030-NLR-NLR-V-46-HAMY-VEL-MULADENIYA-Appellant-and-SIYATU-Respondent.pdf
JAYBTILEKE J.—Hamy Vel Muladeniya and Siyatu.
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Present: Jayetileke J.
HAMY VEL MULADENIYA Appellant, and SIYATURespondent.
236—C. R. Teldeniya, 514.
Evidence—Person not heard or for seven years—Presumption of death—Inheritance to property—Evidence Ordinance, s. 108.
Where a person is presumed to be dead in accordance with theprovisions of section 108 of the Evidence Ordinance, his property may bedivided among hiB heirs.
A
PPEAL from a judgment of the Commissioner of Requests,Teldeniya.
L. A. Rajapakse, K.C. (with him S. R. Wijeyatilake and T. B.Dissanayake), for plaintiff, appellant.
C. E. S. Perera for defendant, appellant.
15th February, 1945, Jayetilleke J.—
This is an action for a declaration of title to an undivided half shareof a field called Kongahakumbura. It is common ground that the fieldbelonged originally to one Appu and that he died leaving six children,Punchirala alias Unnanse, Kiri Menika, Punchi Menika, Mudalihamy■and the 1st and 2nd defendants. Ukku Menika and Mudalihamy diedleaving as their heirs their brothers and sister. The contest is withregard to the shares of Kiri Menika and Punchirala alias Unnanse.The plaintiff alleges that Kiri Menika married in diga and therebyforfeited her rights to paternal inheritance, and that Punchirala leftthe village about 25 years ago and has not been heard of since. Thelearned Commissioner has held that Kiri Menika was not married indiga. That finding is supported by the evidence. With regard toPunchirala it seems to me that the finding of the learned Commissioneris wrong. He has overlooked the statement made by the 1st defendant■in an answer (P 6) filed by him in the year 1943 in action No. 433 of theCourt of Requests of Teldeniya that he has not heard of Punchirala formany years. That statement supports the evidence of the plaintiffand of Ukkurala that Punchirala left the village about 20 or 25 yearsago and has not been heard of since. Under section 108 of the EvidenceOrdinance when a person has not been heard of for seven years by those■who would naturally have heard of him if he had been alive the presump-tion of life ceases, and the burden is shifted to the person who deniesthe death. The burden of proving that Punchirala is alive wouldtherefore, be upon the 1st defendant. That burden has not in myopinion been discharged. Counsel for the 1st defendant contended thateven if Punchirala may, • upon the evidence, be presumed to be deadhis property cannot be divided among the heirs. I do not think this.contention is well-founded. In Willyams v. Scottish Widows’ Fund 1
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» 4T. L. R. 489.
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JAYETUjEKE J.—Hamy Vet Muladcniya anti Styafu.
where a person whose life was insured had not been heard of forseven years those who effected the insurance were held to be’ entitledto have it paid at the end of that period. Tn Doe v. Deal;in – wherethe lessor of the plaintiff, to prove his title in an action of ejectment,put in a settlement 130 years old, by which it appeared that the partythrough whom he claimed had four elder brothers, the jury were allowedto presume that those persons were dead.
The shares should, in my opinion, be allotted on the basis that l’unchi-rala’s rights have devolved on Punchi Meniku, the 1st defendant, andthe 2nd defendant. The plaintiff has purchased the interests of the 2nddefendant. I would set aside the judgment appealed from and directthat judgment be entered declaring the plaintiff entitled to a 1/3rdshare of the land. The parties will bear their own costs here and in thecourt below.
Appeal allowed.
(J828) 3 G. & P. 402