KARUNADASA RAJAPAKSA v. PODIAPPUHAMY

012-SLLR-SLLR-1989-V-1-KARUNADASA-RAJAPAKSA-v.-PODIAPPUHAMY.pdf


SCScience House (Ceylon) Limited v. I. P. C. A. Laboratories
Private Limited (Tambiah. J.) -,173
. KARUNADASA RAJAPAKSA
• '.. VC-”
PODIAPPUHAMY
.• ‘ : v ' '.'L' ~ *
COURT OF APPEAL ..
P: R. P. PERERA. J. AND PALAKIDNAR/J.
A. NO: 393/79 (F)'
C. RATNAPURA NO: 1648/1.
OCTOBER 20. 21. 26’. 1988. '
Vindicatory-suit — Gemming'rights'— Interim injunction — Absence bf title to'land — Adoption in. Kandyan Law —. Succession, to adoptive parents' property— Guardian's right to deal with minor's property — Ratification by minor afterattaining majority.
One Mudalihamy to whom both plaintiff and defendant-traced their title' left onechild JOipgiri.Mahattaya and .two. adopted, (as ajleged) .children lamahamy andRambandahamy who-were children of Mudaiihamy's'wife by another marriage.After -'Mudalihamy. died Dingiri; Mahattaya! Lamahamy and Rambandahamy■divided –the-ISrtds3 of Mudalihamy equally among- themselves 'By Ja> deed.' AsDingiri" Mahattaya was'.a minor-his'mother Lamaethana (who -was also themother-oflarriahamy.and Ramban’dahamy) signed the deed on his:behalf… -I -.
.HeldNo oral declaration whether public .or not. whether made' on a formaloccasion or otherwise is necessary for adoption under.jkandyan. Law. AII that isneeded is reliable, clear and unmistakable evidence in whatever form- of thedeceased’s intention to.adopt the child as. his,heir. Oh the evidence. Lamahamyand,. Rarnbandahamy were adopted -children, of Mudalihamy. and, entitled to- succeed to his interest’s
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Lamaetana did not have the capacity as guardian to deal with the propertyof her minor son Dingiri Mahattaya. The alienation is prima facie void but it canbe ratified either expressly or impliedly, as was done in the case, by the minor onhis attaining majority.
As the plaintiff was rightly held by the' Oistrict Judge to hold no property orgemming rights on the land he was not entitled to an injunction and his actionhad to be dismissed.
Cases Referred to
Dayanganie v. Somawathie — (1956) 58 NLR 337
(Note by Editor — Tikiri Banda v. Loku Banda (1905) 2 2 Bal. R. 144and Tikiri Kumarihamy v. Punchi Banda — (1901) 2 Browne's Reports299 were not followed in Dayanganie v. Somawathie)
Perera v. Tissera — 35 NLR 264
Fernando v. Fernando — 19 NLR 193. 194. 195.-APPEAL from Judgment of District Court of Ratnapura.
R. K. W. Goonesekere for Plaintiff-Appellant.
C. Seneviratne P. C. with Lakshman Perera for Defendant-Respondent.
Cur. adv. vult.
January 31. 1989P. R. 9. PERERA, J.
The plaintiff filed the. present action seeking a declaration oftitle- to. !/1 2 + 11/420 shares of the gemming rights in.the landcalled,Gpda Ovita. more.fully described in the schedule to thePlaint. It was the-plaintiffs case. that.-one Mallika-ArachilageMudalihamy who was entitled to a 1/4 th share of this land leftas his sole heir one Dingiri Mahattaya — who on deed No.15121 of 1929. (P3). conveyed the gemming rights in 1.1/60•shares to one Loku Appuhamy — from vyhom the plaintiff as heirsucceeded to 11/420 shares:- .:
>Th^- pla'intifif also averred . -that one GanegamaethigeMehiketharia1 who’was entitled to 1 /12 share'of this land bydeed No. 30368 of 1899 CP5’) conveyed her'rights to
C'AKarunadasa Rajapaksa v. PodiappuhamyfP. R. P. Perera. J.)175.
Ganegamaethige .Punchiappuhamy alias Appuhamy who washimself entitled' to a. 1/24th share. Appuhamy. by I deedNo. 30369 of .1899 ('P6.'), conveyed the gemming rights in-,a
/12th share to one Thomas Perera. on whose death, his widowJustina Hamy alias Punghimenike; .and the children — Anselm.Perera and Peduru Perera acquired those rights. Anselm Pereradied intestate and issueless and upon the said-Justinahamy'sdeath, the only surviving son Peduru Perera, became entitled tothe entirety of Thomas Perera's interests. Thereafter on the deathof Peduru-Perera. his daughters Cicilin Nona and Podimenikaacquired the said-1/12th share, and both of them by deed No.51637. (P12) conveyed such T/12t-h- share to the plaintiff. Theplaintiff accordingly became entitled to the gemming rights in
/420 shares + 1/12 shares.
•'. • '' ^' » ‘i • •
. It was the plaintiff's complaint that'the defendant was. carryingon gemming operations o;n this.danchin defiance, of the plaintiff’srights and thus sought anr interim, injunction, restraining thedefendant from carrying on gemming operations on the said
land-..
the -defendant filed- answer stating that MallikarachilageMudalihamy was entitled to 1 /5th sfiare-of this land, and that bisinterests devolved on three, children, one of whom was DingiriMah.attaya, — referred torn the Plaint, who became entitled onlyto a-1/15th share of the land in suit and that-this shafe had-b.eendesalt,-'with in .1 91,Or.,on deed No .1951. (Y-14"), .prior to-thepufche.se of 1 1/6Q share of .the mineral rights by the plaintiff'sfather Lpku.Appubamy.
' It was.also.’the defendant's ease that .Ganagamaethige .PunqhkAppuhamy alias "Apjpuhamy had'prior,.to the transfer-of, hisgemnjing rights, to ifie^plaintiff’s predec.essoh on deed 'P 6'.already dealt-with'that, share..fon deed. No. 90J0 of–18th July1893? (V.;3i.),,~ and that <therefore the pla.intiff.^derived ; no /titlewhatsoever. The defendant thus so.ughha dismissal^ this action -as the. plaintiff had no title to the land, which was the subjectmatter of this-suit.
/Aeco/difig to the.defendant whatever title,,some of the,alleged-predecessors of the plaintiff had, such title was exhausted as
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they had disposed of the same previously. The defendanttherefore, contended that the plaintiff does not have the titlewhich would entitle him to succeed in obtaining any of the reliefshe. has sought in the present action. The defendant also in hisanswer, set out a devolution of title, which if correct, wouldnecessarily-defeat the claim of the plaintiff.
• After several dates of trial, the learned Trial Judge, reserved hisorder, >and delivered judgment on 19.12.'79. dismissing theplaintiff's action with costs and directed that decree be enteredaccordingly.'It. is against this judgment and decree that theplaintiff has.filed the present appeal..
The first matter that arises for determination in this case iswhether Mallika Arachilage Mudalihamy's share devolved on hisonly child Dingiri Mahattaya,.■'as. claimed by the plaintiff or, onDingiri Mahattaya. Lamahamy and Rambandahamy. as alleged bythe defendant. Lamahamy and Rambandahamy are admittedlythe’children of-Lamaethana’ by another bed. while Dingiri—Mahattaya was the only child of Mudalihamy and Lamaethana. Itis common ground that Mudalihamy was married to Lamaethana.Who at the time of marriage had'two children Lamahamy andRambandahamy'by an earlier husband. '.
< According . to the plaintiff therefore on the- death of’Mudalihamy; the 'entirety of his interests devolved solely onDingiri Mahattaya —! his1 own child. The’defendant' allegedhowever'that aftehModalihamy's death his interests devolved onDingiri Mahattaya his' child and his two adopted childrenLamahamy and Rambandahamy. It is. in evidence that the widowLamaethana and the aforesaid'three childreh.Dingiri Mahattaya.
• Lamahamy and Rambandahamy entered ’ into a' deed ofsettlerrient 'V i.-3’, whereby the said -children agreed^to divide thelands Of Mudalihamy equally, among Jhethree of. them. At the'… time ^T-3’ was executed. pjngiri'Mahattaya was a minor, and' hismother5Lam'aethand signed thWdeed ojn his behalf!‘ . •
• It-Was the submission of Counsel for the plaintiff-appellant thatdeed :'.V13; was clearly a,dee.d executed against the interests ofthe^minor, Dingiri "Mahattaya. ,Henc'e.'J!his mother Lamaethaqa
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CAKarunadasa Rajapaksa v. Podiappuhamy fP. R P. Perera. J.)
who was also the mother of the other.two children Lamahamyand Rambandahamy. could not by signing this deed give validity,or effect to 'V .13'. Counsel contended strongly therefore, thatV13' cannot possibly be.accepted as a deed conferring rights onLamahamy and Rambandahamy.
Counsel submitted further, that..there was no material tosupport an adoption of Lamahamy and Rambandahamy. In theabsence of evidence of such adoption Counsel contended, thatthe entirety of Mudalihamy s interest necessarily devolved oh hisson. Dingiri Mahattaya.’ Counsel urged, that under Kandyan1 Law,,an adopted child does not become entitled to succeed io< theproperty of the adoptive parent, unless there has been a publicdeclaration by the adoptive.pareht on a formal, occasion that theparticular child was adopted for the'purpose of inheriting hisestate: It was Counsel's submission that'there is no evidencewhatsoever in this, case to show,, that there waS such a publicdeclaration, and in the absence.of such evidence, there couldnot be an adoption valid in law.
It would be relevant in this context to consider the contents ofdocuments V13’.This document reveals the following importantfacts.
that ’ Mallika Araehilage- Mudalihanniy died on01.02.1897;
that heirs of Mudalihamy were Lamahamy,Rambandahamy and Dingiri Mahattaya.
Lamaethana the mother Of'Dingiri Mahattaya. whowas a minor at that stage, signed VI3' on his behalf.
• (d) there were disputes'among the heirs, as Mudalihamyhad'died: intestate, and this deed 'VI3!. was written as asettlement of these disputes; whereby the parties agreedto .share and possess the inheritance of Mudalihamyequally.' ''*
(e) . Mudalihamy ewned 1 /5th .share, of Goda Ovita,' which. is the (and in suit;
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(f) one of the witnesses to (V13'). was MallikaarachilageAppuhamy of Karanagoda — a brother of Mudalihamy.according to the plaintiff, and was. entitled to 1/5thshare of-this land according to the devolution set out bythe defendant.
This deed of settlement therefore bears out that Dingiri'Mahattayas mother Lamaethana. ' accepted the rights ofLamahamy and Ranbandahamy — the adopted children ofMudalihamy on behalf of Dingiri Mahattaya. and thatMallikarachilage Appuhamy — a brother of Mudalihamy. has alsoaccepted this position by signing this document as a witness.According, to V-1 3 it is also clear that this document is only aformal recording of a settlement of disputes among the heirs ofMudalihamy on whom.the property had already devolved byoperation of law. It is also significant that while Mudalihamy diedon Q-1 ..02.1 897. the deed 'V13' was executed on the 10 Marchof the sarrie year. ■
)■ It was the submission of Counsel for the defendant respondenthowever thatuthe. validity of the adoption of Lamahamy andRambandahamy by Mudalihamy was not in issue at the trial, andstated that no issue has been raised on this particular matter inthe District Court. In any event, having regard to the totality ofthe evidence; in this case? I am unable to' agree with thecontention of Counsel for the appellant that under Kandyan Law.an adopted child does not become entitled to succeed to theproperty of the adoptive parent unless there has been a publicdeclaration by the adoptive parent on a formal occasion that theparticular,, child was adopted for the purpose of inheriting hisestate. . I find suport for this view in the judgment ofBasnayake G. J. in Dayanganie vs. Somawathie (1). where it hasbeen' held .that no oral declaration whether public or not. or on aformal occasion or otherwise, is necessary, and all that is neededis<reliable. clear and unmistakable evidence in whatever form ofthe deceased's intention to adopt the child as his heir. Thisargument of Counsel therefore in my view must fail, I thereforehold that both Lamahamy and Rambandahamy were entitled tosucceed to the interests "of Mudalihamy on the evidence in thiscase.
CA
Karunadasa Rajapaksa v. Podiappuhamy (P. R. P. Perera, J.)
179
Yet another matter that was urged by Counsel for the appellantwas that in any event Lamaethana' did' not have the capacity as. guardian to deal, with the property of Dihgiri Mahattaya who wasa minor at that time. Counsel, for the defendant respondenthowever contended that this was not a relevant matter, and didnot arise for consideration in this case, as on the'evidence it wasabundantly clear, that Dingiri Mahattaya had in no uncertainterms ratified the document- V 13". after he attained majority.
On this matter, it was Mr. R..K. W. Goonesekena's contention'that where a contract relating to immovable property is made bya minor without the sanction of a competent Court with .theassistance of a guardian, or by a1 guardian on behalf- of a minorwithout such sanction the contract itself should be'treated, asbeing :prima facie void as against such minor. Counsel urged thatsuch a contract which .is. void could not -be- validated byratification after majority unlike a contract which was merelyvoidable. •
Professor T: Nadarajah.- however, in a-very .comprehensive-article entitled "THE CON-TRACTS OF MINORS IN THE MODERNROMAN-DUTCH LAW" (University, of Ceylon -Review. Vol. .11.page 65. at page 95). has expressed a contrary view which, isreproduced below:• v.•'
"Where a' contract entered into by a minor with or withoutthe assistance of a guardian or by a guardian on behalf of aminor has been executed .by the alienation of immovableproperty of the minor without the sanction of a Court, thealienation, is prima facie void, as against the minor, and theguardian before majority dr the'1 minor during or after aminority is entitled . to; vindicate the: property. But thealienation is.not strictly devoid of legal effect in as much asit is not Open to the alienee to assert that the alienation was.invalid; as the alienation is capable of being made binding. on. the minor by being ratified either expressly or impliedlyby him on his attaining majority, and as the alienation willbe held to be valid even, as against .the minor where thealienee has been 'misled, "by the minor expressly orimpliedly .representing himself to be of full age."
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{1989] 1 Sri L. R.
"Although where an alienation is prima facie void, as against aminor there is strictly no need to apply to. a Court for adeclaration that the alienation is void, yet since the minor may beheld to have impliedly ratified, the prima facie void alienation byallowing a certain period of time to elapse after majority withoutasserting his rights, it is safer in all cases, whether the alienationis prima facie void or prima facie valid, to make an application toCourt for relief from the consequences of the alienation."
This statement of the law by Professor Madarajah. is in my viewvery, much in accord with the law on this matter, as it presentlystands. This. view, has also been adopted by the Supreme Courtin Perera vs. Tissera (2) and Fernando vs. Fernando (3). I amtherefore of the opinion that there is no merit in the submissionof learned Counsel that a minor cannot ratify a contract which isprima facie void after he attains majority:
Dingiri Mahattaya therefore if he did not agree with thesettlement set out in deed V13' could well have rejected it afterhe attained majority.' On the evidence adduced in this case, it is'clear.that he had not sought to do so; but on the contrary, hasindeed ratified it by his subsequent conduct. In fact. DingiriMahattaya has conveyed a 1/3rd of 1 /5th—i.e. 1/1 5th share in1 9i 0 on deed V14 .Further, two very old documents 'V1 5' andV 16'. tend to support the contention that Dingiri Mahattayaaccepted and. ratified the agreement IV T3'' by his deed 'V 1 4'.
The learned District Judge having-considered the evidence inthis case has cbme to a finding that Dingiri Mahattaya was onlyentitled to 1/15 share of this land and that he conveyed all. hisinterests by 'V14' in .1910. In the.result. Dingiri Mahattaya hadno-interest which could. have been conveyed to the plaintiff'sfather Loku Appuhamy on 'P3' in 1929. The learned DistrictJudge.has therefore in my view rightly-held that the plaintiff'sclaim to a 11 /420 shares by paternal inheritance must fail. Wesee rib reason to disturb this finding of the. learned Trial Judge.
..The. next question that arises for- determination relates to theV2..’share .the'plaintiff claims from. Ganegamaethige Punchi.Appuhamy alias Appuhamy.:;According. to.the pedigree relied on
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CAKarunadasa Rajapaksa v. Podiappuhamy (P. R. P. Perera. J.j
by both parties, it is common ground that the – Mallikarachigepeople, of whom Mudalihamy. (Dingin' Mahattaya.'s father) wasone, were entitled to one half share of the land in suit. Thepresent claim is therefore made from and out of the balance halfshare of the land not owned by the Mallikarachige people.
In respect of this half share the defendants have filed apedigree showing a 1/12th share to G. A. Appuhamy aliasPunchi Appuhamy. 1/6th share to Kalue.thana. a 1/12th shareto G. A. Appuhamy. 1 /12th share to G. Vasthuhamy. and 1/12thshare to one Gunawardena.The plaintiff has not challenged theshares given by the defendant to Kaluethana. Vasthuhamy andGunawardena. According to the plaintiff the. deed marked 'V 31'reveals that the vendor On this deed was oneGanegamethiralalage Appuhamy Vel Vidane, while the vendor on'V37' was Ganegamaeithige -Punchiappuhamy^ It was theplaintiffs case that the vendor on V3T' and V37' are one.andthe same person. Oh this aspect of the matter Counsel for theplaintiff appellant, submitted;.that- according to the deed 'P5', G.G. Punchiappuhamy (the vendor on 'V31' of 18.07.1892) wasentitled to a 1/24th share of this land while the deed 'V37'(executed in September 1901). shows that he transferred a1/1 2.th share of this land thus establishing that in 1901 ('V37')..Punchiappuhamy was entitled to a' 1/12th share.
Further, according ,to 'P5' (deed executed in 1899)Puhchiappuhamy was entitled to 1/24th share of this land byright of purchase, so. that in 1899 at the time 'P6‘ was executed,the said Punchiappuhamy was the owner of 1/12th + 1/24thshares, and that he therefore had the right-to convey gemmingrights in respect of 1/1 2th share on P6'.
Counsel for the defendant respondent however contended that •the grantors on deed 'V3V and 'V37' are different persons and.not the same person…
The learned Trial Judge, having examined the documents' 'P6','V3T arid 'V37' has come to a firm finding that this contention ofthe defendant was indeed Correct. The District Judgg, for verycogent reasons given in his judgment has held, that the grantor in.
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'P6' who has described himself as Karangoda GanegamaethigePunchiappuhamy residing at Getangama was a different personfrom the grantors on both V3 V and V37'.
Counsel for the appellant strenuously urged that the grantoron 'P6' and the grantor on V37 were one and the same person,and that 'P6' being a deed executed in March 1899. should takeprecedence over the deed V37' executed in the year 1901. Thelearned Trial Judge has however in our view rightly held that the-grantor in ‘P6’ is altogether a different person from the grantoron V31-. and V37'. and that the plaintiff has failed to establishtitle to any gemming rights in this land, that the plaintiff's actionhad therefore to fail. He has accordingly dismissed the plaintiffsaction with costs..
We see no sufficient reason to interfere with his finding. Wetherefore affirm the judgment of the learned District Judge anddismiss the appeal, with costs fixed at Rs. 1050/-
PALAKIDNAR. J. — I agreeAppeal dismissed