010-NLR-NLR-V-44-SETHA-v.-MUTTUWA.pdf
Setha v. Muttuwa.
4v
19ttPresent: Howard CJ. and Soertsz J.
SETHA v. MUTTUWA.
41—D. C. Kandy, 5J299.
Privy Council—Application for conditional leave—Value of subject-matter—Appreciation in value—Value of appellant’s interest—Rule of successionin Kandyan Law—Matter of general or public importance—PrivyCouncil (Appeals) Ordinance (Cap. 85), Rule 1 (a) and 1 (b).
Where, in an application for conditional leave to Appeal to the Privy-Council, the property which is the subject-matter of the application hasappreciated in value since the institution of proceedings the applicantshould be allowed to prove its value at the time of appeal unless there isevidence of a fraudulent under-valuation.
De Alwis v. Appuhamy (30 N. L. R. 421) followed.
In determining the right, of appeal the test that should be applied is,how does the judgment affect the interests of the party who is prejudicedby it and who seeks to relieve himself from it by appeal ?
A question of intestate succession arising in Kandyan law in circum-stances that are more of uncommon than of common occurrence is notone of great general or public importance within the meaning ofRule (1)(b) of the -Rules in the Schedule to the Privy Council
(Appeals) Ordinance.
T
HTS was an application for conditional leave to appeal to the PrivyCouncil.
V. Perera, K.C. (with him N. Nadarajah, K.C., and E. B. Wikrema-nayake), for the applicant.— This application is made under rule 1 (a)of the Schedule to the Privy Council (Appeals) Ordinance (Cap. 85) or,alternatively, under rule 1 (b) of the same Schedule.
Although the subject-matter of the action was valued in the DistrictCourt at less than Rs. 5,000 the value of it has now appreciated and,according to the affidavit and report of a recognized assessor, exceedsRs. 10,000. What is material is the value of the subject-matter at thepoint of time when application is made for leave to appeal to the PrivyCouncil. Vide de Alwis v. Appuhamy
The question involved in the appeal is one which, “ by reason. of itsgreat general or public importance or otherwise ”, ought to be submittedto His Majesty in Council for decision under rule (1) (b). A rule ofKandyan Law which was regarded as finally settled in 1922 in the case ofSeneviratne v. Halangoda,* has been disturbed by the decision of theSupreme Court in the present case. – In Seneviratne v. Halangoda itwas decided that where a Kandyan wife married in diga dies issueless,the husband does not inherit any portion of the wife’s landed propertyacquired before marriage. The ruling in that case was accepted asfinal in die Report of the Kandyan Law Commission (1935) and hasalways been acted upon. Titles that are settled would become unsettledin consequence of the present decision.
1 (1922) 24 N. L. S. 257.
■ (1929) 30 N. L. R. 421.
so
SOERTSZ J.—Setha v. Muttuwa.
N. K. Choksy (with him S. R. Wijayatilake) for the respondent.—Thevalue put upon the matter in dispute in the District Court is the deter-mining factor and cannot be altered at this stage—Appuhamy v. VictorCorea1. Further, in a testamentary action, the valuation given in theinventory decides the value of the action—Balahamy v. Dinohamy'.
Even if the total value of the estate is worth more than Rs. 5,000 theapplicant’s interest in it is only in respect of one-third and does notamount to Rs. 5,000. The test for determining value for the purposeof the present application is. the extent to which the judgment of theSupreme Court affects the interest of the petitioner who is prejudicedby it—Allan v. Pratt'; Thevagnanasekeram v. Kuppammal et al.';Ahamadu Lebbe et al. v. Abdul Coder et al.‘; Sathasiva Kurukkal v.Subramaniam Kurukkal0; Pemaratna Thero v. Indasara Thero
The question involved in this case is not one of great general or publicimportance. No settled practice has been upset by the judgment of theSupreme Court. The present case can be distinguished from Seneviratnev. Halangoda (supra) and is more similar to Jasingedera Naide Appu v.Palingurala et al’ and Kalu v. Lami *. Questions of greater generalimportance, such as concerning registration, partition, the incumbencyof a historic Buddhist temple, were not regarded as important enoughfor reference to the Privy Council—Gooneratne v. Bishop of Colombo “;Pemaratna Thero v. Indasara Thero (supra). The words “ or otherwise ” inrule 1 (b) must receive an ejusdem generis interpretation and the SupremeCourt, in exercising its powers under this rule, should be guided by theprinciples on which the Privy Council itself acts in dealing with appli-cations for special leave to appeal in civil cases—Pit die Tamby et al. v.Cassim Marikar et al.u.
H. V. Perera, K.C., in reply.—Not only the applicant’s right but the. rights of his brother and sister also are involved in this appeal. If theapplicant succeeds,, the two others also succeed, although formally theyare respondents to the present application. Rule 1 (a) allows a right ofappeal not only where the appeal involves directly but also indirectly-aclaim or question respecting property of the value of Rs. 5,000 or upwards.
The words “or otherwise ” in rule 1 (b) are intended to give the SupremeCourt a very Wide discretion. The present decision is definitely in■ conflict with Seneviratne v. Halangoda (supra) and settled law has beenunsettled.
' ’ Cur. adv. vult.
November 11, 1942. Soertsz J.—
This is an application for conditional leave to appeal to His Majesty inCouncil, from a judgment of two Judges of this Court. The applicationpurports, in the first instance; to be made as of right, under rule 1 (a) ofthe Privy Councils (Appeal) Ordinance, on the footing that “ the matterin dispute on the appeal ” is over Rs. 5,000 in value ; or, alternatively,under rule 1 (b) “ at the discretion of the Court ”, on the ground that
' (1900)1 Browne 165.‘ (1929) 31 N. L. R. 165.
' (1926)27 N.L. R. 410 at 414.5 (1938) 13 C. L. W. 9. '
1 (1S88)13 A.C-. 780.’■(1879) 2 S. C. C. 176
< (1934)36 jV.L. R. 404.'(1905) 11 N. L. R. 222.
(1931) 33 N. L. R. 337." (1931) 33 N. L. R. 63.
" (1914) 18 X. L. R. 117.
SOERTSZ J.—Setha v. Muttuwa.a l
the matter involved in the appeal is of great general importance forthe reasons stated in paragraphs 4 (a), (b) and (c) of the petition to whichI shall presently refer.
This application is made by the third respondent in D. C. Kandy,No. 5,299 (Testamentary). The first and second respondents to thoseproceedings are his brother and sister, respectively. The petitioner inthose proceedings is their brother-in-law, the husband of one Kuda Ridi,sister of the three respondents, who died intestate leaving an estate valuedin the inventory at Rs. 4,245.
There was a contest in the Court below which raised the questionwhether Kuda Ridi’s heirs were her two brothers and her sister orwhether her diga-married husband was her sole heir. The trial Judgefound in favour of the brothers and the sister, relying on the authority ofthe judgment in the case of Seneviratne v. Halangoda {supra). Onappeal, the judgment of the trial Judge was reversed, and the husbandwas declared to be heir. It is from this o~der that conditional leave toappeal is sought.
The application is resisted by the husband on two grounds : —Firstly,,on the ground that there is no right of appeal inasmuch as the propertyinvolved in the case is not worth Rs. 5,000 or, alternatively, inasmuchas the applicant’s share of the property, if he is entitled to a share, is no-worth Rs. 5,000. Secondly, on the ground that, so far as we are askedto exercise our discretion, under rule 1 (b), that the matter in dispute isnot of great general importance, nor of public importance, nor otherwisea matter calling for the exercise of that discretion.
In regard to the first objection, the value put upon the estate in theinventory is as already pointed out, Rs.' 4,245. Counsel relies on theold case of Appuhamy v. Corea {supra), in which the plaintiff was held tothe value he had put upon the property in his. plaint, and was refusedleave to appeal to the Privy Council because that value was underRs. 5,000. A request for a re-valuation was refused largely for the reasonthat, on the plaintiff’s own showing, he had deliberately undervalued theproperty, and had so avoided payment of the proper stamp duty. But, aspointed out byiyall-Grant J. in the case of De Alwis v. Appuhamy {supra),the established principle appears to be that where there has been no fraudon the part "of the appellant and where he has not consented to a lowervaluation for the purpose of obtaining some advantage, he should beallowed to p~ove the value of his claim, and that where the value hasappreciated since the date when action was first taken, he should beallowed to prove the value a't the time of appeal
The present case falls clearly within that principle. There is: noindication whatever of a fraudulent under-valuation. It was a valuationput upon the estate not by the applicant, but by his brother-in-law, whonow opposes this application, and the applicant’s case is that the pro-perties have appreciated in value since that date. We are satisfied uponthe material before us that the whole estate is presently, worth Rs. 10,000,a fact not seriously disputed:
But the question still remains whether, for the purpose of determiningthe applicant’s right of appeal, the total value.of the estate or the valueof the share the applicant would be entitled to, is the relevant value.
52
SOERTSZ J.—Setha v. Muttuwa.
In regard to this question, the applicant’s brother and sister do notassociate themselves with the applicant in this application. Indeed,it was conceded that they are content with the order made on appeal,and it is difficult to see how the applicant can claim that the value oftheir shares too should be taken into account in valuing the matter indispute on the appeal. What would the position have been, for instance,if, from the outset, the applicant’s brother and sister had supported thecase of their brother-in-law, that he was the lawful heir ? Wouldthe applicant have been able, in that event too, to ask that the valueof their shares be reckoned ? It seems to me that the principle enunci-ated by Lord Selbome in Allan v. Pratt (supra) governs the question ;that principle is “ that the judgment is to be looked at as it affects theinterests of the party who is prejudiced by it and who. seeks to relievehimself of it by appeal”. That was the principle by which this Courtguided itself in Bandara v. Bandarato cite one case. Looked at in thisway, I do not think it can be said that the matter in dispute, on theproposed appeal, is any more than one-third of ten thousand rupees.
The applicant, therefore, has no right of appeal.
The next question is whether this is a case which is properly withinrule 1 (b) and, as such, one in which we ought to exercise our discretionand grant the applicant leave.
The grounds upon which we are asked to exercise our discretion arestated in paragraphs 4 (a), (b), and (c) of the petition. The gist of thoseaverments is that the judgment given in this case rules that a diga-married widower is the sole heir of his childless wife so far as immovableproperty acquired before coverture is concerned ; and that he excludesthe wife’s next of kin, whereas a different view was taken in the case ofSenevirntne v. Halangoda (supra). It is also said that a committeeappointed in recent times to report on Kandyan law and custom adoptedthe rule in this latter decision as having correctly laid down the law onthe point. The result' of this conflict, it is urged, would be to leave thelaw on this question in an unsettled and unsatisfactory state.
But there are, in our reports, conflicting decisions on several otherquestions, and if that were sufficient reason f5r granting leave, our reportswould afford precedents. But I can find none. Leave could be properlysought, and would properly be given only if the matter in dispute is ofgreat general importance, or of public importance, or is otherwise of anequally substantial character.
I do not think it can. be said that the question in this case falls withinthe condition of great general importance or of public .importance.The most that can be said in regard to it is that it concerns a questionof intestate succession arising in Kandyan law in certain circumstancesthat are more of uncommon than common occurrence. Nor, is it,otherwise, a matter of such a substantial character as would justifyus to give a leave. We ought to be careful not to attempt too lightly toadd to the onerous, duties of the^Judicial Committee, or similarly interferewith the ordinary rights of a successful litigant in a case of "this value notto be vexed any further.
■ Cur. T..K. )>. 62
The King v. Jamis Singho.
53
It seems to me that the latter part of the opinion of Lord Selbome inAllan v. Pratt (supra) applies to this branch of the question. He said “ ofcourse their Lordships will not at present go into the merits of the caseat all, and they will assume that there may be such a question and thatit may be important; but the present question is, whether this appeal,being incompetent, they ought to give, under the circumstances ofthe case, an .opportunity of asking for special leave to appeal. Nodoubt there may be cases in which the importance of the general questionof law involved may induce their Lordships to give leave to appeal,. though the value of the matter in dispute is not sufficient; but theirLordships must be governed in the exercise of that discretion by aconsideration of all the circumstances of each particular case ”. TheirLordships then went on to point out that in the case before them therespondent did not appear to be a man who could comfortably bear theexpense of such a proceeding, even if he contrived to be represented atthe hearing. The same can, I think, be fairly said of the respondentto this application. If, however, he decided not to incur the necessaryexpenditure and failed to be represented at the hearing, their Lordshipswould not have the fullest assistance in a matter that, after all, arisesunder a foreign orr at least, an unfamiliar law, and as observed by LordSelbome, such assistance their Lordships “must necessarily desire”.Moreover, if as the applicant’s Counsel stated at the Bar, cases havealready been instituted in view of the ruling given in this case, a properopportunity is likely to arise for this question to be reagitated and, ifnecessary, decided by a Full or Divisional Bench or, may be, even by thePrivy Council.
I would, for these reasons, refuse the application with costs.
Howard C.J.—I agree.
Application refused.
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