SETHA, Appellant, and WEERAKOON, Respondent

068-NLR-NLR-V-49-SETHA-Appellant-and-WEERAKOON-Respondent.pdf


Setha v. Weemkoon.
226
1948Present : Howard C.J. and Dias J.
SETHA, Appellant, and WEERAKOON, Respondent.
S. C. 188—D. C. Kandy, 895.
Appeal —Sew point raised for first time—When it can be aigucd.
Lis pendens—Testamentary suit—When does litis eontestatio arise ?—
Q uestion of fact.
A new point which was not raised in the issues or in the course of the trialcannot bo raised for the first time in appeal, unless such point might havebeen raised at the trial under one of the issues framed, and the Court of Appealhas before it all the requisite material for deciding the point, or the questionis one of law and nothing more.
Whero during the pendency of a testamentary suit the heirs transferredtheir shares in a land belonging to the estate to a stranger—
Held, that the doctrine of lis pendens was not applicable, and that thedoctrine could become applicable only when a dispute or an issue arose betweenthe parties to the testamentary suit.
Velupillai v. Muthupillai {1923) 25 N. L. H. 261, considered.
Held, further, that litis eontestatio in such a case arises only when the oppositeside has been served with summons or notice of the claim. As to when litiseontestatio arises, it is a question of fact.
(1940) 41 N. L. R. 457.
226
DIAS J.—iSet ha v. Weerakoon.
-A.PPEAL from a judgment of the District Judge of Kandy.
F. A. Hayley, K.C., with N. K. CJioksy, K.C., and S. W. Jayasuriya,for the plaintiff, appellant.
N. E. Weerasooria, K.C., with E. F. N. Graliaen, K.G., C. E. S. Per&raII. W. Jayewardene and Sam. IVijesinha, for the defendant, respondent.
Cur. adv. wit.
February 3, 1948. Dias J.—
Kuda Ridee, a Kandyan woman, was married in diga to the plaintiff.She died in March, 1935, intestate and issueless leaving surviving herthe plaintiff, her brothers, Muttuwa and Kira, and a sister, Ukku Ridee.The land in dispute was her “ acquired property ” to which she obtainedtitle previous to her marriage to the plaintiff.
In D. C. Kandy Testamentary Case No. 5,299 the plaintiff appliedfor letters of administration in regard to the estate of his deceased wife.The respondents to that application were the brothers and sister of thedeceased whom the plaintiff described as “ her heirs at law ” —see D 4.They did not oppose the plaintiff’s application for letters. Thus nocontest arose in the testamentary case.
Under a writ issued against Muttuwa in D. C. Kandy 44,816 his un-divided one-third share which he inherited from the deceased KudaRidee, and which the plaintiff admitted he had inherited from KudaRidee, was sold in execution and purchased by one Punchirala on Sep-tember 27, 1935, during the pendency of the testamentary case. Thesale, however, was not confirmed by the Court until February, 1941.Punchirala did not obtain his Fiscal’s transfer D 13 for the land untilSeptember 24, 1942—see the recitals in D 13, and the copy of the orderconfirming the sale annexed to D 13.
Muttuwa and Punchirala together by deed D 12 dated July 30, 1938,sold Muttuwa’s one-third share to the defendant. Ukku Ridee onAugust 29, 1938, by deed D 20 sold her one-third to the defendant.Kira by deed D 21, dated September 17, 1938, conveyed his one-thirdshare to the defendant. Therefore, by September 17, 1938, the defend-ant, who was already in possession of the whole land under a lease grantedto him by the plaintiff, had obtained paper title to the whole land. Thetestamentary case was then pending. The defendant was in possessionunder a lease, P 1, given by the plaintiff.
There was, however, a blot on defendant’s title in regard to Muttuwa’sone-third share, because Punchirala, one of the vendors to the defendant,had not at the date of D 12 obtained a Fiscal’s transfer in his favour.This was sought to be rectified by the order confirming the sale datedFebruary 19, 1941, and the Fiscal’s conveyance D 13 dated September24, 1942. Punchirala by deed D 14, dated November 24, 1942, againtransferred his rights to the defendant.
Assuming that Muttuwa had legal title to one-third, in my opinionon the execution of the Fiscal’s transfer D 13, by virtue of the provisionsof section 289 of the Civil Procedure Code, Punchirala must be deemed.
DIAS J.—Setha v. Weerakoon.
227
to have been vested with the legal estate from the time of the sale, i.e.,from September 27,1935—see Wijeywardene v. Podisingho1. I am
also of the view that the effect of the deed D 14 was “ to feed ” the titleof the defendant under deed D 12 in regard to Muttuwa’s undividedone-third share—see Rajapakse v. Ferna ndo 2 and Gunatilbke v. Fernando 1 2 3.
At some point of time in the testamentary case, which has not beenprecisily ascertained, a contest arose in the testamentary case betweenthe plaintiff-administrator and the brothers and sister of Kuda Rideeas to whether the plaintiff was an heir of the deceased lady. In view ofwhat follows this was a material and important fact. The issue musthave been raised and notice served on the opposite parties. An inquirywas held and an appeal taken to the Supreme Court which held in thecase of Dunwweera v. Multuwa 4, reversing the judgment of the trialCourt, that the plaintiff succeeded to the acquired property of the deceasedlady in jneference to her brothers and sister. The decision of theSupreme Court is dated September 9, 1942, that is to say, after the orderconfirming the sale in execution to Punchirala, but prior to the issueof the Fiscal’s transfer, D 13, in Punchirala’s favour, and the deed D 14.
An attempt to appeal to the Privy Council against this decision onthe ground that the question involved was one of great general impor-tance having faded 5, the Legislature intervened. By Ordinance No. 25of 1944, a new section was added to the Kandyan Law Declaration andAmendment Ordinance, No. 39 of 1938. The new section ISa providesas follows :—
“ On the death intestate of a woman married in diga, leaving asurviving spouse but no child or descendant of a child, such survivingspouse shall not be entitled, and shall not be deemed to have been atany time entitled, to any part of the immovable property of thedeceased other than the part consisting of the acquired property towhich the deceased became entitled subsequent to and during thesubsistence of such marriage in diga ”.
Ordinance No. 25 of 1944, however, did not overrule the decisionin 43 A'. L. R. 512. Section 3 provides as follows:—
“ N< .ing in the new Section 18a, inserted in the principal Ordi-nance T>y section 2 of this Ordinance shall affect or be deemed orconstrued to affect—
the specific rights of property determined by—
the decision of the Supreme Court in the case of Dunuweera
v. Muttuwa et al. (D. C. Kandy 5,299 Testamentary)—(43 New Law Reports, page 512) ; or
the decision of any competent court in any other case
in which that decision of the Supreme Court wasfollowed at any time prior to the date on which thisOrdinance comes into operation ; or
1(1939) 40 N. L. R. at p. 223.3 (1921) 22 N. L. R. 385 Privy Council.
2(1920) 21 N. L. R. 495 Privy Council. ‘ (1942) 43 N. L. R. 512.
See (1942) 44 N. L. R. 49.
228
DIAS J.—Setha v. Weeralcoon.
the operation, in accordance with the law relating to res adjudicatesof the decision in any of the aforesaid cases as a bar to anyaction or proceeding in which any right of property determinedby that decision is intended or is likely to be put in issuebetween persons who were parties to that case, or personsclaiming through or under those parties on any title acquiredsubsequent to the date of that decision
In the present action the plaintiff-appellant (who was a party to theTestamentary case) sued the defendant-respondent, who was not aparty to that case and whose paper title to the land had accrued to himin September, 1938, under the lease P 1 for overholding, ejectmentand damages for causing waste. The defendant claimed title, and inreconvention claimed the sum of Rs. 25,000 as compensation forimprovements in the event of the plaintiff’s claim being successful.
At the trial no less than 24 issues were framed. The learned DistrictJudge in an able and exhaustive judgment examined the various sub-missions of the parties and held that no estoppel arose against the defend-ant, and that the title to the land in dispute was now vested in thedefendant by reason of the deeds from the brothers and sister of KudaRidee. He rejected the plaintiff’s claim and dismissed his action withcosts.
Mr. Hayley for the plaintiff-appellant, while generally accepting thefindings of the trial Judge, sought to raise a new point which is neithercovered by the issues framed at the trial, nor raised or argued at the trial.Mr. Weerasooria for the defendant-respondent objects either to thisnew. contention being raised or argued at this stage.
The law on this question is well settled by a decision of the Houseof Lords and a series of decisions of the Supreme Court. In the caseof The Tasmania1 Lord Herschell said “It appears to me that underthese circumstances, a Court of Appeal ought only to decide in favour ofan appellant on a ground there put forward for the first time, if it issatisfied beyond doubt, first, that it has before it all the facts bearingupon the new contention, as completely as would have been the caseif the controversy had arisen at the trial ; and, next, that no satisfactoryexplanation could have been offered by those whose conduct is impugned,if an opportunity for explanation had been afforded them when in thewitness box ”. In Appuharny v- Nova2 it was laid down, following thedecision in the Tasmania case (supra), that in a civil action all contentiousmatter becomes focussed in the issues of law and of fact which are framed.Whatever is not involved in those issues is to be taken as admitted byone party or the other. Therefore, it is not open to a party to put forwarda ground for the first time in appeal, unless it might have been put forwardin the Court below under some one or other of the issues framed ; andwhen such a ground, that is to say, a ground that might have been putforward in the Court below, is put forward for the first time in appeal, thecautions indicated in the case of The Tasmania (supra) may well beobserved. In Manian v. Sanmugam3 Bertram C.J. said : “ For the first,time on appeal, Mr. H. J. C. Pereira in scrutinizing the record found that the-
1 (1890) IS App. Cases 223.* (1912) 15 N. L. R. 311.
s (1920) 22 N. L. R. at p. 251.
DIAS J.—Setha v. Weerakoon.
229
evidence is formally insufficient to justify the learned Judge’s findingsof fact on this item … The point is, in effect, a point of law.
It is not that in a conflict of testimony the learned Judge’s findings iswrong; but that there is no evidence on record to justify the finding..It is, in fact, a point which might be taken in a case in which, underthe law,no appeal lay on a question of fact. The case seems to me to come withinthe principles enunciated in the case of The Tasmania …. Ithink we should be acting in accordance with the principles laid down bythe House of Lords in The Tasmania, and often followed by this Court,if we declared that this poir.t cannot be taken on the present appeal ”.In Fernando v. Abeygoonesekera1 it was laid down that a point of law,which is a point of law and nothing more, can be raised for the first timein the Court of Appeal—see also Talagala v. Gangodaivila Co-operativeStores Society Ltd2. In Arulai- yikai v. Thambu3 it was held thatthe Supreme Court may decide a point raised for the first time in appeal,where that point might have been put forward in the Court below underone of the issues raised, and where the Court of Appeal had before itall the material upon which the question could be decided.
The submission made by Mr. Hayley may be summarised thus:Although section 3 (d) of Ordinance No. 25 of 1944 makes no referenceto the doctrine of lis pendens, that doctrine, nevertheless, applies tothis case. At the date of the deeds D 12, D 20 and D 21 transferring theshares of this land were executed, the testamentary case was pending. Inaccordance with the decision in VelupiUai v. Mvdhapillai 4 it is submittedthat the doctrine of lis pendens applies, and the defendant is, therefore,bound by the decision in 43 N. L. R. 512. In other words, his vendorshad no title. It is further submitted that inasmuch as the deeds D *13and H 14 were executed after the date of the decision in. 43 N. L.
512, it is also subject to that decision. Mr. Hayley argues that hiscontention raises a pure question of law which may be raised for thefirst time in appeal.
Mr. Weerasooria, on the other hand, urges that the question now-raised is not a pure question of law, but a mixed question of law and fact;and that had the contention been raised as an issue or advanced at thetrial, he would have several defences open to him which he is now debarredfrom setting up. For example, he says that he could have proved byevidence that the conveyances to the defendant were made with theapproval of the plaintiff, and for the purpose of discharging the debtsof the deceased lady. If so, the question arises whether the plaintiffhaving permitted Muttuwa, Kira and TJkku Ridee to alienate the lands,he can be now permitted to raise this plea at this stage ? He furthersubmits that there were other questions and issues which may arise hadhe been able adequately to meei the contention which has been sprungon him in appeal for the first time. He points out that the point nowtaken is uncovered by any of the issues framed in the case, and thatcounsel for the plaintiff at no time took the point that the pendencyof the testamentary case affected the title of the defendanttotheland.
He further urges that the languageof Sec. 3 (b) of OrdinanceNo.25 of.
1 (1931) 34 N. L. R. at p. 164.* (1944) 45 N. L. R. 457.
» (1947) 48 N. L. R. 472.* (1923) 25 N. L. R. 261.
230
DIAS J.—Setha v. Weerakoon.
1944 is clear, and that the submission that the draftsman by mistakeomitted to include the doctrine of lis pendens cannot be accepted. Hesubmits that no lis arises by the more institution of a testamentary casewhich is concerned with the administration of the estate of a deceasedperson. A testamentary case may go on for many years and may neverreach finality through a judicial settlement. This testamentary case•was instituted in March, 1935—see D 7. There was no dispute betweenthe parties and no opposition to the application of the plaintiff for letters.Letters were issued to the plaintiff on March 19, 1930. The plaintifffiled his final account on November 29, 1937. It was at the judicialsettlement of the testamentary case that the dispute first arose andit was on September 9, 1942, that the Supreme Court in 43 N. L. R. 512held that the plaintiff was the heir.
The learned District Judge held that the decision as to the status ofthe plaintiff to inherit from his deceased wife is not a judgment in rembinding on the whole world, and, therefore, that decision is not bindingon the defendant who was no party to the testamentary case. Theappellant does not canvass that finding. An action in personam doesnot become litigious until litis contestalio1. In Muheeth v. Nadaraja-piUai 3 a Divisional Court held that litis contestalio in such an actionarises only upon the service of summons. When did litis contestalioarise in the testamentary case between the plaintiff-administrator and thebrothers and sister of Kuda Ridee ? Litis contestalio would arise whensummons or a notice of the dispute raised was served on the oppositeparty or parties. On that vital point there is no satisfactory evidence.We do not know on what date summons or notice was served. It wasa question of fact which had to be proved by the plaintiff at the trialif he was relying on the contention which has now been raised. It isclear that the testamentary case had proceeded normally withoutdispute for some time. It would seem that the deeds D 12, D 20 andD 21 were all executed long before this dispute as to heirship arose. Weknow that the plaintiff-administrator when applying for letters admittedthat the brothers and sister of his deceased wife were her heirs-at-law,for it was on that footing that they were made respondents. Therefore,in addition to the reasons urged by Mr. Weerasooria as to why thecontention raised by Mr. Hayley cannot be entertained at this stage,there is the further ground that a vitally important fact necessary forthe success of the appellant’s contention has been left in doubt.
The case of Velupillai v. Muthupillai3 lays down nothing more than■that in a testamentary suit, once an issue has arisen between the partiesand is pending as to whether X or Y is the heir of Z, a mortgage-given byX during the pendency of the dispute to a stranger is subject to the resultof the action. The term “ action ” is defined by section 6 of the CivilProcedure Code as “ Every application to a Court for relief or remedyobtainable through the exercise of the Court’s power or authority, orotherwise to invite its interference”. Thus, in the course of a testa-mentary suit there may arise at various stages of the proceedings
1 See Sande Cession of Action p. 66.
* (1917) 19 N. L. R. at p. 462, Divisional Court.
(1923) 25 N. L. R. 261.
NAG ALIN GAM J.—SabatxUnam v. Indo Lanka Provdt. Ins. Co., Madras. 231
subsidiary '‘actions” in which the parties may be at issue. It is aquestion of fact in each case as to when litis eontestatio arose so as togive rise to the doctrine of Its pendens. That fact has not beenproved, here.
I am of opinion that the point sought to be raised on appeal for thefirst time is not a pure question of law but is a mixed question of lawand fact. It is uncovered by any of the issues framed, and the defendant-respondent has no opportunity of adequately meeting this contentionin appeal. I am, therefore, of opinion that this is not a matter whichcan be raised for the first time in appeal. This being the only substantial,question raised, the appeal fails and must bo dismissed with costs.
Howard C.J.—I agree.
Appeal dismissed.