RATNAYAKE AND OTHERS v. KUMARIHAMY AND OTHERS

009-SLLR-SLLR-2002-V-1-RATNAYAKE-AND-OTHERS-v.-KUMARIHAMY-AND-OTHERS.pdf


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Ratnayake and Others v. Kumarihamy and Others
65
RATNAYAKE AND OTHERS
v.
KUMARIHAMY AND OTHERS
COURT OF APPEALWEERASURIYA, J., ANDDISSANAYAKE, J.
CA NO. 693/93 (F)
DC KURUNEGALA NO. 5548/PJUNE 06, 22, 23, 2001 ANDJULY 12, 2001
Partition Law, No. 21 of 1977 – Identity of corpus – Extent far in excess of extentin the schedule to the plaint – Boundaries in deeds – Variance with boundariesin preliminary plan – Land not included in the inventory in the testamentaryproceedings – Will it defeat the title of the deceased?
Per Weerasuriya, J.
"The system of land measure computed according to the extent of landrequired to sow with paddy or kurakkan vary due to the interaction of severalfactors. The amount of seed required could vary according to the varyingdegrees of the soil, the size and quality of the grain, and the peculiar qualitiesof the sower. In the circumstances it is difficult to correlate sowing extentaccurately by reference to surface areas."
Held:
The non inclusion of a land in a testamentary proceeding for the administrationof an estate of a deceased, cannot in any manner, defeat the title of the deceasedand his heirs.
APPEAL from the judgment of the District Court of Kurunegala.
Lakshman Perera for 1A, 4A & 5th defendant-appellants.
D. M. G. Dassanayake with Hemantha Situge for plaintiff-respondents.
Cur. adv. vult.
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November 09, 2001WEERASURIYA, J. (P/CA)
The plaintiff-respondent instituted this action to partition the land 1called Hapugaspitiyehena morefully described in the schedule to theplaint and depicted in the preliminary plan bearing No. 426, dated12. 12. 1975, drawn by W. C. S. M. Abeysekera, Licensed Surveyor(X). The deceased 1st and 4th defendants and the present 5thdefendant-appellant in their joint statement of claim, prayed for dis-missal of the action on the basis that lots 1 and 2 depicted in thepreliminary plan (X) is the land called Rawanaellahena and lot 3 isa portion of the land called Hitinawatta.
Based on this claim, several points of contest were accepted for 10adjudication at the trial.
The plaintiff-respondent asserted that Kiri Banda who was theoriginal owner of this land acquired title by virtue of 3 deeds, namely:
deed bearing No. 24614 dated 10. 03. 1898 (P1),
deed bearing No. 6131 dated 10. 03. 1898 (P2), and
deed bearing No. 71 dated 12. 09. 1922 (P3).
She revealed that Kiri Banda had 7 children from three marriages,namely :
Tikiri Banda, Wijesundara Banda and Ran Banda from thefirst marriage,
Anulawathie and Punchi Kumarihamy from the secondmarriage, and
(3)
Dingiri Amma (1st defendant) and Punchi l$anda (3rddefendant) from the third marriage.
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Ratnayake and Others v. Kumarihamy and Others
(Weerasuriya, J.)
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The plaintiff-respondent produced marked P4, deed bearingNo. 22273, dated 21. 09. 1951 by which Ranbanda transferredhis rights to Wijesundara Banda. The plaintiff-respondent acquiredrights from deed bearing No. 5671, dated 04. 01. 1971 from thesaid Wijesundara Banda. Tikiri Banda transferred his rights bydeed of conveyance bearing No. 13721, dated 22. 10. 1942 to Sujatha 30Kumarihamy (1st defendant).
Anulawathie Kumarihamy by deed of conveyance bearingNo. 22050, dated 12. 07. 1951 (P6), transferred her rights to PunchiBanda, who, thereafter, transferred the same to Sujatha Kumarihamyby deed of transfer No. 22051, dated 12. 07. 1951 (P7). SujathaKumarihamy by deed of conveyance No. 958, dated 27. 06. 1934(P8), purchased the rights of Punchi Kumarihamy.
On this chain of title, parties were entitled to undivided rights inthe following manner :
Plaintiff-4/1840
1st defedant-8/18
2nd defendant-3/18
3rd defendant-3/18
1A defendant-appellant in his testimony claimed that his fatherTikiri Banda Ratnayake acquired rights to this land from the followingdeeds :
DeedNo.6401dated12.09.1922(1D2)
DeedNo.6286dated23.08.1922(1D2)
DeedNo.6614dated16.11.1922(1D4)
DeedNo.3674dated30.05.1927(1D5)50
Deed No. 30960 dated 08. 01. 1902 (1D6)
At the hearing of this appeal, learned Counsel for the defendant-appellants contended that, plaintiff-respondent has failed to prove theidentity of the corpus. He based this submission on the followinggrounds :
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The extent of the land shown in the preliminary plan is 8A.
1R. 16P. far in excess of the extent described in the scheduleto the plaint.
The boundaries given in the deeds are at variance with theboundaries shown in the preliminary plan.
The extent given in the deed by which the plaintiff-respondent gotrights (P5) is 4 lahas of Kurakkan sowing extent. Learned Counselfor the defendant-appellants contended that the English equivalent tothe customary Sinhala measure of sowing of one laha is one acre.However, it is to be noted that this system of land measure computedaccording to the extent of land required to sow with paddy or Kurakkanvary due to the interaction of several factors. The amount of seedrequired could vary according to the varying degress of fertility of thesoil, the size and quality of the grain, and the peculiar qualities ofthe sower. In the circumstances, it is difficult to correlate sowing extent 70accurately by reference to surface areas, (vide Ceylon Law Recorder,vol. XXII, page XLVI).*
It is useful to examine the boundaries described in the deedsby which Kiri Banda purchased rights. Deeds P1 and P2 refer to aland called Hapugahapitiiyehena while deed P3 refer to a land calledKatugahapitiyehena.
P1
NorthMurutha tree and the rock belonging to
&Kosgahamulawatta.
South – Lunumidella tree and the boundary rock of the landowned by Punchi Banda Arachchirala.
West
Oya (stream).
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Ratnayake and Others v. Kumarihamy and Others
(Weerasuriya, J.)
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P2
North – Rock of Ketakelagahamula and Muruthagaha standingon land belonging to the vendor.
East – Ditch of the land owned by the vendee.
South – Maha Kosgaha and Totilla stump standing on the landowned by the vendor.
West-Oya (stream).90
P3
North – Murutha tree and the rock of Ketakelagahamula.
East-Ditch.
South-Jak tree andTotilla tree.
West-Ela (stream).
It would be relevant to note that Kiri Banda acquired rights fromthe above deeds in the years 1895, 1898 and 1922, respectively.
The boundaries given in the deeds P1 – P3 are described in theschedule to the original plaint and the first schedule to the amendedplaint.ioo
Ran Banda, a child of Kiri Banda by the first marriage, transferredby deed of conveyance marked P4, his rights to his brother WijesundaraBanda. This transfer effected in 1951 gives the boundaries as shownin the preliminary plan and the 2nd schedule to the amended plaint.They are as follows :
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North – Katupitiyewatta owned by Mrs. Peiris.
East – Cart road Mallopitiya.
South – Rawanaellawatta.
West – Field of Sujatha Kumarihamy.
However, in deed 14. 12. 1971 (P5) by which Wijesundara Banda 110conveyed rights to the plaintiff-respondent, the boundaries ofHapugaspitiyehena were given as follows :
North – By Murutha tree Ketakelagahamulagala.
East – By ditch.
South – By Maha Kosgaha and Totilla tree, andWest – by Oya.
Therefore, it would be seen that in deed P5, this land has beendescribed in the manner set out in the deed marked P3. It wouldbe significant to note that boundaries relating to North and South indeeds P1 – P3 and P5 were given by reference to certain varieties 12°of trees. In the absence of any names given to such lands on whichsuch trees stood, the question may be posed whether it is justifiablefor one to assert that boundaries are different, if the name of anyland is inserted in the later deeds.
It would be relevant to note that Kiri Banda the original owneradverted to by the plaintiff-respondent was the grandfather of thesubstituted 1A defendant-appellant. The 1A defendant-appellantconceded that his father Tikiri Banda Ratnayake was a son of KiriBanda, the original owner. In fact, he never sought to dispute theposition that Kiri Banda was the original owner. It would be seen that, isowhat the 1A defendant-appellant sought to place before the DistrictCourt, was some deeds by which his father acquired rights.
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Ratnayake and Others v. Kumarihamy and Others
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The plaintiff-respondent purchased rights from Wijesundara Bandaby deed marked P5 in 1971 wherein the boundaries had been givenin the manner described in the original plaint and the 1st scheduleto the amended plaint.
Tikiri Banda (father of the 1A defendant-appellant and brother ofWijesundara Banda and Ran Banda) by deed marked 1D1, transferredhis rights to Sujatha Kumarihamy (1st defendant) giving theboundaries as described in the deed P4 by which Ranbanda 140transferred his rights to Wijesundara Banda. It is to be emphasizedthat these boundaries are identical to the boundaries shown in thepreliminary plan X.
Anulawathie Kumarihamy, a child of Kiri Banda by the secondmarriage transferred her rights to Punchi Banda, another child of KiriBanda by the 3rd marriage, by deed marked P6, who onthe same day trasferred those rights to 1st defendant, SujathaKumarihamy. Therefore, it must be noted that Sujatha Kumarihamypurchased rights to this land from Tikiri Banda, father of the 4thdefendant-appellant.150
Punchi Kumarihamy, the other child by the second marriage ofKiri Banda transferred her rights as well to the deceased 1stdefendant, Sujatha Kumarihamy. It is to be highlighted that in deedsmarked 1D1, P6, P7 and P8 by which Sujatha Kumarihamy claimedtitle, land has been described in the same manner as shown in thepreliminary plan (X) and the 2nd schedule to the amended plaint.
Learned Counsel for the defendant-appellants contended that theland sought to be partitioned was not included in the inventory in thetestamentary proceedings of Kiri Banda. The non-inclusion of a landin testamentary proceedings for the administration of an estate of a ieodeceased cannot in any manner defeat the title of the deceased andhis heirs. Therefore, non-inclusion of this land in the inventory cannot
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wipe out any rights of Kiri Banda or his heirs. Anulawathie and PunchiKumarihamy had transferred their undivided rights on the basis ofpaternal inheritance and therefore they cannot disclaim any rightsfrom Kiri Banda to this land.
Tikiri Banda had purchased rights to the land called Rawanaellawatta.
In deed 1D1 by which Tikiri Banda transferred his rights ofHapughapitiyehena to Sujatha Kumarihamy (1st defendant)Rawanaellawatta has been described as the Southern boundary of 170Hapugahapitiyehena. Despite a reference in the deed of lease 1D13that Rawanaellawatta was also being called as Hapugahapitiyehenayet the Southern boundary is different.
The 1A defendant-appellant sought to identify lots 1 and 2 in thepreliminary plan as Rawanaellawatta depicted as lot A in plan 1118,containing an extent of 7 acres 2 roods and 21 perches. It is surprisingthat 1A defendant-appellant has never sought to superimpose the saidplan on the preliminary plan (X) to identify the land called Rawanaellawatta.
For the foregoing reasons, it seems to me that there was sufficient 180material to identify the corpus in this partition action.
The land described in the title deed of the plaintiff-respondent(P5) has been sufficiently identified as the land shown in thepreliminary plan. In the absence of a previous survey showing theprecise extent, the old land measures in terms of sowing extent cannotbe accurately correlated to surface areas.
Therefore, I proceed to dismiss this appeal with costs.DISSANAYAKE, J. – I agree.
Appeal dismissed.
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ANNEXURE 1
ANCIENT MEASURES OF CAPACITY AND SURFACE
(We reproduce below an extract from a paper read before the EngineeringAssociation of Ceylon by D. B. Ellepola, Esq., B.Sc. (London), F.R.G.S.,Superintendent of Surveys, Ceylon Survey Department, presently Controller of theInternal Purchase Scheme. In his paper he deals with Ancient Lineal Measures,Ancient Measures of Weight, Ancient Measures of Capacity, Ancient Measuresof Distances, and Ancient Surface Meaures.)
“The following is a Table of Measures in common use in Ceylon :
The measures actually in use were only the "Neliya" and the "Laha", the othersbeing merely terms used for deriving the larger measures. The *Laha“ was thelargest dry measure and the “Neliya", the largest liquid measure, this latter measurebeing used as both a grain and a liquid measure. For grain the "Neliya* wassometimes made of rattan, but for oil it was always made of bamboo, being equalin capacity to the space contained between two consecutive joints of a bamboo,whence it derives its name "Neliya".
The Neliya measure appears to have been in existence even in ancient India,for according to General Cunningham's Archaeological Report for 1871-72 p. XI"the old measures are usually made of joints of bamboo or of iron, and morerarely of hard wood. The commonest name for one of the smallestmeasures is the Neli".
Neliya measures may be seen in every village, even today, and are actuallyin use. It may readily be imagined how varying this measure can be, depending
4 Neliyas4 Lahas10 Lahas4 Pelas
4 Hunduwas (or Patas)
1 Neliya1 Laha1 Timba1 Pela
1 Amunam
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as it must, on the size of the bamboo, and the length of the joint. Referring tothis Pridham says as follows : "This measure varied and no two were to be foundactually alike. When these measures prevailed, standard gauges were depositedfor reference in every Kachcheri, as a protection against fraud through defectiveweights, a precaution absolutely requisite, where the natives would frequently placethe measures in boiling water, then dry them in the sun, and complete the roguery,by coating the interior surface with a thick layer of transparent dammer of pineresin".
The 'Laha' was also a measure of varying size. Wtihin the same district andsometimes in the same Chief Headman's division, in different parts, a differentsize of Laha was in use. In the North-Western Province alone, in different parts,these are in use even today, four sizes of "Lahas" containing in capacity, 4, 5,6 and 7 "Neliyas", respectively. The largest size of “Laha" according to myinvestigations is one in use in the Inamaluwa Korale of Matale North, and containstwelve "Nelis".
The various sizes of "Lahas" have in certain parts of the country differentnames. The "Punchi Laha" and "Loku Laha" are terms commonly used, andaccording to Pridham one and a half “Punchi Lahas" make a "Loku Laha." Mr.M. S. Crawford, late of the Ceylon Civil Service, in his Grain Tax Settlement Reportof Matale South refers to a 'Kalawita Laha'. This is a 'five Neli Laha1 and is socalled as it was the 'Laha' used in the threshing floors.
I should like to make mention here of two other measures, the names of.which are of some interest. One is the "Bandara Neliya" and according to Knox,this signifies the king's 'Neliya1. This contained four ‘patas,’ a 'pata' of grain beingas much as a man can hold heaped up in his whole hand palm and fingers andall. The other measure is the "Humba Neliya," which according to my informationis a measure in use in the Dambulla Vihare and said to hold three "Neliyas" ofgrain. It is said that the original "Humba Neliya" which the Vihare used, was ofthe capacity of six "Neliyas" of grain.
The "Laha" is a large mouthed measure, rather in the shape of a small sizedwashing basin and generally made of "Gansuriya" or "Demata" wood. Mr. R. W.Ivers in his "Manuel of the North-Central Province," states that in all agreementsregarding grain, it is always stated how many "Seers” or "Neliyas" the 'Laha' is
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to hold when the measurement takes place – a very necessary stipulation in viewof the varying sizes of Lahas in general use.
These measures have been related to the English standard measures which,according to the Ceylon Blue Book, are as follows :
1 Amunam =4Pelas
=40 Lahas
=8Parahs
=5Bushels or 160 Quarts or Seers or Neliyas.
The 'Parah' which is a Dutch measure, being adopted by Regn. No. 31 of1816 as the standard measure, was defined as perfect cube of internal sidemeasuring 11.57 inches. The Parah was again divided into 24 'Seers’, a 'Seer'being a cylinder of equal depth and diameter measuring 4.35 inches.
MISCELLANY
The sub-divisions and multiples of the 'Parah' as follows :
4 Cut Chundus=
4 4/5 Cut measures =2 1/2 Kurunis=
2 Marsals=
Parahs=
3/8 Amunams=
1 Cut Measure1 Kuruni1 Marsal1 Parah1 Amunam1 Last
The Cut Measure was legalised by the same Regulation, declaring that "thelegal contents of the measure in all transactions should be those remaining inthe measure level with the rim or edge, after the same had been struck or cutby a straight rod or 'strike' mounted with iron, resting upon the edges".
The above table of measures in “Neliyas," "Lahas" and “Pelas," in varyingforms are still used in all villages of the Kandyan Provinces.
In the low-country too, it is noteworthy, that in spite of the’long periods ofPortugese and Dutch rule, the systems of measurement, as quoted above still
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prevail. Apart from the introduction of measures of capacity such as the ”Parah"and "Marsal,“ which appear to be the equivalent of the Tamil terms ("Parah* and"Marakkal"), the Portuguese and Dutch appear to have left the local measuresuninterfered.
The Dry Measures in the Tamil District vary in the Northern and EasternProvinces. According to the Ceylon Manual, the Tamil measures of capacity andtheir relation to the English Bushel, as given in the Ceylon Blue Book are asfollows :
Northern Province
Jaffna32 Quarts (or Seers) = 1 Bushel
(Note. – According to Mudaliyar C. Rasanayagam thesystem of measure prevailing in Jaffna from pre Britishtimes is as follows :
Eastern Province
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I have made the above references in detail to the ancient measures of weightand capacity or dry measure, before discussing the Ancient Surface Measuresof Ceylon for the reason that surface areas were measured not by lineal or squaredmeasure, but by a measure of the quantity of seed required to sow the landi.e., "sowing extents." is in terms of grain capacity for sowing or "sowing extents".The scale of measures is as given below and starts from a "Mita" or "fistful" avery appropriate measure as a sower sows in "fistfuls". The common localexpression used to describe a man of straw, as a man not possessed of even"a Mita of land" has its orign here.
The following table is according to Modder in the Royal Asiatic Society'sJournal :
Mitas=1 Atalossa, i.e., handful with
the fingers slightly bent inwards1 Pata – a handful with the fingers stretchedout
8 Mitas
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Paddy – high land generally being sown in Kurakkan and low land in paddy. Thusit is, that we often have expressions such as "lhalagederawatta of 2 pelas Kurakkansowing extent" and "lhalagedera Kumbura of 1 amunam paddy sowing extent."In areas such as Kegalle District or the Central Province where sometimes Elwi,a kind of paddy, is sown on high land too the expression of high land areasin paddy sowing extents, is often encountered.
It will be obvious how difficult it is to correlate sowing extents accurately withsurface areas, as there are so many variable factors, depending on the size andquality of grain, the peculiarities of the sower, the fertility of the soil, etc., whichmake any assessment of surface areas by sowing extents very doubtful ofcomparison. In fertile lands the seed would be sown much less thickly than inpoor soil. An inexperienced sower would scatter the seed unevenly. No rigidcorrelation of surface areas by sowing extents is possible and the amunam sowingextent consequently varies in different parts of the Island.
The system of surface measures in sowing extents does not appear to havebeen altered at all by the Portuguese or the Dutch during the periods of theiroccupations. The Portuguese "Forals" and the Dutch "Thombos" particularly thelatter, give reference to the areas of the land in terms of sowing extents, i.e.,Amunams and Kurunis. The Portuguese "Forals" and Dutch "Thombos1 wereregisters prepared mainly for the purpose of taxation and therfore they concernedthemselves with only the produce of the land, and left apart the question of surfaceareas, these latter being merely recorded in the then established systems of sowingextents of Kurunis and Amunams. Such Dutch Thombos as are accompanied byplans, make reference to the extent in Dutch measures, together with a statementof the generally accepted sowing extent of the land.
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In the Tamil Districts of Ceylon too, i.e., the Northern and Eastern Provinces,the system of land measurement would seem to have been in sowing extents,and this system still prevails except in Jaffna, where in addition to the sowingmeasures a surface measure termed the “Kuli* appears to have been in use fromAncient times. This measure the “Kuli* is the extent of land containedwithin a square, of side equal to a "Kole“ or pole, in length approximately equalto 12 ft.
Appendix A is a table shewing the usual assessment of sowing extents inacres which is followed generally, but is not rigidly adhered to and is alwaysconsidered variable, depending on local information regarding the fertility of thesoil, the violence of the wind, the water supply and various other factors whichhave to be taken into consideration on account of local conditions.
This practice of the measurement of surface areas in sowing extents is notby any means peculiar to Ceylon and appears to be of Indian origin. I find thefollowing quoted by Mr. E. Thomas, as taken from "The Report on Kuman byG. W. Trail." "The mode of calculation of the measurement of land in use throughoutthe hills is by the estimated quantity of grain which the land will require to sowit. . . The most common denomination is the "Bisi" which has now been adoptedas a general standard. The regular bisi ought, as its name implies, to containland requiring 20 Nails (nali=a joint of bamboo) of seed. Its actual extent variesaccording to the quality of the soil, as the grain is sown much wider in poor landsnear the summit than in rich lands at the base of mountains."
ANNEXURE 2
"SINHALESE LAND MEASURES
Ceylon being primarily an agricultural country Land Measures used to becomputed according to the extent of land required to sow either paddy or kurakkan.The amount of seed required varied according to the varying degrees of fertilityin different parts of the Island, as fertile soil does not require as much seedas poor soil. For instance, an amunam in a fertile area will sometimes be twiceas many square feet as an amunam in an unfertile area. In spite of these variationsthese measures continue to be used by the villagers even at present and very
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frequently in our Courts when a land is defined by these measures the questionis raised as to their equivalents in English measurement. Generally it is agreedbetween the contesting parties or evidence is led as to the equivalent in Englishmeasurement of a bushel of paddy or kurakkan sowing in the area in questionand the table is worked out on this basis.
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The above table giving the English equivalents refers to paddy sowing, In thecase of kurakkan sowing 1 laha is equivalent to 1 acre and I pela is thereforeequivalent to 10 acres. Generally high land is measured in 'kurakkan' and lowlands (fields) in paddy."
(With acknowledgment to the New Illustrated Dictionary, C. A. C. Times GreenBook and Ferguson's Directory).
S. R. W.