RODRIGO v. BALASURIYA AND OTHERS

008-SLLR-SLLR-2002-3-RODRIGO-v.-BALASURIYA-AND-OTHERS.pdf


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Rodrigo v. Balasuriya and Others
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RODRIGO
v.
BALASURIYA AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 772/91 (F)
DC PANADURA NO. 2347/SplOCTOBER 12 AND 29, 2001 ANDDECEMBER 10, 2001
Civil Procedure Code, sections 712 and 736 – Car not in inventory of deceased- Motor Car Ordinance, No. 20 of 1927, sections 2, 19 (1), 19 (3), 19 (9) and26 – Registered owner only deemed to be the owner – Other relevant evidencecould be considered – Judicial settlement – Special proceedings – Administratordealt with accounting party.
When R.R. died and her properly was administered the car was not itemised inthe inventory relating to her property, though it was registered in the name ofR.R. However, when L.R. died, in the testamentary case filed in respect of hisestate the car was included in the inventory of property.
The plaintiff-appellant, the Administrator of the estate of L.R. instituted actionclaiming the' car. The defendant-respondent’s position was that the said vehiclebelonged to R.R. – and this was accepted by Court.
On appeal -Held:
Registration is not conclusive proof of ownership.
Other evidence that is relevant has to be considered.
Per Dissanayake, J.
“A person whose name is registered as owner of a motor vehicle is deemedto be the owner, only for the purposes of the Registration, that is renderhim liable to all those duties which the law cast upon the owner of sucha motor vehicle."
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In terms of section 736 of the Civil Procedure Code a contest that arisesbetween the accounting party and any other party in respect of propertyalleged to belong to the estate, to which the accounting party lays claim,that contest must be tried in the same special proceeding, ie the proceedingfor judicial settlement.
APPEAL from the judgment of the District Court of Panadura.
Cases referred to :
Suppamal v. Govinda Chetty – 44 NLR 193 at 197.
Samarasinghe v. Wijedasa – 8 CWR 3 at 4.
Rajan Gunaratne for plaintiff-appellant.
Upali Almeida for 1st, 2A, 4th and 5th defendant-respondents.
Cur. adv. vult.
February 22, 2002DISSANAYAKE, J.
The plaintiff-appellant instituted this action claiming that the RollsRoyce car bearing registration No. B 701 belonging to her late husbandLai Rodrigo, and that she being the administratrix of the estate ofLai Rodrigo bearing Panadura DC case No. 1450/ testamentary andfor the purpose of proceeding with the said action it was necessaryto take possession of the said vehicle which is presently kept atNo. 310, Galle Road, Panadura.
The defendants-respondents filed answer denying the variousaverments in the plaint and averred that the said vehicle belongedto Roslyn Rodrigo who was the mother of Lai Rodrigo and the 1stto 5th defendants-respondents, and prayed that the plaintiff-appellant'saction be dismissed.
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Rodrigo v. Balasuriya and Others (Dissanayake, J.)
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The case proceeded to trial on 4 issues and at the conclusionof the trial the learned District Judge by his judgment dated11. 10. 1991, dismissed the action of the plaintiff-appellant.
It is from the aforesaid judgment that this appeal has been preferred.
Learned counsel appearing for the plaintiff-appellant contended
that the learned District Judge erred in dismissing the plaintiff-
appellant’s action. He contended further that the learned trial Judge
erred on the following matters:
(a) He failed to embark on a proper analysis of the evidenceled in the case;
(£>) He failed to consider the legal effect of the three (3) inventoriesfiled in the testamentary case of Mrs. Roslyn Rodrigo, LaiRodrigo and Chitral Rodrigo;
He failed to consider the effect of possession of the RollsRoyce by Lai Rodrigo;
He failed to consider the legal implications of orderingamendment of the inventory of Mrs. Roslyn Rodrigo whodied as far back as 1963.
The dispute in this case revolves round the Rolls Royce car bearingNo. B 701/B, registered in the name of Mrs. Roslyn Rodrigo, in theregister of motor vehicles in 1947. The extract from the register wasproduced marked 1D4.
The plaintiff-appellant presented her case to the Court below onthe basis that after her marriage to Lai Rodrigo in 1952, the Rolls
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Royce car was bought by her husband from his aunt Mrs. AdleneMunasinghe for a sum of Rs. 1,750. However, since Lai Rodrigoalready was owner of another vehicle bearing No. X 7089 and becauseof the petrol rationing system that was in existence during the timeof the 2nd world war the Rolls Royce was registered in his motherRoslyn’s name. However, it was parked at No. 17, Dias Lane, Panadura,where they lived after marriage till 1964.
Lai Rodrigo used the Rolls Royce car till 1964 and entered thecar and drove the car himself at numerous Vintage car rallies thatwere held. From about 1961 or 1962 the set of tyres was worn outand he was not able to purchase a set of tyres locally for thecar and since then the car was not used.
In 1964 Lai Rodrigo and the plaintiff-appellant moved to No. 316Galle Road, Panadura. As that house did not have a garage the RollsRoyce was pushed to Lai’s mother’s house at No. 310, Galle Road,Panadura, and was kept there. Lai Rodrigo had possession of thekeys of the Rolls Royce.
In 1998 Roslyn Rodrigo died and her property was administeredin the District Court of Panadura, in case No. 907/Testamentary andin the inventory relating to her property which was filed marked andproduced P8 the car was not included, as it belonged to Lai Rodrigo.
Thereafter, Lai Rodrigo died on 20. 05.1978 and in the testamentarycase that was filed in respect of his estate bearing No. 1450/Testamentary the Rolls Royce was included in the inventory of propertiesin the said case which was marked and produced as P9.
The position of the defendants-respondents was that wheneverRoslyn Rodrigo purchased any property it was purchased in the name
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of Lai and therefore whatever that was purchased in his name waspurchased in trust for the mother. However, this was not established.When Roslyn Rodrigo had 2 sons, Lai and Chitral along with 4 sistersit is difficult to understand as to why she would have purchased articlesonly in Lai’s name. However, the so called trust was not put in issue.Thereby, the defendants-respondents have conceded that legal titleto the vehicle was with Lai Rodrigo.
It is relevant to observe that the defendants-respondents were notin a position to dispute Lai Rodrigo’s legal title to the vehicle andthe fact that they never disputed his possession of the car duringhis lifetime and the fact that they waited till he died to claim legaltitle to the vehicle, are factors which indicate that their claim to thevehicle was an afterthought.
Parakrama Paranawithana a son-in-law of Roslyn Rodrigo statedin evidence that he married in 1954. From the time of his marriagethe car was in his mother-in-law’s garage. He further stated that thecar was in a running condition only for about 3 years since hismarriage.
Document P7 which was awarded to Lai for participating with theRolls Royce at the Vintage car rally held on 5th September, 1959,belies his evidence.
Paranawithana who was a joint administrator of Roslyn Rodrigo’stestamentary case in his evidence stated that he did not take stepsto have the Rolls Royce included in the inventory. The reason givenby him for that is that it had no value.
However, it is interesting to note that on a perusal of the saidinventory (P8) the following items too had been included. The furniture
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of the house valued at Rs. 500, compensation of Rs. 30 payable bythe Urban Council and Rs. 129/78 as medical expenses. Therefore,Paranawithane’s explanation that the Rolls Royce was not includedin the inventory as it had no value cannot be accepted.
Despite the joint affidavit setting out the inventory marked P8 filedin Roslyn’s testamentary case which is a joint affidavit affirmed to byParanawithana, Lai Rodrigo and his sister Maheswary Paranawithanaaffirming to the effect that Roslyn’s estate consisted only of the itemsmentioned in the inventory to the best of their knowledge. Paranawithanain his testimony before the Court below admitted that he affirmed toa false affidavit.
Despite the widow of Chitral Rodrigo, the 3rd defendant-respondentstating in her evidence that she was aware that her husband wasentitled to shares in this vehicle from 1978, she admitted that herhusband died in 1982 after leaving a Last Will. However, she madeno mention of the Rolls Royce car being included in the said LastWill. Further, the 3rd defendant-respondent did not include the RollsRoyce as belonging to her late husband’s estate, in the testamentarycase relating to her husband.
Further, the 3rd defendant-respondent gave evidence of lettermarked 1D2 dated 04. 02. 1976 whereby Lai requested his brotherto sign the transfer papers as the car was in the mother’s name. Inreply to letter 1D2 the 3rd defendant-respondent’s husband Chitralsent letter dated 4th February, 1976 (1D3) her husband Chitral didnot contest Lai’s right to have the Rolls Royce transferred in his name.However, in that letter he stated that the transfer can be effected afterthe mother’s estate is finally divided among the heirs. Chitral who wasone of the respondents in their mother’s testamentary case, shouldhave known that the Rolls Royce was not included in the mother’s
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inventory of assets dated 10th September, 1972 and therefore he knewthat when the mother’s estate is finally divided among the heirs,Roslyn’s heirs would have no claim to the Rolls Royce. However,no steps have been taken by the heirs of Roslyn Rodrigo to havethe inventory amended. Chitral did not make any reference to the RollsRoyce in his Last Will.
The question whether property not included in the inventory of thedeceased and claimed by and included in the inventory of anothercan be claimed by the heirs of the deceased has to be answeredin the negative.
In terms of section 712 of the Civil Procedure Code any personinterested in the estate is entitled to move in the testamentary caseitself stating that the administrators have failed to file an inventoryor a sufficient inventory. If the Court is satisfied that the administratoris in default, the Court shall order the delinquent to file an inventoryor a further inventory. The administrator will be liable to be dealt withfor contempt proceedings.
In terms of section 736 of the Civil Procedure Code, a contestthat arises between the accounting party and any other party in respectof property alleged to belong to the estate, to which the accountingparty lays claim, that contest must be tried in the same specialproceeding, ie to say, the proceeding for judicial settlement, (perSoertsz, J. in Suppumal v. Govinda Chetty*'' at 195).
The defendants-respondents case was based solely on the factthat the Rolls Royce was registered in the name of Roslyn Rodrigoin the register of motor vehicles in 1947. They claimed as heirs ofRoslyn Rodrigo.
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In the case of Samarasinghe v. Wijedasa® at 4, Schneider, AJ.stated: “A person whose name is registered as owner of a motorvehicle is deemed to be the owner, of that vehicle only for the purposesof that registration, that is, to render him liable to all those duties,which the law cast upon the owner of a motor vehicle. That registrationis by no means conclusive as to the real ownership of the motorvehicle”.
Since it has been held that registration is not conclusive proof ofownership it is necessary to consider the effect of registration.
To determine the effect of registration it is necessary to examineclause 2 of the Motor Car Ordinance, Ordinance No. 20 of 1927 asamended, which governed the registration of vehicles in 1947. Section2 reads as follows: “Unless otherwise provided this Ordinance appliesto a motor car only when on a highway”.
Section 26 enacted that, for the purposes of any proceedings underthis Ordinance, the registered owner of a motor car shall be deemedto be the owner provided that it shall be a good defence for theregistered owner to prove that the motor car was at the time of anyalleged offence in the possession of the absolute owner undersection 19 (3) where the Court after hearing the absolute owners shallconsider him as the owner.
Section 19 (1) enacted that no person shall possess or use a motorcar unless the person for the time being entitled to the possessionthereof is duly registered as the owner.
Section 19 (3) (a) states that that where the person entitled tothe possession of a motor car is not the absolute owner, he mayapply to the registrar to enter his name as the absolute owner.
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It is clear from these provisions of the Motor Car Ordinance, thatthe registration of Roslyn Rodrigo as the owner has no bearing onthe question of ownership that has to be determined in this case anddoes not even constitute prima facie evidence of ownership.
On the contrary despite the fact of the learned District Judge notallowing in evidence the receipts issued by Mrs. Adlene Munasinghefor payment by instalments on 25. 05. 43, 05. 06. 43 and 21. 02.
43, made by the plaintiff-appellant which were marked P2, P3 and 180P4, subject to proof, for want of proof of the said documents, theplaintiff-appellant established the fact that Lai Rodrigo purchased theRolls Royce from his aunt Mrs. Adlene Munasinghe by the followingevidence:
By letter P5, that Lai Rodrigo negotiated with Mrs. AdleneMunasinghe to purchase the Rolls Royce on differred paymentsand he was requested to take possession of the vehicle byMrs. Adlene Munasinghe.
That Lai Rodrigo was the registered owner of Austin Carbearing No. X 7089 and due to the petrol rationing scheme 190that was there during the period of the 2nd world war hedid not get the Rolls Royce registered in his name.
Lai Rodrigo bought the vehicle in 1943. The 3rd defendant-respondent in her evidence conceded that there was a petrolrationing scheme during the period of war which ended in1944.
(c0 That at No. 310, Galle Road, the house where his motherlived had a garage and house No. 316, Galle Road, wherehe shifted to did not have a garage; that was the reasonwhy the Rolls Royce was left in the garage of the mother’s 200house.
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(e) Non-inclusion of the said vehicle in his mother’s (RoslynRodrigo’s) Inventory of Assets in her testamentarycase bearing No. 907/T despite his sister Maheswary, 2nddefendant-respondent and brother in-law Paranawithane,the 5th defendant-respondent being joint administrators.
(9Inclusion of the said car in the inventory of assets of Lai
Rodrigo’s testamentary action bearing No. 450/T.
(g) Non-inclusion of the said vehicle or a share of it in thetestamentary case of Chitral, the late husband of the 3rddefendant-respondent.
It is of relevance to observe that the learned District Judge didnot embark on a proper analysis of the evidence in the case. Thelearned District Judge apparently based his decision solely on the factof the registration of the name of Roslyn Rodrigo as the owner. Hedid not consider the other evidence that was relevant to be consideredand thereby he erred. Therefore, the said judgment cannot be allowedto stand. I
I set aside the judgment of the learned District Judge dated11. 10. 1991 and direct the learned District Judge to enter judgmentfor the plaintiff-appellant as prayed for with costs.
The appeal is allowed with costs.
A. M. SOMAWANSA, J. – I agree.
Appeal allowed.
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