018-NLR-NLR-V-09-GUNERATNE-v.-APPUHAMI.pdf
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1900.
.April 12.
Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, Mr.Justice Middleton, and Mr. Justice Wood Benton.
GUNERATNE v. APPUHAMI.D. C., Kurunegala, 1,829.
Statute—Retrospectiveapplication—Statuteenactingprocedure—Pending
actions—Absence of administration—Matter of substance—Civil Procedure
Code, s. 647—Ordinance No. 12 of 1904, s. 2.
Retrospectiveeffect should npt be given to a statute dealing,
with matters other than procedure, unless it is made retrospectiveby express enactment or by necessary intendment.
The administration of an intestate estate is not a mere matter ofform or procedure, but is a matter of substance.
Judgment of the Privy. Council in Ponnamma v. Arumogam(8 N. L. R. 223) followed.
Section 2 of Ordinance No. 12 of 1904, which enacts that “ noaction tor ' the recovery of, or involving proof of title to, any pro-perty, movable or immovable, belonging to or included in theestate or effects of any person who died intestate before the com-mencement ofthis Ordinance,shall bedefeated,nor shall the title
to such property claimed through such person be deemed invalid,by reason only that letters of administration to the estate or effectsof such person have not issued. ”
Held,—Not to be applicable to actions pending when the Ordi-nance was passed.
Silva v. Swarts (1 Balasingham 61) over-ruled.
Judgment of the Privy Council in Colonial Sugar Refining Co. v.Irving (74 L. J. P. C. 77) followed.
MiddlbtonJ.—An appealtotheSupremeCourt is not a
re-hearing.
•fTl HE plaintiff instituted this action in March, 1900, against theJL defendant for a declaration of title to a land. The plain-tiff alleged that one Dingiri Banda was by virtue of a deed of gift No,>6,882, dated 3rd July, 1870, and hy maternal inheritance the owner of-the land in question, and that he by deed No. 2,806, dated the 14th'day of December, 1887, transferred the 6ame to the plaintiff. The.defendant objected that the plaintiff could not maintain the actionwithout taking out letters of administration to the estate of DingiriBanda’s mother Punchi Menika, who died about the year 1880. TheDistrict Judge (Mr. Baumgartner) over-ruled tbe objection and heldthat administration was unnecessary. In appeal the Supreme Court- -reversed the order of the District Judge and held that administrationwas necessary, unless the plaintiff could prove that Punchi Menika’s•estate was under Rs. 1,000 in value, and remanded the case to theDistrict Court for further hearing (1). Before the further hearing
a) (1903) 7 N. L. R. 299.
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in the Court below Ordinance No 12 of 1904 was passed whichenacts as follows:—
“ 2. There shall be added to section 647 of “ The Civil ProcedureCode, 1889," the following provisos, namely:
“ Provided always that no action for the recovery of, or involvingproof of title to, any property, movable or immovable, belonging toor included in the estate or effects of any person who died intestatebefore the commencement of this Ordinance, shall be defeated, norshall the title to such property claimed through such person be deem-ed invalid by reason only that, letters of administration to theestate or effects of such person have not issued.
“ Provided further that the transferor and transferee of such pro-perty as is mentioned in the foregoing proviso shall not be guilty ofthe offence created by this section."
After hearing evidence the District Judge (Mr. Hill) held thatPunchi Menika’s estate was over Rs. 1,000 in value, but thatadministration was rendered unnecessary by the operation ofOrdinance No. 12 of 1904. His judgment was as follows: —
“ Plaintiff brings this action for a declaration of title to the landAndiagollehena and for ejectment of defendant, who resisted histaking possession of the land, and for damages.
" The facts are briefly these. One Dingiri Banda obtained the-property in dispute by inheritance from his mother together withother lands. In 1887 he sold to the plaintiff and then denied thathe had sold and declared the deed to be a forgery. Plaintiff insti-tuted in this Court case 1,556 in 1897 and obtained judgment againstDingiri Banda and isued writ of possession, when the defendant, who-had in >1894 obtained from Dingiri Banda a usufructuary mortgageof the land and was in possession, resisted the execution of the writby the Fiscal.
“ The chief bulwark of defendant’s case is the technical objectionthat the estate of Punchi Menika from whom Dingiri Banda inheritedthis and other property was worth more than Bs. 1,000, and was notadministered,- and that therefore this action is not maintainable-(section 547 Cbjil Code). He also avers that the deed of sale in favourof plaintiff is a forgery, and that the judgment in D. C., 1,556 in hisfavour was obtained by fraud and collusion.
"This question of administration came up in all these connectedcases, and it was decided in appeal in one of them that administrationwas necessary unless the estate of Punchi Menika could be proved to -be under Bs. 1,000 in value and it had been agreed between the-parties that the order in that case should regulate the procedure invall the other cases.
1906.
April 12-
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1906.
.April 12.
“ Now the finding of the Supreme Court on the question of ad-ministration was prior to the passing of the Ordinance No. 12 of 1904,which lays down (section 2) that no action for the recovery of pro-perty included in the estate of any person who died intestate beforethe commencement of the Ordinance (Civil Code) shall be defeatedby reason only that letters of administration to the estate of suchperson have not been issued. It is argued that this Ordinance isnot retrospective and does not apply to cases pending at the dateof the passing of the Ordinance. It seems to me that the object ofthe Ordinance was to give immediate relief to suitors, and that theapplication of the Ordinance to pending cases is not to make itretrospective, a term which could be correctly applied only if itwere sought to make the Ordinance operate in cases already decided.That this is the view taken by the Supreme Court is clear from thedecision quoted in Balasingha-m, 61, and there is a Chilaw DistrictCourt case instituted before Ordinance No. 12 of 1904 was passed whichwent up in appeal on this very point of administration. Whenthe case came on before the Supreme Court for adjudication theOrdinance No. 12 of 1904 had in the meantime been passed, and theirLordships held that the passing of this Ordinance had obviated thenecessity for administration, and sent the case back for trial on theother issues.
“ As regards the value of Punchi Menika’s estate at the time of her■death, I do not think there can be any doubt it was worth morethan Rs. 1,000. It is true that that sum is given in the deed of giftas its value, but that must hava been a merely nominal valuation.The estate included a large number of jungle lands, at least two.gardens, and eight amunams of paddy fields. The fields alone atBs. 200 an amunam would have been worth Rs. 1,600. And a cocoa-nut garden with a house of about 200 bearing cocoanut trees musthave been worth at least Rs. 1,000.”
The defendant appealed.
H. Jayewardene {E. Jayewardene with him), for the defendant,appellant. The Ordinance No. 12 of 1904 is not retrospective, and•does not apply to actions that were pending when it *was passed. Nostatute other than one merely regulating procedure is retrospective,unless there are clear and unambiguous words making it so,Pettamberda88 v. Thackoorseydass (1); Gardner v. Lucas (2); Youngv. Adams (3). The question of administration is not a fisbal or aformal matter, but is a matter of substance going to the root of theaction and the title: Ponnamma v. Arumogam. (4). In Colonial 1
(1) 5 Moore't ’Indian App. 109.(3) (1898) A. C. 469.
.(2) L. B. 3 App. Cate 682.(4) (1905) 8 N. L. B. 223..
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Sugar Refining Oo. v. Iroing (1) it was held that a statute taking awaythe right oi appeal to the Privy Council was not retrospective anddid not apply to actions pending at the time;' similarly this statute,which gives a right of action where formerly no right of actionexisted, cannot be construed retrospectively. Silva v. Swaris (2), inwhich the Supreme Court applied the statute retrospectively,cannot be considered any longer as law in view of the judgmentof the Privy Council in Ponnamma v. Arumogam (3). Even if thestatute be retrospective, it cannot affect oases in which the questionof administration has already been decided. Such decision isbinding on both parties in all future stages of the suit, and cannot bere-opened even if the law is subsequently altered (Hukm Chand onRes judicata, 296).
H. J. C. Pereira (R. L. Pereira with him), for respondent.—Ordinance'No. 12 of 1904 is merely a declaratory statute, and assuch is retrospective, the Attorney-General v. Theobald (4). Even if itbe not a declaratory statute, it is one which merely regulates pro-cedure. The question of administration is one of procedure; itonly lays down who should bring an action to recover propertyinoluded in an intestate estate [Lascelles A.C.J.—Are we notbound by the ruling of the Privy Council that it is a matter of subs-tance and not one of form only?]. The Privy Council held that in thatparticular case it was a matter of substance, but it does not followthat it is so in every case. Section 547 of the Code was apparentlyconstrued as one merely regulating procedure, because it was appliedrestrospectively to the estates of persons who died before the passing ofthe Code. If 547 is restrospective, the proviso to that section enactedby Ordinance No. 12 of 1904 must also be retrospective. It has beendecided in England that a statute extending the time within which aprosecution should be initiated is retrospective, it being a mere matter-of procedure: Rex v. Chandra Dharma (5). In Povmamma v. Arumo-gam (6) the Privy Council has not over-ruled the judgment of theSupreme Court in Silva v. Swaris (7). The question is still an openone. The judgment of the Privy Council seems to be based on thelimited powers it possesses as a Court of Appeal. The powers of theSupreme Court are much wider.
H. Jayewardene, in reply.—Section 547 was not applied retros-pectively; it was held to. regulate only all future actions. Absence 1
(1)(1905) A. G. 369 ; 74 L. J. P. C. 77.(5) (1905) 2 K. B. 335.
– (2) 1 Balasinghom 61.(6) (1905) 8 N. L. R. 223.
(1905) 8 N. L. R. 223.(7) 1 Balasingham, 61.
(1890) 24 Q. B. D. 697.
1903.
April 12
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1906. of administration is fatal 1)608086 no title could pass without it:April 12. Fernando v. Fernando (1); Fernando v. Dochehi (2); Qunatilleke v.Silva (3).
Cut. adv. vult.
12th April, 1906. Lascelles A.C.J.—
This is an appeal from a ruling of the District Judge of Kurune-gala that section 2 of Ordinance No. 12 of 1904 applies to casespending at the time when the Ordinance came into force.
The effect, of this section was to introduce certain exceptions tothe general rule laid down by section 547 of the Civil Procedure Code.The last-named section enacted in effect that no action should bemaintainable for the recovery of property included in the estate ofany person dying testate or intestate when the amount of such estateexceeds in value one thousand rupees, unless grant of probite orletters of administration shall first have issued.
Section 2 of Ordinance No. 12 of 1904 added a proviso that noaction for the recovery of property belonging to or included in theestate or effects of any person who died intestate before the com-mencement of the Code should be defeated by reason only thatletters of administration have not issued.
In Silva v. Swaris (4) Layard C.J. and Monereiff J. decided thatthis Court had power to give the benefit of section 2 of OrdinanceNo. 12 of 1904 to the plaintiff in a case which was pending at thetime when the Ordinance was enacted.
In Ponnamma v. Arumogam (5) the decision of the Court wasdiscussed in the Privy Council, but their Lordships refrainedfrom considering whether the case was rightly decided.
Nothing is to be found in section 2' of. Ordinance No. 12 of 1904which shows any intention on the part of the Legislature that theenactment should be retrospective in the sense of affecting pendingsuits. It was however contended that the enactment was a matterof procedure only, and as such would extend to the present action.
In my opinion the question is concluded by -the judgment of thePrivy Council in the Colonial Sugar Refining Co., v. Irving (6).
By the Australian Commonwealth Judiciary Act, 1903, a right ofappeal to the King in Council which had previously existed wastaken away, and the question was whether or not this right stillsubsisted in a suit pending when the Act was passed.
Lord Macnaghten in delivering the judgment of the Board said:“ The only question is, Was the appeal to His Majesty in Council a
(1900) 4 N. L. R. 201.(4) 1 Balaiingham 61.
(1901) 5 N. U. R. 15.(5) (1905) 8 N. L. R. 228.
(190) 6 N. L. R. 27.(6) 74 L. J. P. C. 77.
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right vested in the appellant at the date of the passing of the Act orwas it a mere matter of procedure? It seems to their Lordships thatthe question does not admit of doubt. To deprive a suitor in apending action of an appeal to a superior tribunal which belonged tohim as of right is a very different thing from regulating procedure.In principle, their Lordships see no difference between abolishing anappeal altogether and transferring the appeal to a new tribunal. Ineither case there is an interference with existing rights contrary tothe well known general principle that statutes are not to be held toact retrospectively unless a clear intention to that effect is mani-fested.”
This reasoning is clearly applicable to the -present case. Thedefendant, before the passing of Ordinance No. 12 of 1904, by pleadingthat administration had not been taken to the estate of Punch!Menika, would have Been able to defeat the claim in the action.' Ifthe Ordinance is given a retrospective effect the defendant will bedeprived of this defence. It is clear to me that this is not merely amatter of procedure—it touches a right which was in existence whenthe Ordinance was enacted.
We have been pressed with the decision of The King v. ChandraDharma (1), but the decision of the Privy Council to which I havereferred is obviously more appropriate'to the present case.
It has also been contended that even if the Ordinance No. 12 of1904 is more than a matter of procedure and does' affect existingrights, it is nevertheless merely a declaratory Ordinance and as suchmay be construed retrospectively.
The Ordinance is certainly not declaratory in form—it does notprofess to explain or remove doubts.
I cannot find any ground for treating the Ordinance as declaratory;it adds a proviso to a section in an existing Ordinance which excepts -from the operation of that section a certain class of cases, namely,cases where the intestate died before the enactment of the principalOrdinance.
I would allow the appeal with costs and set aside the judgment ofthe District Court.
Middleton Ji—
This was an action forming one of a series from No. 1,828 toNo. 1,833 in the District Court of Kurunegala to vindicate title tocertain land. The defendant took the objection that the plaintiffwas not entitled to maintain these actions without obtaining lettersof administration to the estate of Punchi Menika, the mother ofDingiri Banda, through whom the plaintiff claimed.' It was conceded
(1) (1905). 2 K. B.. 335.
1906.
April ip.
Lasoeuihs ’A.C.J.
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1906. that Dingiri Banda’s right was only by inheritance, and not by deedApril12. Qf gjft a8 originally claimed.
Viddkbtom It was agreed by the parties that the judgment of the SupremeJ* Court in No. 1,828 should be considered binding in this and the otherconnected cases.
In action No. 1,828 this Court held that the District Judge waswrong in permitting the plaintiff to proceed in the action withouttaking out letters of administration to the estate of Punchi Menikaunless the plaintiff proved that Punchi Menika’s estate was worthless than Bs. 1,000.
After this judgment the plaintiff allowed his actions to remaindormant for some time, and apparently No. 1,828 was settled, butthe present action No. 1,829 was set down for trial. This action wascommenced on the 30th March, 1900.
The issues were settled in April, May, and October, 1902, and thecase came on for trial in October, 1905. In the meantime OrdinanceNo. 12 of 1904 had been passed.
The District Judge in his judgment found, amongst other thingswhich are not material to this appeal,, that Punchi Menika died about20 years ago intestate, that she left an estate over Bs. 1,000 in value,that administration was not taken out to the said estate, that ad-ministration was not necessary, and even if it were, that plaintiffsaction is not liable to be defeated by reason of such omission owingto the passing of Ordinance No. 12 of 1904, and gave judgment forthe plaintiff.
Against this judgment the defendant now appeals, and it wasargued on his behalf that the Ordinance No. 12 of 1904 was not re-trospective and does not apply to pending actions, and assumingthat the Ordinance were retrospective it was argued that a new lawcannot affect a decision already given.
For the respondent it was contended that administration was amatter of procedure, that no vested rights were here attacked, thatthe Ordinance No. 12 of 1904 is not substantive but declaratory of theexisting law, and many cases cited by learned counsel on bothsides in support of their respective contentions.
If it be the fact, as stated in the petition of appeal, tfcfat the partiesagreed that the judgment in No. 1,828 should be considered bindingin No. 1,829 and the connected cases, it seems to me that the plain-tiff would be concluded. IF Is not, however, clear, as far as I cansee, that any such agreement was entered into.
In the case of Ponnamma et alv. Arumogam et al. (1), the PrivyCouncil upheld the judgment of this Court, that section 547 of the 1
(1) (1905) 8 N. L. R. 223: 1 Balasingham 166.
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Civil Procedure Code applied to the estates of persons dying before 1906.the commencement of that date and also that the objection of want April 12.of administration was one of substance and not merely a technical Middlutokor fiscal objection.
In the course of the argument upon the hearing of that case, andin the judgment of the Privy Council, reference was made to thejudgment of this Court in Silva v. Swans (1) in which itwas held that the Supreme Court had power under section 40 ofthe Courts Ordinance to give a plaintiff the benefit of OrdinanceNo. 12 of 1904, which was passed during the pendency of this appeal.
Without deciding whether that case had been rightly or wronglydecided, their Lordships pretty clearly intimated their opinion thatthe rule of construction laid down in Maxwell, p. 308, 3rd ed., i.e.,that in general where the “ law is altered pending an action the rightsof the parties are decided according to the law as it existed when theaction was begun, unless the new statute shows a dear intention tovary such rights,” was applicable to that case.
The case of Quilter v. Mapleson (2), relied upon in Silva v. Swans,gives effect to the rule 2 of Order LVIII., which prescribes that” all appeals to the court of Appeal shall be by way of re-hearing,” andJessel M.B. says in his judgment on an appeal strictly so-calledsuch a judgment can only be given as ought to have been given atthe original hearing.
Now I take leave to think that the Supeme Court of Ceylon in itsappellate jurisdiction under section 40 of the Courts Ordinance “inhearing a case in appeal ” deals only with appeals “ strictly so-called,”and does not deal with them by way of re-hearing, but according tothe law existing at the time when the action was begun.
It is true the Court has power to receive and admit new evidenceadditional to or supplementary of the evidence already taken, andhas power to pass such judgment as it shall think fit, but the lattermust, I think be. according to the law existing at the date, of action,and the former, I take it, must be governed by the same law; at leastthere is nothing I can find in this or other, sections to warrant theassumption that an appeal to the Supreme Court is by way of re-hearing.^
There is nothing in Ordinance No. 12 of 1904 making it expresslyretrospective, and as I do not think that by necessary intendment itcan be held to be so; the case of the Colonial Sugar Refining Co. v.
Irving (3) is very strong in favour of the appellant’s contention.
It is argued that the Ordinance is declaratory of the existing law,and therefore retrospective, but the judgment of the Privy Council
(1) 1 Balasingham 61.(2) 9 Q. B. D. 672.(3) 74 L. J. P. C. 77.
iJ. N. A99412(8/50)
1906.
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in Ponnamma v. Arumogam (1) seems to negative this contention byholding that the estates of persons dying before " The Civil ProcedureCode, 1889,” are subject to the provisions of section 547.
That it is not a matter of procedure, but one of substance may begathered from the Privy Council judgment in the same case.
The other cases quoted by the learned counsel for the respondentappear to turn on special enactments.
In my opinion, therefore, the law to be applied to this case is the lawthat was in existence at the date of the commencement of the action,and which is to be found in section 547 of ” The Civil Procedure Code,1889,” and I think that this appeal should be allowed with costs andthe judgment of the District Court set aside.
Wood Benton J.—I agree. I do not wish to add anything.