SENARATNE v. SENARATNE AND OTHERS

008-SLLR-SLLR-2002-V-1-SENARATNE-v.-SENARATNE-AND-OTHERS.pdf


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Senaratne v. Senaratne and Others
SENARATNE
v.SENARATNE AND OTHERS
SUPREME COURTAMERASINGHE, J.,
WADUGODAPITIYA, J. ANDEDUSSURIYA, J.
SC APPEAL NO. 1/98CA APPEAL NO. 349/91 (F)
DC COLOMBO NO. 24678/TJUNE 28, 2001
Testamentary action – Administration of estate – Intestate heirs – Gift of a partof the estate to one of the heirs pending administration – Right of such heir toa share of the remainder of the estate – Admissibility / evaluation of oral evidencefor varying such right.
Upon the death of one Senaratne intestate, his widow the original petitioner (nowdeceased) obtained letters of administration. During the pendency of testamentaryproceedings the widow and ail the children of late Senaratne – being respondentsto the petition – by deed No. 2642 gifted the rights which devolved on them onthe death of the deceased intestate in respect of premises No. 82, Galle Road,Bambalapitiya, to the 1st respondent-appellant, a daughter of late Senaratne.
Thereafter, the administratrix filed Final Accounts and the scheme of distributionof the estate leaving out the appellant on the ground that the appellant hadpromised to convey her rights to the remainder of the estate to the other heirs.Some of those heirs gave evidence before the District Judge supporting thatposition, but«'the appellant denied the existence of such a promise. She statedthat the said premises were gifted to her as dowry for her marriage and claimedher rights to the remainder of the estate.
Held:
The rights of the deceased intestate vested in his heirs immediately uponhis death and their rights in respect of the premises in dispute were validlygifted by a notarial deed.
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The terms of the deed of gift could not be varied by oral evidence; andin the absence of a notarially executed deed by which the appellantsurrendered her rights to the remainder of the estate, the appellantwas entitled to 1/10 “share" in the remainder of the estate.
There was no acceptable oral evidence of any promise by the appellantto give up her rights to the remainder of the estate, and in all thecircumstances, the submission of counsel for the repondents that theappellant held her share in the remainder of the estate in trust for theother heirs was untenable.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera, PC with Keerthi Sri Gunawardena for the appellant.
R. K. W. Goonasekera with Aravinda Athurupana for the 2nd substituted
petitioner-respondent.
Dr. Jayatissa Costa for the 4th and 5th respondents.
Cur. adv. vult.
August 29, 2001
EDUSSURIYA, J.
During the pendency of testamentary proceedings instituted by the 1original petitioner (now deceased) namely, the widow of one A. M.Senaratne, in respect of the said Senaratne's intestate estate the saidwidow and 2nd, 3rd, 4th and 5th respondents who are the daughterand sons of the deceased A. M. Senaratne gifted and conveyed therights which devolved on them on the death of the deceased intestatein respect of premises number 82, Galle Road, Bambalapitiya, to the1st respondent-appellant who is also a daughter of the deceased.
The petitioner-administratrix then filed an affidavit with accompa-nying amended Final Accounts on 15th March, 1985, along with a 10scheme of distribution of the estate leaving out the 1st respondent-
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appellant and took up the position that premises No. 82, Galle Roadwas gifted to the 1st respondent-appellant by the other heirs on the1st respondent promising to convey her rights in the remainder ofthe estate to the other heirs and was, therefore, not entitled to sharein the remainder of the estate of the deceased.
The 1st respondent-appellant then filed objections dated 15thNovember, 1988, seeking (1) a rejection of the amended Final Accounts
exclusion of premises No. 82, Galle Road, Bambalapitiya, as anasset of the estate on the ground that the other heirs gifted to her 20their rights in the said premises as her dowry on 24th July, 1972and whilst denying that she the 1st respondent-appellant had givenany undertaking to convey her rights in the remainder of the estateto the other heirs sought an order of Court entitling her to a 1/1 Othshare of the remainder of the estate both movable and immovable.
At the inquiry into the same the petitioner-administratrix givingevidence took up the position that the other heirs gifted their rightsin premises No. 82, Galle Road, Bambalapitiya, to the 1st respondent-appellant because the 1st respondent-appellant who had qualified inHomeopathic medicine wanted to set up practice therein.30
At the inquiry the following matters were put in issue :
According to the scheme of distribution, apart from premisesNo. 82, Galle Road, Bambalapitiya, is the 1st respondent entitledto a 1/1 Oth share of the remainder of the estate?
Were the rights of the other heirs gifted to the 1st respondenton the condition that the 1st respondent would waive her1/1 Oth share in the remainder of the estate and convey the sameto the petitioner and the 2nd to 5th respondents?
If issue No. 2 is answered in the affirmative is the 1st respondentestopped from asking for a 1/1 Oth share of the remainder of 40the estate?
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Can an oral agreement relating to immovable property beenforced in view of the provisions of the Prevention of FraudsOrdinance?
The said issues were answered by the learned District Judge asfollows :
Yes.(2) No. (3) No.(4) No.
An appeal was filed from the said order and the Court of Appealset aside the order of the District Court on the ground that "the learnedDistrict Judge has erred in rejecting the evidence of the petitioner and sotwo other heirs that the 1st respondent did renounce her right to hershare of the intestate property having already accepted as a gift bydeed No. 2642 the residential premises referred to therein and whichformed part of the instestate estate".
The Court of Appeal went on to hold that the 1st respondent(appellant before this Court) is not entitled to any further share inthe intestate property of the deceased and that the scheme ofdistribution be accepted.
It is settled law that where a person dies intestate leaving behindheirs, that the property belonging to the estate vests in the heirs eoaccording to the law of inheritance immediately, on death. Thus, forthis reason alone the judgment of the Court of Appeal must necessarilybe set aside since a 1/10th share of the entire estate of A. M.Senaratne had already vested in the 1st respondent-appellant and anysuch rights in the immovable property can be divested by the 1strespondent-appellant only by a notarially attested document.
This was conceded by the learned Counsel for the 2nd, 4th and5th respondents at the hearing of this appeal.
Counsel for the 2nd respondent with whom the Counsel for the4th and 5th respondents associated himself urged that although the 70
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learned District Judge had not taken into consideration the evidenceadduced by the then petitioner who is now deceased (and in whoseplace the original 2nd respondent has been substituted) and the otherrespondents who gave evidence in relation to the circumstancesor conditions under which the deed of gift in respect of premisesNo. 82, Galle Road, Bambalapitiya, came to be executed, on theground that such evidence cannot be led to vary the terms of anotarially attested document, such evidence was led only toestablish the conditions under which the said deed came to beexecuted and not to add to or vary the terms of the said deed, so
Learned Counsel has undoubtedly made this submission in viewof the statement at the end of the first paragraph at page 353 ofthe brief wherein the learned District Judge has stated that it is nownot open to any party to give evidence on any matters outside whatis reflected in the deed.
Although the learned District Judge has stated so, he has, in fact,considered the evidence given by the witnesses in respect of thecircumstances and conditions relating to the execution of the saiddeed of gift.
In fact, the learned District Judge has stated in his order that the 90deed does not refer to the 1st respondent giving an undertaking toconvey her rights in the remainder of the estate to the other heirsand that if there had been such an undertaking it would undoubtedlyhave been reflected in the deed of gift.
It was contended by the learned Counsel for the 2nd respondentthat – 1
(1)the 1st respondent-appellant is estopped by acquiescenceand or by encouragement from now claiming rights in theremainder of the estate of the deceased, and
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that the 1st respondent-appellant is holding the rights in theremainder of the estate in trust for the other heirs.
Although 1 have stated hereinbefore that the learned District Judgehas considered the evidence relating to the circumstances andconditions under which the said deed of gift came to be executedI will now proceed to examine that evidence at length in view of thesubmission that the 1st respondent-appellant did not give evidenceand also the contention that the 1st respondent-appellant is holdingher 1/10 of the remainder of the estate in trust for the other heirs.
The original petitioner in giving evidence spoke of the 1strespondent-appellant saying at the time that the deed of gift wasexecuted that she would not claim from the remainder of theestate. She also stated that one of the heirs refused to sign thedeed of gift saying that the 1st respondent could not be trusted andthat she had to plead with him to sign the said deed.
In these circumstances it is difficult to accept the position that theother heirs did not get the 1st respondent-appellant to gift her 1/10share in the remainder of the estate to them by the same deed orby getting the 1st respondent-appellant to execute another deed.Further, if as the petitioner stated the 1st respondent-appellant wantedto set up practice at No. 82, Galle Road, Bambalapitiya, theother heirs could easily have permitted the 1st respondent-appellantto do so without gifting the said premises to her. This confirms theposition taken by the 1st respondent-appellant in her objections thatthe said premises was gifted to her as a dowry in consideration ofher marriage which had been solemnized shortly after the executionof the deed of gift.
It was also elicited in evidence that the petitioner having giftedanother property belonging to the estate to one of her sons subjectto her life interest was litigating with him over the right to possession.However, that son has been included in the scheme of distributionof the estate.
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Then again when questioned in relation to the business that wascarried on at Armour Street the petitioner gave evasive evidence oftencontradicting herself, (pages 298, 299, 300, 301, 302). This evidenceshowed without doubt that her evidence was unacceptable. Her evi-dence regarding the Final Accounts which she at first denied filingbut later admitted by saying that "if I have signed it then I know. Ifit has been filed it should be in Court" should also be borne in mindin evaluating her evidence. The evidence of Ingrid Manel, anotherdaughter of the petitioner who had also been gifted an immovable 140property on the same day that the 1st respondent-appellant was giftedthe property at No. 82, Galle Road, Bambalpitiya, was more in thenature of a person who had resigned herself to being contented withwhat she had been given rather than litigating to get her rights.
Her evidence which appears at page 317 of the brief reads asfollows :
"we discussed and gave my elder sister the Bambalapitiya house.
I was given a house at Balapokuna. They were given on the conditionthat we do not ask for the other properties."
"After I was given the house I did not ask for rights in the other isoproperties. I am contented with what I got."
So that if at all, a condition had ben laid down, and it was unilateraland the evidence does not establish that the 1st respondent-appellantagreed to abide by such a condition. This is further confirmed by IngridManel (at page 326) that "when these two houses were given it wason the promise that we would not claim from the other properties.
We should be contented with what was given to us". … “It doesnot matter. What I got is enough".
Even the evidence of the other witness does not strengthen thecase of the petitioner namely that the 1st respondent-appellant agreed ieoto surrender her rights to the remainder of the estate. The entirety
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of the evidence led to establish a waiver or a promise by the 1strespondent-appellant accepting the gift on the condition that she wouldnot claim from the remaining properties is therefore totally unreliablefor the reasons given by me earlier and must, therefore, be rejected.In the circumstances the question of the 1st respondent-appellantgiving evidence to refute such unreliable evidence does not arise.It must also be borne in mind that there is no contemporaneousnotarially attested document gifting such 1/10 share in the remainderof the estate to the other heirs and that the oral evidence relatingto the same has come thirteen years later.
Further, the house which had been gifted to the 1st respondent-appellant was valued in the original inventory at Rs. 20,000 (whateverthe value may be now), whereas, the entire estate was valued atRs. 6,94,258/42 cts. Hence, even if there was such a condition ascla med by the petitioner-respondent it will not be equitable to holdthat the 1st respondent holds 1/10 share in the remainder of theestate in trust for the other heirs. Even Ingrid Manel had been gifteda property valued at Rs. 35,000.
We, therefore, allow this appeal and set aside the judqment ofthe Court of Appeal and restore the order of the District Court.
The 2nd respondent-substituted petitioner will pay a sum ofRs. 10,500 as costs.
AMERASINGHE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal allowed.