grounds referred to above, it is difficult to see how the right toresidence of the appellant can be tainted by grounds purely personal tothe defendant.
Section 392 in Chapter XXV of the Civil Procedure Code whichregulates the continuation of actions after alteration of a party’s statusdeclares that the death of a plaintiff or defendant shall not cause theaction to abate if the right to sue on the cause of action survives. Appellant’scounsel argued that this implies that, if the right to sue or the causeof action does not survive, the death either of the plaintiff or the defendantcauses the action to abate. The correctness of this argument wasdisputed by plaintiff’s counsel, but it seems to me that the argumentis sound. In Sham Chand Giri v. Ehayaram Panday 5, Sale J. inter-preting section 361 of the Indian Code of Civil Procedure (same as section■392 of our Code) observed that “ the section does not predicate con-versely that the death of a party shall cause the suit to abate, if theright to sue does not survive, but that is clearly the practical effect ofthat section and of the subsequent sections relating to abatement ”. Inthat case the suit was brought to have it declared that the plaintiffwas entitled to succeed as mohant of a shrine, and on the death of the* plaintiff an application to be substituted in his place was made on thegrounds which put the applicant into opposition to the original plaintiff•and made his claim not dependent on the original plaintiff’s case butin conflict with it. It was held that the right to sue could not be saidto survive to the applicant within the meaning of the sections of the■Code relating to abatement of suit, but that the suit abated by the•death of the plaintiff. In the course of his judgment, Sale J. statedthat “ the suit was of a personal character in as much as its object is to
3 {1921) 22 N. L. B. at 320.
* (1924) 26 N. L. B. at 276.
1 (1881) 4 S. G. G. 121.
8 (1918) 20 N. L. B. at 398.
1 (1894) 22r.Cal. 92.
10
T. S. FERNANDO, J.—Deerananda Then v. Ratnaeara Then
establish a right to a personal office, and for that reason it appears tome that the right to sue does not survive. The result is that the actionabates Referring to section 371 of the Indian Code, the learned judgestated that “ the language of the Section seems clearly to indicate thatthe cause of action of the original and revived suit must be the same,and that no fresh cause of action can be imported into the revived suit ”.
Tho ruling in Sham Chand Giri’s case was referred to with approvalin the Indian decision in Ramsarup Das v, Rameshwar Das1, Sinha J.making the following observations (see page 189) :—
“ If a plaintiff is suing to establish his right to a certain propertyin his own rights and not by virtue of his office, certainly the causeof action for the suit will survive, and his legal representative cancontinue the suit on the death of the original plaintiff, either duringthe pendency of the suit or of the appeal. But, where the plaintiff’ssuit is primarily to establish his'peraonal right to an office which wouldentitle him to possession of the property in question, on his death,either during the pendency of the suit or during the pendency of theappeal, the right to sue would not survive, and the suit will thereforeabate ”.
and again,
“ The principle is well established that the substituted party canonly prosecute the cause of action as originally framed in the suit,and, if it becomes necessary to alter the pleadings it becomes mani-fest that the original cause of action is being substituted by anothercause of action which could very well form the subject-matter of aseparate suit. In such a case, therefore, it is a new suit which has tobe tried. The following observations of Their Lordships of the MadrasHigh Court in the case of Subbaraya Mv.da.li v. Manika Mudali (19Mad. 345) are relevant to the question before us:— ‘ The generalrule is that, as the representative of a deceased plaintiff can onlyprosecute the cause of action as originally framed, so the defendantcan raise no other defence against him than he could have raisedagainst the deceased
Although both cases cited above dealt with instances of substitutionin place of a deceased plaintiff, the principle enunciated will, even asthe language of section 392 expressly indicates, apply also in the case ofa substitution in place of a deceased defendant. The converse of theprinciple so enunciated in section 392 is in my opinion embodied in the’maxim “ actio personalis moritur cum persona ”. The history of thismaxim has been examined by Bowen L.J. in the course of delivering thejudgment of the majority of the Court of Appeal in the English case ofPhillips v. Homfray 2 who states—(see page 456)
“ Whatever its wisdom or policy, the rule with certain limitationsand explanations is as old as the English law. By the Civil law,penal actions arising from wrong were not generally avaik^le againstthe heir, and certain actions ex contractu fell under the sanl^disability.
1 {1950) A. I. S. {Patna) 184.{1883) L. R. U Oh. D. 439.
T. S. FERNANDO, J.—Deerananda Thero v. Ratnasara Thero
11
By the English law, the executor represents the debts and property,but not the person of the testator. It seems to have been thoughtthat there would be an injustice in making the executor stand in theplace of the dead man when the causes of action were purely personal.‘ The taking up of an executorship says Bacon, ‘ is an engagementto answer all debts of the deceased and all undertakings that Create adebt, as far as there are assets, but does not embark the executor inthe personal trusts of the deceased, nor is he obliged to answer for hisseveral injuries, for none can tell how they might have been dischargedor answered by the testator himself’. And even in some actionsof contract, such as debt where the testator could have waged his law,the executor was not held liable, for this "would have been to deprivehis executor of the benefits of the wages of law. As regards all actionsessentially based on tort, the principle was inflexibly applied
In dealing with the question of the extent to which the right of .actionsurvives upon death of a party, the same learned judge stated (atpage 454):—
“ The only eases in which, apart from questions of breach of contract,express or implied, a remedy for a wrongful act can be pursued againstthe estate of a deceased person who has done the act appear to usto be those in which property, or the proceeds or value of propertybelonging to another, have been appropriated by the deceased personand added to his own estate or moneys. In such cases, whatever the;original form of action, it is in substance brought to recover property,or its proceeds or value, and by amendment could be made such inform as well as in substance. In such cases the action, though arisingout of a wrongful act, does not die with the person. ”
Upon* an examination of the character of the action instituted by theplaintiff against Piyaratana Thero, the original defendant, it appears tome beyond dispute that the cause of action alleged was the wrongful actsof Piyaratana Thero in denying the plaintiff’s claim to the incumbency,and, even on an assumption that the appellant is the legal successor ofPiyaratana Thero, it cannot be maintained that the appellant is liable to,be ejected on that original cause of action. If, on the other hand, the,appellant’s own unlawful denial of the plaintiff’s claim is alleged to be thebasis of the action as continued after the substitution, the cause of actionthen is surely different to that which is said to have survived. , In thesecircumstances it is plain that the cause of action did not survive on thedeath of the original defendant and that the maxim ‘ actio personalismoritur cum persona ’ applies to the ease before us. The result I amcompelled therefore to reach is that the plaintiff’s action abated on'thedeath of Piyaratana Thero on 2nd February, 1954.
Learned counsel for the plaintiff was constrained to admit that theaction did not survive if it was for a declaration of status simplicity,but he argued that the plaintiff’s action was for a declaration of personalstatus together with the emoluments that go with it, and that thereforeno abatement resulted and that the substitution was valid. .1 have'already adverted to the form of the.action and the relief sought to be.
12
T. S. FERNAOT50, J.—Deerananda Thero v. Ratnasara Thero
obtained from the court, and it is therefore unnecessary here to repeatthat the appellant could not have been ejected on the basis of acts■committed or conduct for which the original defendant was aloneresponsible, and that the appellant could in any event be proceeded•against only on a separate cause of action in a separate suit. In thesecircumstances it does not become necessary to consider the situation thatwould have arisen in respect of substitution if the right of action survived•on the death of the original defendant. Appellant’s counsel contendedthat in the event of the right of action surviving, the only person who•could have been substituted in terms of the Civil Procedure Code wasthe original defendant’s legal representative as indicated in section 398 (1),and that it has not been shown that the appellant is such representative.Plaintiff’s counsel, on the other hand, argued that section 398 appliedonly in the case of the death of a defendant who has left an administrablcestate, and is wholly inapplicable to the case of the death of a Buddhistmonk who, he alleged, can leave no estate. Alternatively, he sought tofind justification for the substitution effected on 13th May 1954 in section404 of the Civil Procedure Code. In view, however, of the conclusionalready reached by me that the cause of action in this case did notsurvive on the death of the original defendant, I do not consider itnecessary to embark upon an examination of these arguments.
Counsel for the plaintiff sought to maintain the judgment appealed•from on the ground that the appellant having expressly consentedin the trial court to the substitution of himself as defendant is now■estopped or precluded from asserting a want of jurisdiction in the courtto continue with the action. The point whether the appellant is estoppedfrom questioning the maintainability of the action appears to me to depend■on the further question whether the substitution and the proceedingssubsequent thereto amounted to an illegality or only a mere irregularity•or whether there was only a defect of contingent jurisdiction which was•cured by the consent given by the appellant. Mr. Jayew-ardono has•argued that the substitution and the continuation of the proceedingsthereafter constituted an illegality, while Sir Lalita Rajapakse hascontended that there has been only a procedural irregularity or at most■» defect of contingent jurisdiction (defectus triationis), and that the■consent given by the appellant has had the effect of curing such defect.Mr. Jayewardene has referred us to the statement of the law (reproducedbelow) set out in Spencer Bower’s treatise on Estoppel by Representationat page 182 (1923 ed.):
“ Just as it is a good aflirmative defence to an action on a contractthat it cannot be performed without directly contravening the provi-sions of a statute, and that, by enforcing it or otherwise judiciallytreating it as valid, any court would be sanctioning and condoningsuch contravention, so also, and a fortiori, it is a good affirmativeanswer to a case of estoppel by representation that any closure of therepresentor’s mouth would result in a like judicial recognition of,and connivance at, a statutory illegality
Sir Lalita Rajapakse has relied on other passages appearing in the sametreatise in support of his argument that the appellant cannot be permitted
T. S. FERNANDO, J.—Deerananda Thero v. Ratnasara Tkero
13
mow to agitate the question of a proper substitution of parties or thefurther proceedings taken, particularly on the following statement ofthe law (at page 187):—
“ On the other hand, where it is merely a question of regularityof procedure, or of a defect in ‘ contingent ’ jurisdiction or uon-compliance with statutory conditions precedent to the validity of astep in the litigation, of such a character that, if one of the parties beallowed to waive, or by conduct or inaction to estop himself fromsetting up, such irregularity or want of ‘ contingent ’ jurisdiction ornon-compliance, no new existing jurisdiction is thereby impliedlyextended beyond its existing boundaries, the estoppel will bemaintained and the affirmative answer of illegality will fail
Several authorities were cited before us and it would be useful to considersome of them in dealing with the point. Smurthimite v. Hannay1 wasa case in which several persons joined in one action against a shipownerclaiming damages for non-delivery of the number of bales specified intheir respective bills of lading in the following circumstances. Balesof cotton were shipped by several shippers upon a general ship for carriageto a certain port, the bills of lading being similar. Upon arrival at theport, it was found that the number of bales fell short of those shipped,and that some of the landed bales could not be identified, their markshaving been obliterated. Sixteen holders of bills of lading, nine beingshippers and seven consignees, joined in one action claiming damagesfor non-delivery. It was held that the causes of action of the severalplaintiffs were separate and distinct and could not be joined in one action.Lord Herschell, L.C., in his speech, stated (at page 501)“I cannotaccede to the argument that, even if the joinder of the plaintiffs in oneaction was not warranted by the rule relied on, this was a mere irregularityof which the plaintiffs, by virtue of Order LXX, could not now takeadvantage. If unwarranted by any enactment or rule, it is, in myopinion, much more than an irregularity ”. In the same case, LordRussell stated—(at page 506)—
“ A further point was taken at the Bar on the part of the respondents,namely, that the joinder of the plaintiffs in a way not authorised byOrder XVI was a mere irregularity, and that the appellants came toolate to take advantage of it. This objection is not, in my judgment,well-founded. In my judgment, such joinder of plaintiffs is morethan an irregularity; it is the constitution of a suit as to parties in away not authorised by the law and the rules applicable to procedure ;and apart altogether from any express power given by the rules, itis fully within the competence of the Court to restrain and to preventan abuse of its process ”.
In Craig v. Kanseen 2 it was held that, where proceedings which must betaken inter partes were taken ex parte, this was not a mere irregularity,but had the effect of making the order a nullity, and that the appellantwas entitled ex debito justitiae to have the proceedings set aside.
* (1894) A. G. 494.
* (1943) 1 A. E. R. 108.
u
T. S. FERNANDO, J.—Deerananda The.ro v. Jtatnasara Thero
Where it is shown that the proceedings are illegal in the sense that theCourt had no jurisdiction to proceed to make an order, there is, in myopinion, no room for the argument that it is too late at the stage of appealto object to the proceedings taken and the order of court consequentupon these proceedings. The Privy Council decision in Raja of Ramnadv, Pandiyasaumi 1 cited by counsel for the plaintiff is clearly distinguish-able as the observations of Lord Phillimore therein to the effect that anobjection as to proper representation of a party not taken in the courtsbelow will not be entertained by the Privy Council had reference to acase where the point depended upon a question of fact which, if disputed,should have been determined on evidence. In the case before us thefacts necessary for the decision of the question of abatement of theaction all appear in evidence and are not in dispute at all. In point is thedecision in the case of Norwich Coloration v. Norwich Electric TramwaysCo., Ltd. 2 where the question of a lack of jurisdiction in the court belowwas raised for the first time on appeal. In dealing with a point raisedthat the Court had no jurisdiction to hear the case as it had by statuteto be referred to arbitration, Vaughan Williams L.J. stated—see page125—
“ I can only say with regard to that point that I have alwayssupposed it to be well-established law that the objection that thetribunal has no jurisdiction to entertain the case is one which, at allevents in reference to proceedings in the High Courts may be takenat any time. If the Court in any case is itself satisfied that it has nojurisdiction to entertain the application made, it is its duty, in myopinion, to give effect to that view, taking, if necessary, the initiative up-on itself. The plaintiff’s counsel failed, as it appeared to me, to produceany authority for the proposition that such an objection to the juris-diction could only be taken at the trial, for the case of Mayor of Londonv. Cox (1867) L. R. 2 H. L. 239 has, I think, no application to a caseof this kind. In the absence of authority, I asked upon what legalprinciple they based that proposition. The answer was that there waseither a waiver or something in the nature of an estoppel. As regardswaiver, what is said to have been waived ? It is the provision for. arbitration in section 33 of the Tramways Act, 1870, which is a publicgeneral Act applying to all the tramways in the Kingdom. It is notopen to a party to a litigation to waive such a provision, which is notan agreement, even a parliamentary agreement, between parties. Theprovisions of section 33 must be taken to have been introduced intothe Act for the benefit of the public and therefore nobody can waivethem . . . The same considerations appear to me to apply to theargument that there was something in the nature of an estoppel ”.
I would respectfully adopt the observations quoted above and, in viewof the conclusion reached by me as already stated that the action filedby the plaintiff abated on the death of Piyaratana Thero, the inferenceis clear that the substitution and the subsequent proceedings constitutedan illegality and not a mere curable procedural irregularity. Thejudgment of the District Court and the decree already entered must
1 (1918) A. I. R. (P. C.) 156.
* (1906) 2 K. B. 119.
H. N. 6. FERNANDO, J.—Rafideen v. Sirisena
therefore be set aside, and I make order accordingly. This does not,of coarse, preclude the plaintiff from filing a fresh suit, if so advised,against the appellant. The merits of the rival claims to the incumbencyhave not been canvassed before us, and I refrain from saying anythingthereon which may possibly have the effect of prejudging any issue inany such future suit.
In regard to costs, as the appellant consented in the Distriot Courtto the application for substitution, the appropriate order to be made is>that each party shall bear his costs in the Court of trial. The appellantwill, however, be entitled to the costs of this appeal.
H. H. G. Fjsbnando, J.—I agree.SinnetambY, J.—I agree.
Appeal allowed.