079-NLR-NLR-V-59-N.-SELLATHANGAM-Appellant-and-A.-ASSANARLEBBE-and-another-Respondents.pdf
350
BARNAYAKF., C.J.—Sellathangam v. A.ssanarlebbe
1957Present :Basnayake, C.J., and L. W. de Silva, A.J.
* ' . * .
N. SEBLATHANGAM, Appellant, and A. ASSANAPvBEBBEand another, Respondents
– S. C..651—D. G. Balticaloa, 1128 jL
Xjand Development Ordinance^—Contravention of Section 42—Effect—Section 71.
IVhere a grantee of land under the Land Development Ordinance transfersthe land to a person without obtaining the prior written consent of the Govern-ment Agent as required by section 42, the transfer is null and void and does nothave the effect of passing any right or title to the transferee. In such a case,the succession devolves according to the rules in tho Third Schedule.
jAlPPEAL from a judgment of the District Court, Batticaloa.
Renganathan, with P. Naguleswaram, for Plaintiff-Appellant. '
A. H. G. de Silva, Q.G., with A N. David, for Defendants-Respondenfcs.
July 25, 1957. Basnayake, C.J.—
This is an action instituted by one N. Sellatliangam, widow of Muru-gapper ICanapathipillai, in which she declares that she is tho successorof her late husband to two allotments of land described in tho scheduleto the plaint and granted to her huslxuid under the Band DevelopmentOrdinance. By two deeds Nos. 362 and 363 of 14th March 1949 andattested by V. K. Arulampalam, Notary Public, her late husband hadtransferred these two allotments of land to tho defendants withoutobtaining the prior written consent of tho Government Agent as requiredby section 42 of tho Band Development Ordinance. The learned trialJudge dismissed the plaintiff’s action on the ground that the plaintiffwas not entitled to tho lands described in the schedule to the plaint byvirtue of the operation of section 71 of the Band Development Ordinance,hut he does not seem to have taken into account the fact that where alife-holder is not nominated the succession devolves according to therules in the Third Schedule. The first, of such rules reads asfollows :—
“ Where, on tho death of the owner, no successor or life-holdersucceeds to the holding, the title thereto shall devolve op the survivingspouse of such deceased owner and, failing such spou.so, on one only ofthe relatives of such owner in tho order of priority in which they arerespectively mentioned in the subjoined table, – tho older being pre-ferred to the younger where there are more relatives than one inany group.
• Solomon Fernando v. Padma Fernando
351
Table
Sons.7. Brothers.
3. Daughters.8. Sisters.
Grandsons.0.Uncles.
Granddaughters.10.Aunts.
'Father.II.Nephews.
Mother.12.Nieces.
In this rule, ‘ relative ’ means a relative by blood and not by marriage. ”
It is clear that the deeds on which the defendants rely have been '•executed in contravention of section 42 of the Land Development Ordi-nance. That section declares that “ no disposition of a.protected holdingshall be effected except with the prior written consent of the Govern-ment Agent. ” The prohibition imposed by the section is absolute andany act done in contravention thereof is null and void. The deeds havebeen executed without the consent of the Government Agent. Thelearned trial Judge is therefore wrong in holding that the plaintiff isnot entitled to the lands claimed by her, and his judgment must bo setaside. The deeds executed by the deceased, being null and void, donot have the effect of passing any right or title to the lands dealt withtherein.•
We accordingly direct that decree be entered for the plaintiff as prayedfor in her plaint..
The appellant is entitled to costs both here and in'the court below.
W. be Selva, A.J.—I agree. ‘..
Appeal allowed.