048-NLR-NLR-V-79-2-DON-SADIRIS-MAHAVITHARNE-Appellant-and-ATTANAYAKE-MUDIYANSELAGE-UKKU-AMMA-an.pdf
Muluiviltuirne v. Vk!r>t Ainma
•l-'7
1978 Present: Samarakoon, C.J., Ismail, J. and Ratwaite, J.
DON SADIRIS MAUAVITHARNE, Appellant
and i>
ATTANAYAKE MUDIYANSELAGE UKKU AMMA andOTHERS, Respondents
S. C. No. 103/71 (Inty.)-D. C. Kandy No. 6207/P
Estoppel—Pica taken against plaintiff in partition actictL—Admission oftitle by stick piriinti/)' in a testamentary action and settlement thenentered—Plaintiff not a party in such testarrenppry actiQn—Under-taking to file present action on basis of *settlement—Differentposition taken up—Amended plaint in partition action—Whetherplea of estoppel against him entitled to succeed.
The plaintiff instituted a partition action claiming'a 3/8 share ofa land upon shares purchased from certain heirs of the originalowner r.ow deceased, acknowledging title in the others as heirs ofihe deceased owner. Later he filed an arriended plaint pleadingthat two of the heirs (1st and 5th defendants, respectively) sincethey had gone out in deega, had forfeited their rights to thepaternal inheritance and accordingly plaintiff now claimed a 3/6share. Counsel for 5th defendant- argued that the plaintiff wasestopped from denying the rights of the 1st and 5th defendantsby reason of his admissions in D.C. Kandy Case No. 1047/T. Theplaintiff was not joined as a party in that testamentary case buthad participated in a settlement thereby facilitating it and agreedto the rights of the present 1st and 5th defendants.
Held : That the plea of estoppel .taken on behalf of the 5thdefendant must be upheld. Although the plaintiff-appellant wasnot a party to the testamentary case, yet he attended Court andtook pa.-t in the settlement in that action. He undertook andpromised that this action would be in conformity with that settle-ment and cannot now be allowed in equity to go back on such apromise.1
Central London Property Trust, Ltd. v. High Tress House Ltd.,(1956) 1 All E. R. 256 (per Denning, J.) cited'with approval.
A
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PPEAL from a judgment of the District Court, Kandy.
C. Ranganathan, Q.C., with A. Chinniah and A. Sirinivasun, forthe plaintiff-appellant.
T. B. Dissanayake, for the 5th defendant-respondent.
Cur. adv. vult
428SAMARAKOON, C.J.—Mahavitharne v. Ukku Amnia
July 25, 1978. Samarakoon, C.J.
The plaintiff-appellant instituted this action on 12th April, 1962,for a partition of a land called Ambagaspitiya. Admittedly theoriginal owner of it was one Attanayake Mudiyanselage Punchi-rala. He died in December, 1951, leaving as his heirs Loku Menika,Ukku Amma, Appuhamy, Dingiri Banda, Mutu Menika, KiriBanda, Ran Banda the grandchild of Kiri Banda, and 2 childrenof a deceased son named Punchi Banda and Bandara Menika.Loku Menika died leaving as her heir Bisso Menika (5th defen-dant). The plaintiff in his original plaint claimed upon sharespurchased from Ran Banda, Punchi Banda, Bandara Menika andKiri Banda and acknowledged title, in others as heirs of . PunchiRala. He thus claimed a 3/8 share. On the 29tti July, 1963, he filedan amended plaint wherein he pleaded that Loku Menika andUkku Amma went out. in deega and thereby forfeited their rightsin.the paternal inheritance. He therefore claimed a 3/6 share. Thisallegation was denied by some of the defendants. At the inquiryan issue was raised on this point by counsel for the plaintiff andcounsel for the 5th defendant countered by issue 14 that theplaintiff was estopped from denying the rights of the 1st and 5thdefendants, by reason of. his- admissions in Case. .No., 1047Testamentary of the District Court of Kandy. At the. commence-ment of the trial the 1st, 2nd, 3rd, and 4th defendants admittedthat the 5th defendant was an heir of Punchirala. •
To answer the issue of estoppel (issue 14 (a) (b) (c) ) -the learnedJudge relied entirely on the evidentiary value of P12A whichis a certified copy of the proceedings held in the said Testamen-tary Case No. 1047 of the District Court of Kandy on 30th March,
. *' i..'•ft
1962. It ,is. recorded there that -all parties agreed that issues inregard to heirship be decided first and the accounts be lookedinto after the decision oniieirship. Appuhamy, the administratorofythe estate, then .gave evidence on being affirmed.-He. statedin the course of his evidence, that Loku Menika married in deegato one Mudiyanse and lived in Hewaheta which is 29 miles awayfrom the mulgedera and that she thereby forfeited her right tothe paternal inheritance. After some evidence was recorded the
SAMARA 1COON, C.T.—idahaviiharne v. Ukku Amma4.~'J
dispute regarding heirship was settled. The settlement is recordedthus : —
,“ At this stage Mr. Ferera for 2nd, 3rd and 4th respondents
agrees that Loku Menika was an heir cf the deceased andwas entitled to a share of the estate, and that Loku Menika’sinterests have devolved on the 9th respondent Biso Menika.Mr. Martin for the administratrix also accepts that position.Mr. Desinghe for the 5th respondent also agrees that LokuMenika was entitled to a share that has now devolved on BisoMenika, the 9th respondent. He also withdraws from hisposition that Ukku Amma the 2nd respondent, was marriedin deega and had forfeited her rights to the paternal estate,and now consents to Ukku Amma, being declared entitled toa share of the esta te of the deceased as an heir. The petitionerand t'he 2nd to 4th and the 9th respondents undertake to pleadthe order in this case in regard to heirship as res judicata inregard to the right of the 6th, 7th and 8th respondents whoclaim to be the heirs of the deceased, in any action to befiled by one Mahavitharne who claims to have purchasedthe interests of the 5th, 6th, 7th and 8th respondents. Maha-vitharne who is present in Court admits that Biso Menika,the 9th respondent, and Ukku Amma, the 2nd respondent areboth heirs of the deceased and are entitled to a share of theestate of the deceased. The petitioner and the 2nd to 4th andthe 9th respondents do not admit that the 6th, 7th, and 8threspondents are heirs of the deceased and they deny thatthese respondents are entitled to any share of the estate ofthe deceased.
It is further agreed between the parties that if in any actiona plea is raised by any party that either Ukku Amma orBiso Menika are not entitled to any share of the estate ofthe deceased it will be open to the petitioner and the 2nd to4th and 9th respondents to .plead the order in this case inregard the heirship as res judicata against such party.”
The learned Judge then made the following order : —
“ORDER
In view of the agreement between ffae parties, subject toany order that may be made by Court in an action to be
4D0SAMAllAKOON, C.J.—itaixtvitfiririir v. Ukku slmma
field by the Mahavitharne, I make Order that the petitionerand the 2nd to 5th respondents and the 9th respondent are theheirs'of the deceased’Punchirala. I fix the case for inquiry
into the petitioner’s accounts on 10.5.62.
Mahavitharne who is present in Court states that he willfile the proposed action before that date.
Sgd. S. Sivasupramaniam, D.J. >
3#3.62 ”
■ ,j•> O'
Mahavitharne is the plaintiff-appellant in this case. He seemsto have intervened in the case without being joined as a party,participated in the settlement, hnd agreed to the rights of LokuMenika and Ukku Amma. His intervention has ■ facilitated thesettlement. Obviously this case is the “ proposed action” referredt.o in the order. The petitioner 'in that case is the 2rid defendant-respondent in this case. The 2nd, 3rd and 4th respbndentfrin thetestamentary case are the 1st, 3rd and 4th defendants-fifcpon-dents respectively in this case. The 5th respondent in thht .caseis one Kiri Banda who is riot a party to thfs case but a Witnessin this case. The 9th respondent in the testamentary ease ls thechild of Loku Menika and is the 5th defendeuit-respondent in thiscase. It is therefore clear that the appellant and respondents inthis case were party to the settlement recorded in P12A. Plaintifffiled the original plaint in accordance with this agreement inP12A.
The trial proceeded on the amended plaint. After trial theJudge finds that there is no acceptable evidence that Loku Menikamarried in deega. In regard to Ukku Menika he finds that shemarried in deega and left the father’s house (P5) but after herhusband’s death in a railway accident she returned to the villageand re-acquired rights to the paternal inheritance. In respect ofboth he held that by reason of the agreement P12A the appellantwas estopped from denying that Loku Menika and Ukku Menikawere heirs, entitled to share in their father’s estate. Counsel forthe appellant argued that the appellant was not bound by the
J3I
SAMAKAKOON, U.J.- -Muhauitharne v. Ukku Amtna
agreement as 'ne was not a party to the testamentary case andthat he did not take part in the settlement. Although, he was not aparty he appeared in Court and the record shows that he tookpart in the settlement. His intervention and admissions seem tohave tiiggered the settlement. In his evidence in this case hestated that he attended Court because of this testamentary caseand 'ne also stated that he retained Counsel in that case. Theoriginal plaint filed by him in this case accords with the heirshipin the settlement P12A. It is only an year later that he amendedit denying the settlement P12A. It was therefore futile for himto deny that he was a party to the settlement. Counsel furtherargued that deeds in his favour, PI, P2 and P3 were anterior tothe settlement (P12A) and that admissions made by the transfe-ror after title had passed were not binding on the appellant. Thetwo admissions that estop him were made by him in open Courtand recorded by the Judge. They were his own admissions andnot only that of his transferors. Furthermore he acquiesced inthese admissions being made matters of record in the testamen-tary case. Appuhamy’s opposition to Loku Menika appears tohave been abandoned on account of this settlement. All partiesagreed that Mahavitarne’s (plaintiff-appellant’s) proposed actionshould conform to the settlement. Apparently his research donein 1963 and 1964 (after the settlement P12A and after the originalplaint was filed) disclosed Loku Menika’s marriage certificate(P7) and Ukku Menika’s marriage certificate (P5) both of whichdisclosed that the marriages were in deega. He then seems tohave resiled from his original agreement and decided to try hisfortune at gaining extra rights. He cannot now be allowed toblow hot and cold. One party at least, i.e. Appiihamy, altered hisposition for the purpose of the settlement (P12A). The othersestablished their rights. The Court itself was persuaded to makeorder based on the settlement. The appellant, no doubt, was nota party to the case, but yet assumed the role of a consenting partyto a settlement in a case. He cannot now be heard to state thathis undertaking given on record was not intended to be bindingon him or even to be acted upon. It. was acted upon in that itended a dispute and closed a chapter in it's history. He undertookand promised that this action would be in. conformity with the
432SAMARAKOON, C. J.—Mahavithame v XJkku Amma
settlement (P12A) and he cannot now “ be allowed in equity togo back on such a promise ” per Denning, J. in Central LondonProperty Trust Ltd. v. High Trees House Ltd, (1956) 1 A.E.R. 256.More so because the parties in toe testamentary case are foreverprecluded from resucitating their former claims. No- doubt suchan undertaking cannot form a cause of action but it certainly canb'd utilised to prevent a litigant going back on his word. I there-fore hold that issues 14 (a) (b) (c) were correctly answered inthe affirmative. In view of this conclusion no useful purpose will. be served in considering Counsel’s second line of argument. I
would therefore dismiss the appeal with costs.
.1 r * *.. •’. *’
Ismail, J.—I agree.,• • ,■ •
Ratwatte, J.—I agree.
Appeal dismissed.