029-SLLR-SLLR-1997-V-1-PERERA-v.-RAMIAH.pdf
PERERA
V.RAMIAH
COURT OF APPEALGUNASEKERA. J.. (P/CA)
ISMAIL. J.
A. NO. 112/92
C. MT. LAVIN1A NO. 381/SPLJUNE 13. 1996.
OCTOBER 11. 1996.
OCTOBER 18. 1996.
Tenant – Seeking a declaration that owner is not entitled to breakdown – Damageportion of premises – Gift reserving life interest – Death of defendant owner -Substitution – Applicability of S.404 and S.398 of the Civil Procedure Code.
The plaintiff-respondent tenant sought a declaration, that the defendant-appellantowner is not entitled to breakdown a portion of the premises. The defendant byway of a claim in reconvention prayed for a declaration of title to the premises,and ejectment. Before the trial commenced the defendant gifted the premises tothe petitioner subject to life interest – The defendant died shortly thereafter.
The petitioner who is the daughter of the original defendant made an applicationfor substitution under S.404.
This application was on the basis that the transfer of the property was made toher pending the action, subject to life interest, and with her death, the petitioner’stitle became full and complete.
The plaintiff-respondent objected on the ground that substitution should be underS.398. The District Court refused the application of the petitioner, on the groundthat reliefs claimed were personal to the deceased.
Held:
The District Court has failed to consider the effect of the Deed of Gift by which theinterests of the deceased defendant devolved on the petitioner and that she hadtitle to the premises in suit at the time of her application for substitution.
The petitioner has acquired interest and title to the property which is the subjectmatter of the action and is entitled to be substituted in place of the deceaseddefendant in terms of S. 404.
Leave to appeal application, leave been granted.
Cases referred to:
t. Daniel Siiva v. Jayesekera, 46 NLR 316.
Kino Rudkin LR 1877 6 CLD 160.
Paaris and Another v. Bridget 1992 – 1 SLR 36.
Elisahamy v. Punchi Banda – 14 NLR 113 (FB)
Silva v. Jayawardena – 43 NLR 551 at 552.
Eugin Fernando v. Charles Perera and Another – 1988 2 CALR 37.
Prokash Chandra Das Gupta v. Sharma Charan Dutt and Others 1925AIR(Cal) 467.
Pannananda Them v. Sumangala Thero – 68 NLR 367.
Sheriff v. Beebi69 NLR 215.
10. M. Dhammananda Thero v. S. Saddananda Thero- 79 (1) NLR 289
N. S. A. Goonetillake PC., with N. Mahendra for petitioner.
P. A. D. Samarasekera with Rohana Jayawardane for plaintiff-respondent.
Cur. adv. vult.
January 01.1997.
ISMAIL, J.
The petitioner having obtained leave seeks to have the order of theDistrict Judge Mt. Lavinia dated 4th May 1992 set aside and an orderto be permitted to be substituted in the room of the deceaseddefendant to enable her to defend the action and to proceed with theclaim in reconvention set up by the original defendant.
The plaintiff-respondent claiming to be the tenant of premisesNo. 200, Galle Road. Wellawatte instituted an action against thedeceased defendant seeking a declaration that the defendant is notentitled to break down a portion of the premises or damage the sameor obstruct him from carrying on his'business called “Gandhi Lodge"or obstruct him from using the entirety of the process and fromoccupying the same.
The deceased defendant who was the owner of the premisespleaded in her amended answer dated 30.10.1989 that the premisesbearing No. 200, Galle Road, Wellawatte were destroyed by fire inJuly 1983 and that accordingly the plaintiff’s tenancy came to an endand that the plaintiff had no manner of right or title to occupy orremain in occupation of the said premises. The defendant by way ofa claim in reconvention prayed for declaration of title to the saidpremises, for ejectment and for accrued damages in an aggregatesum of Rs. 3,250,000/- up to the end of October 1985 and fordamages at Rs. 50,000/- per mensem until she was restored topossession. The amended replication dated 19.2.1990 of the plaintiffrespondent was filed thereafter.
Before the commencement of the trial the defendant by a deed ofgift bearing No. 1446 dated 9.8.1991 attested by N.Manoharan,Notary Public gifted the premises to the petitionerreserving to herself the life interest. The defendant died shortlythereafter on 13.8.1991.
The petitioner who is the daughter then made an application dated
under section 404 of the Civil Procedure Code and prayedthat she be substituted in the room of her deceased mother to enableher to defend the said action and also to proceed with the claim inreconvention set up by the deceased defendant. The plaint in thisaction was dated 12.6.86 and the original defendant died on 13.8.91before the trial in the action commenced. The petitioner sought to besubstituted on the basis that the transfer of the property was made toher pending the action subject to the life interest in favour of thedeceased defendant donor and that with her death petitioner's titlebecame full and complete not limited by the said life interest.
The plaintiff-respondent objected to the application of thepetitioner on the basis that substitution of a legal representative hasto be effected in terms of section 398 of the Civil Procedure Codeand that the petitioner cannot seek to continue the action as providedfor in section 404 of the Code. The parties tendered writtensubmissions and the District Judge by his order dated 4.5.92rejected the application of the petitioner. He expressed the view thatthe declaratory relief and ejectment from the premises prayed forwere personal to the deceased defendant and that her rights in theaction did not survive. He postponed the consideration of thequestion as to whether the accrued damages would go to the estateof the deceased until after substitution of the legal representative inaccordance with the provisions of section 398 was determined.
The plaintiff-respondent did not himself make an application tosubstitute the legal representatives of the deceased defendant interms of section 398 of the Code. It was the application of thepetitioner that stood rejected on the ground that the provisionsapplicable to effect substitution were not section 404 of the Code.However, learned counsel in the written submissions tendered hassought to justify the order of the Judge on the basis that section 404vests a discretion in the court as to the parties to be admitted asplaintiff or defendant relying partly on the observations of KeunemanSPJ in Daniel Silva v. Jayesekera ‘n. The decision in this case is notrelevant for the present purposes and does not support thecontention of counsel. However, I propose to refer to it as it explainsthe scope of section 404 of the Code. There the 2nd defendanttransferred and assigned all his rights in the subject matter of theaction for valuable consideration to the petitioner who sought tointervene in the action as a party defendant. The District Judge tookthe view that section 404 only permitted the plaintiff or the person towhom his interest has come to continue the action against thedefendant or the person to whom his interest has come and that thecourt had no right to force the plaintiff to proceed with his actionagainst the petitioner when the plaintiff was satisfied with obtainingdecree against the two defendants alone. It was contended at thehearing of the appeal that the District Judge had wrongly decided thequestion of law and that it was open to him even at that stage toadmit the petitioner as a party to the case. Keuneman SPJconsidered the provisions of section 404 which are as follows;
‘In other cases of assignment, creation, or devolution of anyinterest pending the action, the action may, with the leave of court,given either with the consent of all the parties or after service ofnotice in writing upon them, and hearing their objections, if any, becontinued by or against the person to whom such interest hascome, either in addition to or in substitution for, the person fromwhom it has passed, as the case may require."
Keuneman SPJ observed that "there is nothing in this sectionwhich prevents a party claiming to be added as a defendant in thecase of an assignment, creation or devolution of any interest in thesubject matter of the action. The important and controlling words inmy opinion are that “leave of court" must be obtained.
Keuneman SPJ further observed:
“In England, where the rule is not materially different, it has beenheld that a purchaser pendente lite can be admitted as a partydefendant.” See Kino v. Rudkin LRm.
He also referred to Order 22 Rule 10 of the Indian Code of CivilProcedure which is similar to section 404 of our Code. Woodroffeand Amir Ali in their commentaries on the Code of Civil Procedure,(1990) ed. at page 2246 explain the principle and scope of the rule
thus;
“1. Principle – This rule is based on the principle that trial of a suitcannot be brought to an end merely because the interest of a party inthe subject matter of the suit has devolved upon another during thependency of the suit but that suit may be continued against theperson acquiring the interest with the leave of Court.
2. Scope – It is a mere enabling section and it is not obligatory. Anassignee is not a necessary party under this rule. It may be that if atransferee does not apply to be impleaded, he may suffer by defaulton account of any order passed in the proceedings. But if he appliesto be impleaded as a party and to be heard, he has got to be soimpleaded and heard."
Dealing with the words “other cases of assignment, creation ordevolution of interest” the following passages at page 2266 state theeffect of the authorities.
“The words “other cases” in this rule mean cases other than thosespecifically provided for in the preceding rules in this order. It isintelligible that the Legislature whilst providing for incidents of “death,marriage and insolvency of the parties” should, at the end of theorder, make provision also for “other cases” of assignment, creationand devolution of any interest pending the suit”.
The interest contemplated in this rule is any interest which will bevitally affected by the suit.
These words in the first part of the section do not mean onlydevolution by death. They also apply to a case wherein, pending asuit instituted by the manager of an encumbered estate the estate isreleased and restored to the owner, by reason of his attainingmajority. This rule applies as well to the devolution of interest byoperation of law or in invitum. Transfer of property [subject matter ofthe appeal] by way of a gift to the wife is a case of devolution ofinterest and the case falls within this rule."
In Paaris and Another v: Bridget01; this court affirmed the positionthat the donee of the premises in suit from the deceased plaintiff canbe substituted in his place under section 404 of the Civil ProcedureCode.
Learned counsel for the plaintiff respondent has also relied on thefull bench judgment in Elisahamy v. Punchi Banda w; and submittedthat a party seeking declaration of title should retain title till the end,that is, until his death. I take it that counsel seeks to submit that thisaction came to an end when the deceased defendant donated theproperty to her daughter. This submission is presumably based on apassage from Voet 6:4:4 (Ganes translation volume 2 p. 214] andreferred to in this judgment, to the effect that “if in a vindicatory actionplaintiff loses ownership pendente lite, the defendant is discharged."This too does not appear to me to be relevant having regard to thefacts of this case. However, this passage has also come up forconsideration later in Silva v. Jayawardane (S>; where Keuneman J.said;
“It is clear that the action contemplated by Voet was the action reivindicatio and I think that it follows that all rights in rem against theproperty are lost when the dominium has been transferredpending the action to another person.”
In the case of Elisahamy v. Punchi Banda (Supra) in which duringthe pendency of an action for declaration of title, ejectment anddamages, consequent on trespass and the wrongful removal ofplumbago from the land in dispute, the plaintiff sold the land indispute to a third party; it was held 1] that the vendees need not beadded as plaintiffs; and 2] that the plaintiff was not precluded frommaintaining his claim for damages though he could not get a decreefor declaration of title and ejectment.
This decision was followed in Silva v. Jayawardene {Supra)referred to above, where after the institution of an action fordeclaration of title to five blocks of land the plaintiff transferred threeblocks, it was held that no decree for title can be entered in respectof the blocks sold. The right to claim damages up to the date of thetransfer was not affected by the sale.
The judgments in the two cases referred to above wereconsidered in some detail in Eugin Fernando v. Charles Perera andAnother<•>; Goonewardene J. finally held that “on a true reading ofsection 404 of the Civil Procedure Code there was no impediment tobringing in a purchaser of the plaintiff’s interest, in addition to theplaintiff and the action continuing to enable the purchaser to get reliefthat the plaintiff would have got but for the transfer."
In the present case the defendant gifted the premises in suit to thepetitioner by Deed No. 1446 dated 9.8.91 subject to the life interest inher favour. She died a few days later on 13.8.91.“Learned counsel forthe petitioner submitted that she got full and complete ownership ofthe property on the death of the donor defendant and that thepremises in suit could in no way form part of the estate of thedeceased. It was submitted that the learned District Judge erred inthe circumstances in holding that no interest devolved on thepetitioner and rejecting her application for substitution in terms ofsection 404 of the Code. However, the District Judge has observedthat in any event the petitioner would not be entitled to the accrueddamages claimed by the deceased and has postponed deciding thequestion as to whether it would accrue to the estate. Yet the positionappears to be that the petitioner to whom the Interest of thedeceased has devolved pending the action does not forfeit her rightto be substituted for the purposes of continuining with the action.
In the Indian case of Prokash Chandra Das Gupta v. SharmaCharan Dutt and Othersm the Court pointed out that in a case suchas this the simple question of law that arises –
"… is whether when there are two devolutions – the death of aparty and the transfer by him of his interest in the suit – thetransferee has the right to be brought on the record in place of thedeceased transferor. It seems to us on going through the severalsections of the Code dealing with this matter, that the twodevolutions are which have occurred in this case are distinct andgoverned by different considerations. The death of the plaintiffafter the assignment of his interest should not take away theassignee’s rights to be substituted in the suit. If effect is given tothe contrary contention the result will be that if a plaintiff afterselling his interest in the subject matter of the suit dies, before theassignee could make an application for substitution under Order22, Rule 10, the assignee will have no right to be brought on therecord and the legal representative of the deceased plaintiffhaving no interest in the subject matter there will be norepresentation in the suit, and the assignee will be deprived of hispurchase through no fault of his.”
I accept the submission on behalf of the petitioner that thelearned District Judge has erred in finding that the relief fordeclaration of title to the premises in suit and ejectment therefromwere personal to the deceased defendant. The District Judge hasfailed to consider effect of the deed of gift by which the interest of thedeceased defendant devolved on the petitioner and that she had titleto the premises in suit at the time of her application for substitution.
The applicability of section 404 of the Civil Procedure Code insuch a situation was -considered by the Supreme Court inPannananda Thero v. Sumangala Thero ,8). There it was held that,where a plaintiff who sues for a declaration that he is the lawfulViharadhipathi of the Vihara, and entitled to possess the temporalitiesthereof, dies during the pendency of the action, a person who canestablish that under the Buddhist Ecclesiastical Law, he would be thesuccessor-in-title to the incumbency upon the assumption that theplaintiff himself had been the incumbent is entitled to substitutionunder section 404 of the Civil Procedure Code. See also in Sheriff v.Beebi91 where, pending an action filed by the trustee of a mosque,the trustee died, the person who was subsequently appointed trusteeunder the Muslim Mosques and Charitable Wakfs Act, No. 51 of1956, was held entitled to be substituted in place of the deceasedplaintiff under section 404 of the Civil Procedure Code. The Courttook into consideration that the trust property would vest in the newlyappointed trustee and that it can be regarded as devolution ofinterest pending the action. Again in M. Dhammananda Thero v. D.Saddananda Therom the Supreme Court held that in an action fordeclaration of title to the office of Viharadhipathi of a temple on thedeath of a plaintiff or defendant (if he too claimed to be theViharadhipathi) the action can be continued by or against thesuccessor in title under section 404 of the Civil Procedure Code. Itwas considered that the action though in form an action for a statusor an office is in substance an action for a temple and thetemporalities which by operation of law belong to the Viharadhipathiof the temple.
For the reasons set out above I am of the view that the petitionerwho has acquired interest and title to the property which is thesubject matter of the action during its pendency is entitled to begranted leave to be substituted in place of the deceased defendantfor the action to be continued in terms of section 404 of the CivilProcedure Code. The order of the District Judge dated 4.5.92 is setaside and the petitioner is permitted to be substituted in place of thedeceased defendant in the action pending before the District Court.
GUNASEKERA, J. (P/CA) – I agree.
Appeal allowed.