070-NLR-NLR-V-77-Mrs.-P.-D.-E.-GUNAWARDENA-Petitioner-and-D.-L.-D.-BASTIAN-Respondent.pdf
35tt
(JunawarrJena, v. Bastion
1974 Present: Walgampaya, J., Tittawella, J., andGunasekera, J.
Mrs. P. D. E. GUNAWARDENA, Petitioner, and D. L. D.BASTIAN, Respondent
S. C. 9/74—Application for a Writ of Certiorari inD. C. B. 26344
Debt Conciliation Ordinance (Can. 81), as amended by. Ant No. 5 of 1959—Section 19 (1) (2)—Conditional transfer of immovable property—Right of the transferor to transfer his rights to a third partysubsequently.
Where A transfers immovable property for a sum of money to Bsubject to the condition that, if A pays back the money within aspecified period to B, B should re-transfer the property to A or his“ aforewritten heirs, etc. ”, A would not be entitled to claim reliefunder the Debt Conciliation Ordinance before the expiry of thespecified period if he has already transferred to a third party C hisright to obtain a retransfer of the property. In such a case A ceasesto be a “ debtor ” once he divests himself of his right to obtain aretransfer.
GXTNASEKERA, J.—Gunawardena v. Bastion
367
APPLICATION for a Writ of Certiorari.
A. A. M. Marlene, for the petitioner.
J. G. Jayatilake, for the respondent.
Cut. adu. vult.
June 24, 1974. Gxjnasekera, J.—
This is an application for a Writ of Certiorari and/or Prohibi-tion filed by the petitioner against six respondents, the 2nd to 6thof whom are the members of the Debt Conciliation Board ofCeylon.
The first respondent to this application had by deed No. 3330dated 11.11.1969 transferred certain premises to the petitioner fora sum of Rs. 6,800 subject to the condition that if this sum ofRs. 6,800 was paid back to the petitioner within a period of threeyears the petitioner would re-transfer the premises to the firstrespondent or his “ aforewritten heirs, etc. By deed No. 783dated 19.4.1970 the first respondent transferred for a sum ofRs. 5,000 to one Prema Gunasekera “ all the rights and privilegesaccruing to me under and by virtue of deed No. 3330 dated11.11.1969 ”. Thereafter but before the expiry of the aforesaidthree year period the first respondent made an application to theDebt Conciliation Board for relief under the provisions of theDebt Conciliation Board Ordinance as amended by Act No. 5 of1959. At the inquiry before the Board the petitioner produced thesaid deed No. 783 and took objection to the first respondentscapacity to make any application to the Board and to the juris-diction of the Board to entertain the application of the1st Respondent. The Board made order overruling the objectionon the ground that any deed executed during the validity of theconditions in deed No. 3330 would be invalid. We assume that theBoard meant by this that the said deed No. 783 was invalid interms of the prohibition contained in Section 19 (1) and (2) ofthe Ordinance as amended by Act No. 5 of 1959. We are of theview that Section 19 (1) and (2) do not in anyway affect thevalidity of deed No. 783 as there is no prohibition whatsoever inthis section or any other provision of the Ordinance against thedebtor transferring his rights at any time.
As the applicant had prior to his making this application to theBoard divested himself of his right to obtain a retransfer of thisproperty we are of the view that he was not a debtor within themeaning of the Ordinance and that he had no status to make thisapplication. We, therefore, allow the application of the petitioner
368
Pathuma Natchiya v. Hanijfa
and make order quashing the orders of the Debt ConciliationBoard dated 10.5.73 and 13.10.73 and hold that the Board had nojurisdiction, in law, to entertain the application of the firstrespondent. As the first respondent opposed this applicationbefore this Court, we make order that the first respondent do paythe petitioner a sum of Rs. 210 as costs.
Walgampaya, J.—I agree.
Tittawella, J.—I agree.
Application allowed.