036-SLLR-SLLR-2001-V-2-MALLIKA-FERNANDO-v.-NAGESH-FERNANDO.pdf
MALLIKA FERNANDO
ji
NAGESH FERNANDO
COURT OF APPEALJAYAWICKRAMA, J.
A. 979/97
C. COLOMBO 16894/LFEBRUARY 16, 2001MARCH 26, 2001
Civil Procedure Code – S. 147 – Raising of Issues – Issue of Law – Validityof a Deed – Registration of condominium property – Is it imperative -Apartment Ownership Law – S.3(l), 20(1) – Should the validity of theDeed be decided, on both of law and of fact.
Held :
The registration of condominium property is not imperative underthe Apartment Ownership law.
Non registration will not invalidate a deed, though it may lead toother legal consequences, it will not affect the legal rights of theowners of such property.
(ill) The entire question regarding the Issues 11, 12, 13 rests on thequestion of validity of Deed 854, whereby both the Plaintiff and theDefendant get rights by way of gift to which they have affixed theirsignatures. This is a matter which the Court has to decide after aproper trial.
Application in Revision from an Order of the District Court of Colombo.Cases referred to:
Pure Beverages Ltd., vs. Shamil Fernando – 1997 – 3 SLR 202.
Muthukrishnan vs. Gomes – 1994 – 3 SLR 1.
Romesh de Silva, PC., with Geethika Gunawardena for DefendantPetitioner.
Ranjan Suwandaratne for Plaintiff Respondent.
cur adv vu.lt.
404
Sri Lanka Law Reports
120011 2 Sri L.R.
May 15, 2001JAYAWICKRAMA, J.
This is an application to revise and set aside the order ofthe learned Additional District Judge of Colombo dated 28. 11.1997 wherein the learned Additional District Judge answeredissues No. 11, 12 and 13 in favour of the Plaintiff-Respondentand fixed the case for hearing of evidence.
The Plaintiff instituted this action against the Defendantwho is the Plaintiff’s step mother seeking inter alia for adeclaration of title to the 1st and the 2nd floors of the three storiedbuilding bearing *ko. 110/1 described in the schedule to theplaint.
When the trial taken up on 15. 03. 1996 admissions andthe issues were recorded and on 15. 09. 1997 it was decidedthat issues No. 11,12 and 13 be answered as questions of law.Thereafter written submissions were tendered by both partiesand the learned Additional District Judge answered the issuesin favour of the Plaintiff and decided to proceed with the trial.The question to be decided by the learned Additional DistrictJudge in respect of issues 11,12 and 13 was that whether theDeed No. 854 dated 25. 01. 1992 by which the Plaintiff claimstitle to this property was a valid deed in view of the provisionsof the Apartment Ownership Law No. 11/73. Deed No. 854 is adeed of gift whereby the donor, the father of the Plaintiff and thehusband of the Defendant gifted the ground floor with twogarages to the Defendant and her minor son and the 1st and the2nd floors to the Plaintiff. These deeds were signed by the Plaintiffand the Defendants as donees accepting the gift. The Defendantwho was a signatory to the deed is challenging the validity ofthis deed.
On behalf of the Defendant issues were raised challengingthe validity of deed No. 854 on the basis that it was not registeredunder the provisions of section 3 of the Apartment OwnershipLaw.
CA
MaUika Fernando v. Nagesh Fernando
(Jayawlckrama, J.)
405
Learned Counsel for0 the Defendant-Petitioner submittedthat it was common ground that the said property is not acondominium property and therefore the said donor CyrilFernando had no right to transfer the Is* and 2nd floors to thePlaintiff. He further submitted that in law a person who ownsthe land owns eveiy thing that stands on it and the owner of theland owns all rights up to the sky and down below. He furthercontended that the owner of the land owns all constructionsstanding on it and that under the Roman Dutch Law whateverwas built on the ground of another became the property of theowner of the ground. He further contended that in thecircumstances it is clear that one cannot giv^title separately tothe ground floor, 1st floor and 2nd floor. The learned Counselfurther contended that it is for that very reason that theApartment Ownership Law was brought into effect and underthat law it was possible to register condominium units and bysuch registration of condominium units it was possible to divestoneself s title and/or to hold title to condominium units.
Learned Counsel for the Plaintiff-Respondent submittedthat the Petitioner has failed to disclose the fact that when thesaid case came up for trial before a new Additional District Judgeon 15.09. 1997 that the parties have already adopted the issuesraised before the previous trial judge with permission of Courtand raised two consequential issues No. 16 and 17 and therebythe Petitioner has suppressed the most crucial material andhence the Petitioner is not entitled to apply for discretionaryrelief from this Court. The learned Counsel for the Plaintiff-Respondent further submitted that the learned*AdditionalDistrict Judge has carefully considered the submissions madeby the parties and answered the issues correctly.
It is to be noted that the entire question regarding the issuesNo. 11,12 and 13 rests on the question of the validity of deedNo. 854 whereby both the Plaintiff and the Defendant gets rightsby way of a gift to which they have affixed their signatures.Therefore it cannot be considered as a preliminary objectionon a question of law as this is a matter which the Court has to
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decide after a proper trial. The registration of condominiumproperly is not imperative under the Apartment Ownership law.Section 3(1) clearly states that any person claiming to be anowner of any condominium property “may” make applicationfor the registration of a plan of the condominium property. Thusregistration is at the discretion of the owner of any condominiumproperty. If a owner does not register a condominium propertyunder the provisions of the Apartment Ownership Law, he maybecome guilty of an offence under section 21 of the law but itwill not affect the owner’s rights in respect of the property. Anowner may register any condominium property under this lawand after registration under section 20(1) of the above law, hemay make an application to the District Court to terminate thecondominium status of such property and if the District Courtallows that application and makes an order terminating thecondominium status then the owners of such property shall bedeemed to be co-owners of the property in proportion to theirrespective interests. On a reading of the provisions of theApartment Ownership Law it is clear that non-registration ofcondominium property will not invalidate a deed. Non-registration of condominium property may lead to other legalconsequences but will not affect the legal rights of the owners ofsuch property. In any case such a question has to be decidedby the District Court after a trial. Therefore one cannot say inthis instance that the case may be disposed of on the issues oflaw only.
According to section 147 of the Civil Procedure Code whenissues both pf law and of fact arise in the same action, and theCourt is of opinion that the case may be disposed of on theissues of law only, it shall try those issues first. In this case it isvery clear that this case cannot be disposed of on the questionof die validity or otherwise of deed No. 854 as the AdditionalDistrict Judge has observed that this is a matter the Court hasto decide after leading of evidence at the trial. In Pure BeveragesLtd. vs. Shamil Fernando111, it was held that “if an issue of lawarise in relation to a fact or factual position in regard to whichparties are at variance that issue cannot and ought not to be
CA
Malllka Fernando v. Nagesh Fernando
(Jayawlckrama, J.)
407
v
tried Jlrst as a preliminary issue of law. It also needs to bestressed that in a trial of an action the question as to how orin what manner the issues have to be dealt with or tried isprimary a matter best left to the discretion of the,trial Judge,and a Court exercising appellate or revisionary powers oughtto be slow to interfere with that discretion except perhaps, ina case where it is patent or obvious that the discretion hasbeen exercised by the trial Judge not according to reason butaccording to caprice. "In Muthucrishnan vs. Gomes(2), it washeld that under section 147 of the Civil Procedure Code for acase to be disposed of on a preliminary issue, it should be apure question of law which goes to the root qf the case. It wasfurther held in that case that the Judges of original Courtsshould as far as practicable, go through the entire trial andanswer all the issues unless they are certain that a pure questionof law without the leading of evidence (apart from formalevidence) can dispose of the case.
In the instant case the validity of deed 854 cannot bedecided without , leading evidence to that effect. Even thoughthis deed admittedly has not been registered under theprovisions of the Apartment Ownership Law the owners couldbecome co-owners of the property on the termination ofcondominium status. In this case as the Defendant too hassigned and accepted the gift in deed No. 854 from which sheherself has benefited cannot be invalidated without leading ofevidence at a trial. It is question that the Court has to decidewhether the Defendant is estopped from denying the validity ofthe deed as she herself was a signatory to that dee<J. Thus it isvery clear that the non-registration of condominium propertyunder the Apartment Ownership law will not invalidate a deed.These are matters which has to be decided by a Court of lawafter trial. Thus it cannot be stated that such a complicatedquestion could be decided as a preliminary legal questionwhereby the case may be disposed of on the issues of law only.The validity of deed No. 854 has to be decided on both of lawand of fact. The learned Additional District Judge in a wellconsidered order has decided to proceed with the trial on the
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[2001] 2 SriL.R.
issues raised by the parties. I do ndt see any valid reason tointerfere with the order made by the learned Judge. The learnedJudge has considered the provisions of the ApartmentOwnership Law and the facts in this case very clearly and cometo a correct decision. Therefore this application for revision isdismissed with costs fixed at Rs. 5,000/= payable by theDefendant-Petitioner to Plaintiff-Respondent.
Application dismissed.