MAHAWEWA AND ANOTHER v. HEMACHANDRA MAHAWEWA

021-SLLR-SLLR-2010-V-1-MAHAWEWA-AND-ANOTHER-v.-HEMACHANDRA-MAHAWEWA.pdf


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MAHAWEWA AND ANOTHER V.HEMACHANDRA MAHAWEWASUPREME COURTSHIRANEE TILAKAWARDANE, J.,MARSOOF, P.C. J., ANDSRIPAVAN, J.
S.C. APPEAL NO. 64/2008S.C. (H.C.) C.A.L.A. NO. 25/2008WP/HCCA/COL/131/2007 (LA)
D.C. MOUNT LAVINIA NO. 349/98/SPLNOVEMBER 23rd, 2009DECEMBER 18™, 2009
Civil Procedure Code – Section 392 – On the death of a party action doesnot abate if right to sue survives – Section 398(1) – Substitution of legalrepresentative in place of deceased defendant — Personalis moritur cumpersona – Litis Contestatio?
The Supreme Court granted Special Leave to Appeal on the question oflaw, whether an action to revoke a deed of gift based on gross ingrati-tude would survive, upon the death of the original Defendant (donee)before the conclusion of the case.
In the instant case, at the time of the original Defendant’s death, thetrial had commenced and the Respondent had completed his evidenceand closed his case. The deceased Defendant had also commenced hiscase but died prior to the conclusion of the cross examination of hiscase. Unmistakably, the stage of Litis Contestatio had been reached atthe time Defendant’s death.
Held
The maxim personalis moritur cum persona cannot be uniformlyapplied to each and every action which qualifies as personal innature and whether or not the maxim applies must be determinedon the facts and circumstances of the case.
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Mahawewa and Another v. Hemachandm Mahauiewa
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The Plaintiff-Respondent-Respondent-Respondent should be permit-ted to continue the action for revocation of gift against the Defen-dant-Petitioner-Petitioner-Petitioners after due substitution.
Held further:
Per Shiranee Thilakawardane, J.,
“It was also incumbent upon the Trial Court to rule on the ques-tion of patent jurisdiction that was raised, instead of informingparties that it would be decided later when it was taken up at thehearing.”
Cases referred to:
Jayasuriya v. Samaranayake – 1982 (2) Sri L.R. 460
Deeranada Them v. Ratnasara There – 60 N.L.R. 7
A.G. v. Satarasinghe- 2002 (2) Sri L.R. 113
Stella Perera and others v. Margret Silva – 2002 (1) Sri L.R. 169
Muheeth v. Nadarajapillai- 19 N.L.R. 461
Vangadasalam and another v. Karuppaiah and another-79 (2) 150(SC)
APPEAL from the decision of the Provincial High Court of Civil Appeal,Western Province
Dr. Jayatissa de Costa with Amitha Rajapakse for Defendant-Petitioner-Petitioner-Petitioners
Ranjan Suwandaratne with Anil Rajakaruna for the Plaintiff-Respondent-Respondent-Respondent.
Cur. adv. milt.
May 6th 2010
SHIRANEE TILAKAWARDANE, J.An application for Special Leave was preferred bythe Defendant-Petitioner-Petitioners-Petitioners (hereinafterreferred to as the Petitioners) against the decision of theProvincial High Court of Civil Appeal of the Western Province
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dated 13.02.2008. This Court granted Special Leave to Appealon 25.07.2008 on the question oflaw set out in paragraph 12 (c)of the Petition, namely, whether the action to revoke a deedof gift based on gross ingratitude would survive, upon thedeath of the original defendant (donee) before the conclusionof the case.
The Plaintiff-Respondent-Respondent-Respondent (here-inafter referred to as the Respondent) instituted actionbearing No. 349/98/SPL, in the District Court of MountLavinia, against the deceased Defendant praying, inter alia,that the Deed of Gift bearing No. 1909 dated 07.08.1992, madeby the Respondent to the deceased Defendant be canceled, onthe ground of alleged gross ingratitude by the Defendant. Thedeceased Defendant by his answer dated 08.03.1999, deniedthis claim, and moved for the dismissal of the Respondent’saction.
At the tried, upon conclusion of the Respondent’s case,the deceased Defendant commenced his case. However, theDefendant died on 31.01.2005, prior to the conclusion of thecross examination of his case. Thereafter, the Respondentsought to substitute the Petitioners-who are the widow andson of the deceased Defendant- by an application in terms ofSection 398 of the Civil Procedure Code.
The Petitioners objected to the application for substitutionon the ground that the cause of action for the case, whichwas based on gross ingratitude of the deceased Defendant,ceased to operate upon the death of the original Defendant,Having heard both parties, the learned Judge by order dated
allowed the application for substitution, leavingthe question of maintainability of the action upon the death
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of the original Defendant, to be taken up in the course of thetrial.
Subsequently, at trial the Petitioner raised objectionsto the maintainability of the action following the death ofthe original Defendant. By his decision dated 17.08.2007the District Judge of Mount Lavinia rejected the objectionsraised by the Petitioners. Aggrieved by this decision, thePetitioners appealed to the Provincial High Court of CivilAppeal of the Western Province. The High Court dismissedthe appeal by its judgment dated 13.02.2008 from which thePetitioner preferred the present application to this Court.
The only question of law to be determined in this case iswhether, in an action to revoke a deed of gift based on grossingratitude, the cause of action survives upon the death ofthe original Defendant, against the Petitioners.
In terms of Section 398 (1) (a) of the Civil Procedure Code,in the event of the death of a sole Defendant, an applicationcan be made for substitution of the legal representatives ofthe deceased Defendant, on the condition that the right to suesurvives.
Moreover section 392 of the Civil Procedure Codeprovides that:
“The death of a Plaintiff or Defendant shall not causethe action to abate if the right to sue on the cause of actionsurvives.* The practical effect of Section 392 is that thedeath of either the Plaintiff or the Defendant would cause theaction to abate if the cause of action does not survive.
The law on donation and the revocation of gifts isSri Lanka is governed by Roman Dutch Law, under which
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a gift once donated, can be revoked on ground of grossingratitude by the donee to the donor. The donor mayinitiate court proceedings to cancel the gift so donated.However, given that an action for revocation of gift based oningratitude is of a personal nature, the issue remains as towhether the cause of action in such a case would survive thedeath of either party to the case.
Atukorale J. in Jayasuriya v. Samaranayakdx answeredthis question in the negative in so far as the Plaintiffdonor was concerned. In this case, the original Plaintiffinstituted action against the Respondent to revoke thedeed of Gift executed by him in her favour on the groundof gross ingratitude towards him. However, the Plaintiffdied prior to summons being issued on the case. Thereafterthe Appellant, his widow, sought to be substituted in place ofthe original Plaintiff as his legal representative under Section395 of the Civil Procedure Code. In this instance, Atukorale J.held that the right to claim revocation on grounds of grossingratitude will not pass to the estate of the donor.
In light of Jayasuriya v. Samaranayake it is clear that inso far as the Plaintiff is concerned the cause of action wouldcease to exist, if the Plaintiff dies prior to the conclusion ofthe case. This principle is embodied in the maxim personalismoritur cum persona.
Counsel for the Petitioner has sought to rely on theprinciple as it was considered in Deeranada Thero v.Ratnasara ThercPK In this case, the Plaintiff-Respondentinstituted action against the Defendant, Piyaratane Thero,alleging that the Defendant was unlawfully disputing hisright to the incumbency of the temple, was disobedient anddisrespectful towards the Plaintiff and obstructed him in
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the lawful exercise of his rights an incumbent. The Plain-tiff prayed that he be declared the incumbent and also thatthe defendant and his agents be ejected from the temple.The original Defendant having died before the trial could beresumed, the Plaintiff sought to substitute his successor forthe purpose of prosecution. While the District Judge allowedthe substitution and ejected the Defendant, the Appeal Courtheld that the original action was personal’ in nature andinvalidated the substitution. The Court found that since thePlaintiff was alleging disobedience and disrespect to him bythe conduct of the Defendant the question of ejecting theDefendant was merely incidental to the action.
The decision in Deeranada Thero v. Ratnasara Them(supra) does not by itself support the contention that the causeof action in the instant case ceases to exist with the deathof the original Defendant based on the ground that action ispersonal in nature. The Deeranada Thero (supra) Case isdistinguishable on facts in issue, in that unlike in theinstant case, the Deeranada Thero Case did not involvethe revocation of a gift based on ingratitude. Rather, inDeeranada Thero the case turned mainly on the allegationof disobedience and disrespect leveled against the deceasedDefendant. The issue of property and ejectment aspronounced in the judgment itself was only a collateralconcern. Moreover, the action did not involve any issuerelating to the inheritance of property. The instant casefocuses clearly on the property gifted by the Plaintiff and theinheritance rights of the heirs of the deceased Defendant.The intention of the donor to revoke the gift of property ongrounds of ingratitude remains of parallel importance.
Cases of slander and libel have also been cited by thePetitioner in order to highlight the relevancy of the maxim
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personalis moritur cum persona in relation to the instant case.Undoubtedly, these cases fall into the category of personalaction and therefore the cause of action would not survivewith the death of either the plaintiff or defendant in such acase (Vide, AG v. Satarasinghe,3>. However, the maxim cannotbe uniformly applied to each and every action which qualifiesas personal in nature and whether or not the maxim appliesmust be determined on the fact and circumstances of theinstant case.
The Counsel for the Petitioner also cited Perezius onDonations (E. B. Wickramanayake translation – 1933 at page35 and 36) to the effect that in a case where the Donor has beensilent and made no complaint of the ingratitude exhibited,then his heirs and successors are not entitled after his deathto sue because this is a personal action and “is prosecutedmore for the sake of retribution, punishment than money;and the inquiry seems to have abated by negligence sincethe man, while alive, made no complaint about and injuryalready committed. Wherefore it follows that just as the heiris not entitled to an action for ingratitude so it is not grantedagainst the heir of the donee.”
If the purpose of an action for the revocation of gifts basedon ingratitude is to seek retribution and punishment, thenone must consider whether such purpose would be servedby denying continuation of action in cases where the Plaintiffhas complained about the alleged ingratitude. In the instantcase, if the cause of action is said to have died with the deathof the original Defendant, the Petitioners will be enriched tothe detriment of the Respondent. The donated property runsparallel to the personal nature of this action due to the factthat such property forms part of the deceased Defendant’s
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estate the benefit of which accrues to his heirs. In otherwords, the petitioners would be unjustly enriched in thecircumstances where retaining such property is not supportedby adequate cause. Therefore in order to prevent unjustenrichment it is proper to substitute the Petitioners in placeof the deceased Defendant in order to continue the actioninstituted by the Respondent for the revocation of the gift.
In support of this conclusion, the Respondent alsosubmits that at the time of death of the deceased Defendant,the stage of litis contestatio had been reached and therefore,
■ the Petitioners cannot argue against the continuation of thecase by the Respondent following the death of the originalDefendant. The Respondent has cited several authorities insupport of this submission.
In Stella Perera and others v. Margret Silvam the firstDefendant died pending the appeal in the Court of Appeal.However by that time he had a judgment in his favor inrespect of his claim to have the donation to his wife revoked.Amerasinghe J. held that the stage of Litis Contestio havingbeen reached, the first defendant’s action did not die withhim and therefore, the maxim actio personalis moritur cumpersona did not apply. Wood Renton J in Muheeth v.NadarajapillaiS| observed that ‘An action become litigious,if it were in rem, as soon as the summons containingthe cause of action was served on the defendants; if itwas in personam on litis contestio, which appears tosynchronize with the joinder of issues or the close of theproceedings”. Again in Vangadasalam and another v.Karuppaiah and another<6), Samarawickrama J. observed thata personal action dies with the plaintiff unless the stage ofLitis Contestio has been reached.
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In the instant case, at the time of the original Defendant’sdeath the trial had commenced and the Respondent hadcompleted his evidence and closed the case for the Plaintiff,and even the deceased Defendant had commenced his case.Clearly, the stage of Litis Contestitio had been reached at thetime of the deceased Defendant’s death.
Accordingly the Respondent should be permitted tocontinue the action for revocation of the gift against thePetitioners, after substitution. It must also be observedhowever that the reasoning given in the Judgment of theHigh Court of Civil Appeal in the Western Provinceappears to contradict the final order made therein. It was alsoincumbent upon the Trial Court to rule on the question ofpatent jurisdiction that was raised, instead of informingparties that it would be decided later when it was taken upat the hearing.
The appeal is accordingly dismissed. No Costs.
MARSOOF, J.I agree.
SRIPAVAN, J – I agree.
Appeal dismissed.