SOMAWATHIE vs. WILMON AND OTHERS

008-SLLR-SLLR-2010-V-1-SOMAWATHIE-vs.-WILMON-AND-OTHERS.pdf


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SOMAWATHIE VS. WILMON AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.,
AMARATUNGA, J., ANDRATNAYAKE, J.
S.C. APPEAL NO. 2/2009
S.C. (H.C.) C.A.L.A. NO. 110/2008
H.C.C.A. NWP/HCCA/KUR NO. 16/2001 (F)
D.C. MAHO NO. 4241/PMAY 4™, 2009
New Ground Raised For The First Time In Appeal – acceptance of a deedof Gift – Mandatory? – Partition law – Section 4(1) d
The appellant instituted action in the District Court of Maho for thepartition of the land described in the schedule to the plaint. After trial,the learned District Judge by his judgment dated 22.1.2001 had declaredthat appellant was entitled to an undivided 1/3"* share of the landand had left the remaining 2/3rd share unallotted. Being aggrieved byjudgment of the District Judge, the 4th respondent had preferred anappeal to the High Court. The High Court had allowed the 4th respondent’sappeal and dismissed the appellant’s action. Being aggrievedby the decision of the High Court, the appellant appealed to theSupreme Court. The Supreme Court granted leave to appeal on thefollowing questions.
Has the High Court erred in law in misinterpreting and miscon-struing that there was no acceptance of the Deed of Gift by thedonees?
Has the High Court erred in law in failing to consider that the Deedof Gift on the face of it clearly indicates that the life interest holderhas signed in acceptance on behalf of the donee?
Was the High Court wrong in law in considering the question ofnon acceptance of the Deed of Gift since there was a failure to raiseas issue on that ground in the District Court or lead any evidenceto that effect?
The question of non-acceptance of the Deed of Gift (P2) was raisedfor the first time in appeal. The three questions on which leave to
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appeal was granted by the Supreme Court are based on the Deed of Gift
marked as P2 at the trial in the District Court.
Held
A new ground cannot be considered for the first time in appeal,if the said new ground has not been raised at the trial under theissues so framed. However, the Appellate Court could consider apoint raised for the first time in appeal if the following require-ments are fulfilled.
the question raised for the first time in appeal, is a pure questionof law and is not a mixed question of law and fact.
the question raised for the first time in appeal, is an issue putforward in the Court below, under one of the issues raised, and
the Court which hears the appeal has before it all the material thatis required to decide the question.
Held further
The essence of a Deed of Gift is to convey movable or immovableproperty as a gratuitous transfer. Therefore for the purpose ofmaking the donation complete, the gift has to be accepted.
The High Court had erred in law in misinterpreting and miscon-struing that there was no acceptance of the Deed of Gift by thedonees, when it was clearly stated in the said Deed that the giftwas accepted by the mother of the donees on behalf of the doneesand she had also signed the said Deed of Gift.
The High Court was wrong in law in considering the question ofnon-acceptance of the Deed of Gift since there was a failure toraise an issue on that ground in the District Court or to lead any
evidence to that effect.
Cases referred to:
Talagala v. Gangodawila Co-operative Stores Society Ltd., – (1947)48 NLR 472
Gunawardena v. Deraniyagala and others – S. C. (application)
No. 44/2006, S.C. Minutes of 3.6.2010.
Seetha vs. Weerakoon- 49 NLR 225
(3)
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The Tasmania (1890) A. C. 223
Appuhamy v. Nona (1912) 15 NLR 311
Manian v. Sanmugam and Arulampillai v. Thambu (1944) 45 NLR457
Nagalingam v. Thanabalasingham (1948) 50 NLR 87
Senanayake v. Dissanayake (1908) 12 NLR 1
APPEAL from the High Court of Civil Appeal (North Western Province).
Lakshman Perera with Anusha Gunaratne for Plaintiff – Respondent -Appellant
Ranjan Suwandaratne for 4th Defendant – Appellant- Respondent.
Cur.adv.vult.
June 24th, 2010
DR. SHIRANI A. BANDARANAYAKE, J.This is an appeal from the judgment of the High Courtof Civil Appeal of the North Western Province (hereinafterreferred to as the High Court) dated 21.08.2008. By thatjudgment the High Court allowed the appeal preferred by the4th defendant-appellant-respondent (hereinafter referred toas the 4th respondent) and dismissed the action filed by theplaintiff-respondent-appellant (hereinafter referred to as theappellant) on which the District Court by its decision hasallotted an undivided 1/3 share of the corpus to the appellantand left the balance undivided portion unallotted.
Being aggrieved by the judgment of the High Court, theappellant preferred an application to this Court on whichleave to appeal was granted by this Court on the followingquestions:
has the High Court erred in law in misinterpreting andmisconstruing that there was no acceptance of the Deedof Gift by the donees?;
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has the High Court erred in law in failing to consider thatthe Deed of Gift on the fact of it clearly indicates that thelife interest holder has signed in acceptance on behalf ofthe donees?;
was the High Court wrong in law in considering thequestion of non-acceptance of the Deed of Gift sincethere was a failure to raise an issue on that ground in theDistrict Court or to lead any evidence to that effect?
The facts of this appeal, as submitted by the appellant,albeit brief, are as follows:
The appellant instituted action on 06.05.1996 for thepartition of the land morefully described in the schedule tothe Plaint. The appellant, in his Plaint had set out that anundivided one-third (1/3) share of the said land, was ownedby one Maniki, who by Deed No. 4059 dated 10.01.1944,attested by one Illangaratne, Notary Public had sold the saidundivided share to one Singappuliya. The said Singappuliya,by a Deed of Gift, No. 22372, dated 04.03.1962, attested byT. G. R. de S. Abeygunasekera, Notary Public had gifted hisundivided one third-share to Peter, Martin and Laisa. The saidPeter, Martin and Laisa, by Deed No. 11560 dated 16.12.1994,attested by Mrs. C. M. Balalla, had transferred the saidundivided share to the appellant. The appellant isunaware as to the original owners of the remaining two-thirds (2/3) of the undivided share of the land. The 1st, 2ndand 3rd defendants-respondents – respondents (hereinafterreferred to as 1st, 2nd and 3rd respondents) are thepresent owners of undivided one-third (1/3) share of the landand the 5th defendant-respondent-respondent (hereinafterreferred to as the 5th respondent) is the present owner of theremaining undivided one-third (1/3) share of the land. The 4threspondent, according to the appellant, is the nephew of the
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5th respondent and has no right or title to the land, althoughhe has been cultivating a portion of the land.
Although all the respondents had been present andrepresented before the District Court, only the 4th respondenthad filed a statement of claim. In his statement of claim the4th respondent had stated, inter alia, that,
The land sought to be divided had been possessed bythe 4th respondent’s maternal grandfather, one SamaraHenaya, about 60 years ago and thereafter about 25 yearsprior to the institution of this action in the District Court,the said land had been possessed by the 4th respondentwith the said Samara Henaya;
In 1982, the 4th respondent had built the house depictedas T3’ in Plan No. 3270/96, dated 15.12.1996 made by
G. Bandutilake, Licensed Surveyor, filed of record andlived in that house with his family. Later in 1992 he hadbuilt on the said land and had been living in that housedepicted as ‘A’ in the said Plan;
The 4th respondent had acquired prescriptive title to theland in dispute as he had continuous and undisturbedpossession adversely to the rights of all others for over aperiod of 15 years.
At the trial the appellant and one of the appellant’spredecessors in title, one Peter had given evidence on behalfof the appellant. The 4th respondent had led the evidence ofthe Surveyor Bandutilake, the 5th respondent, two farmers,namely Kiriukkuwa and Rajapaksha and the Grama Niladari,viz., Hemamali Rajapaksha.
Learned District Judge, Maho, by the judgment dated22.01.2001 had declared that the appellant was entitled to an
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undivided one-third (1/3) share of the land and had left theremaining two-thirds (2/3) share unallotted. It was furtherheld that the plantations and buildings on the land shouldbe allocated among the parties as they had claimed before theSurveyor in the Report marked CY’.
Being aggrieved by the aforementioned judgment of thelearned District Judge dated 22.01.2001, the 4th respondenthad preferred an appeal to the High Court. The High Courtby its judgment dated 21.08.2008, had held that thepredecessors in title of the appellant could not be held to havederived title by the said Deed of Gift. Accordingly the HighCourt had allowed the 4th respondent’s appeal and dismissedthe appellant’s action.
Being aggrieved by the said judgment of the High Courtdated 21.08.2008 the appellant preferred an applicationbefore the Supreme Court.
Having stated the facts of the appeal, let me now turn toconsider the questions on which leave to appeal was grantedby this Court.
The High Court after considering the provisions con-tained in section 4(l)d of the Partition Law, No. 21 of 1977,had held that the appellant had sufficiently pleaded the pedi-gree in compliance with the provisions of section 4(1 )d of thePartition Law. However, on the question of whether theappellant had proved the pedigree pleaded by her incompliance with the law, the High Court had held that theDeed of Gift marked as P2 had not been accepted by thedonees on the face of it, but has only been signed by thedonor and the holder of the life interest and that theappellant had not sought to adduce any evidence to establishacceptance by the donees.
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The three (3) questions on which leave to appeal wasgranted, referred to above, are all based on the Deed of Giftmarked as P2 and since the 3rd question states that therewere no issues raised in the District Court on the basis of thenon-acceptance of the Deed of Gift, let me first consider thatquestion before proceeding to consider the questions No. 1and 2.
Was the High Court of Civil Appeal wrong in lawin considering the question of non-acceptance ofthe Deed of Gift since there was a failure to raisean issue on that ground in the District Court, orto lead any evidence to that effect?
At the outset of the trial, one admission had beenrecorded and 14 issues were raised by the appellant andthe 4th respondent, which were accepted by Court. It is to benoted that there was no issue raised at the trial as to whetherthe Deed of Gift P2 was invalid for want of acceptance.Accordingly, no evidence was led regarding the acceptance ornon-acceptance of the Deed of Gift marked as P2. A carefulperusal of the proceedings before the District Court clearlyreveals the fact that there was no opportunity at the trial tohave led evidence on the question of non-acceptance, sincethere was no such issue raised by either party.
In the light of the above, it is quite evident that thequestion of non-acceptance of the Deed of Gift (P2) was raisedfor the first time in appeal.
The question of examining a new ground for the firsttime in appeal was considered in several decided cases. Inconsidering this question, Dias, J., in Talagala v. GangodawilaCo-operative Stores Society Ltd.,'1' had clearly stated that as ageneral rule it is not open to a party to put forward for the
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first time in appeal a new ground unless it might have beenput forward in the trial Court under one of the issues framedand the Court hearing the appeal has before it all the requi-site material for deciding the question.
The question as to whether a matter that has not beenraised as an issue at the trial could be considered in appealwas examined in detail in Gunawardena v. Deraniyagala andothersP* where attention was paid to several decided cases(Setha v. Weerakoon131, The Tasmania(4>, Appuhamy v. Nonal5),Manian v Sanmugam and Arulampillai v. Thambu ,6)).
After a careful examination of the aforementioneddecisions, it was clearly decided in Gunawardena v.Deraniyagala and others (supra), that according to ourprocedure a new ground cannot be considered for the firsttime in appeal, if the said point has not been raised at thetrial under the issues so framed. Accordingly the Appel-late Court could consider a point raised for the first time inappeal, if the following requirements are fulfilled.
The question raised for the first time in appeal, is apure question of law and is not a mixed question of lawand fact;
The question raised for the first time in appeal is anissue put forward in the Court below under one of theissues raised; and
The Court which hears the appeal has before itall the material that is required to decide the question.
It was not disputed that no issue was raised on thenon-acceptance of the Deed of Gift. It is also to be noted thatthe respondent had not contested the validity of the Deed ofGift as to whether there was acceptance by the donees, at
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the time of the trial in the District Court. Since no such issuewas raised, the District Court had not considered the saidnon-acceptance of the Deed of Gift and therefore there wasno material before the High Court on the said issue. In thecircumstances, the High Court was in error when it consideredthe question of non-acceptance of the Deed of Gift, which wasat most a question of mixed law and fact.
Questions No. 2 and 3 both deal with the issue of thenon-consideration by the High Court the acceptance ofthe Deed of Gift by the donees. Accordingly, both the saidquestions, listed below, could be considered together.
Has the High Court erred in law in misinterpretingand misconstruing that there was no acceptance ofthe Deed of Gift by the donees?
Has the High Court erred in law in failing to considerthat the Deed of Gift on the face of it clearly indicatesthat the life interest holder had signed in acceptanceon behalf of the donees?
The Deed of Gift in issue is that Deed No. 22372 marked P2,dated 04.03.1962 attested by T.G.R. de S. Abeyagunasekera,Notary Public.
By that Deed as stated earlier, Singappuliya had giftedhis undivided one-third (1/3) share to Peter, Martin andLaisa. The said gift was subject to the life interest of the donorand his wife, Muthuridee, the mother of the three donees.
Learned Counsel for the 4th respondent strenuouslycontended that by the said Deed of Gift, the donor had conveyedthe life interest of the said property to the said Muthuridee.Accordingly learned Counsel for the 4th respondent contendedthat the said Deed of Gift has to be accepted formally by the
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said Muthuridee, and it was necessary for her to have signedthe said Deed of Gift in order to accept the life interest, whichwas gifted to her by the donor. Further it was submitted thatthe said Muthiridee had been acting in dual capacity as shehad to accept the Deed of Gift on behalf of her three childrenin addition to accepting it on her own behalf and accordinglyit was necessary for her to have signed twice indicating theacceptance on behalf of her children and on her own behalf.Since, the said Muthuridee had only signed once on the Deedof Gift, learned Counsel for the 4th respondent contended thatthe said gift had not been accepted by the donees.
Learned Counsel for the 4th respondent further con-tended that the learned High Court Judges had consideredthe question as to the acceptance of the Deed of Gift by thedonees and had come to the conclusion that the said Deedof Gift had not been accepted by the donees, as only thedonor and the holder of the life interest had signed it. TheHigh Court had been of the view that a donation is notcomplete unless it is accepted by the donees and that theappellant had not sought to adduce any evidence to establishthat the gift in question was accepted by the donees.
The essence of a Deed of Gift is to convey movable orimmovable property as a gratuitous transfer. The intentionof the donor is to convey the movable or immovable propertyto the donee. Therefore for the purpose of making thedonation complete, the gift has to be accepted. Consideringthe question of the validity of a Deed of Gift, Canekaratne, J.,in Nagalingam v Thanabalasingham<7) stated thus:
“The donor may deliver the thing, e.g., a ring or give thedonee the means of immediately appropriating it, e. g.,delivery of the deed, or place him in actual possession of theproperty.”
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Regarding the question of acceptance, it is thusapparent that such acceptance could take different forms. InSenanayake v DissanayakeP>, Hutchinson, C. J., consid-ered the question of acceptance of a Deed of Gift and hadheld that it is not essential that the acceptance of a Deedof Gift should appear on the face of it, but that suchacceptance may be inferred from circumstances. In arrivingat the said conclusion, Hutchison, C. J., had stated that,
“The deed does not state that the gift was accepted; butthat is not essential. It is an inevitable inference from thefacts which are above stated that Kachchi was in posses-sion, with the consent of the grantor, at the date of the saleof her interest; and thereafter the purchaser of her interestpossessed it during the rest of her life. It is the naturalconclusion from the evidence that Ukku Menika, with theconsent of the grantor, accepted the gift for herself andher children, (emphasis added)”
Canekaratne, J., in Nagalingam v Thanabalasingham(supra) had also considered the question of acceptance ofa Deed of Gift. On a careful consideration of the facts andcircumstances of that appeal, Canekeratne, J. had clearlystated that,
“There is a natural presumption that the gift wasaccepted. Every instinct of human nature is in favour ofthat presumption. It is in every case a question of factwhether or not there are sufficient indications of theacceptance of gift” (emphasis added).
It is not disputed that in the present appeal, the motherof the three donees, had accepted the said Deed of Gift onbehalf of the donees. It is specifically stated in Deed No. 22372(P2) that,
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It is therefore evident that sifter the execution of the Deedof Gift the donees had possessed and had enjoyed the landin question.
Considering the totality of the circumstances in thisappeal, it is abundantly clear that at the time of the executionof the Deed of Gift, it was clearly stated in the said Deedthat the gift was accepted by the mother of the donees onbehalf of the donees and she had also signed the said Deedof Gift. Moreover, the donees had possessed and had enjoyedthe land in question for more than 30 years. Considering thedicta enumerated in Senanayake v Dissanayake (supra) andNagalingam v Thanabalasirtgham (supra) the aforementionedfacts clearly show that they are sufficient indications that thedonees had accepted the Deed of Gift.

The said Muthuridee had signed the Deed of Gift No.22372 dated 04.03.1962.
Furthermore, the donees had been in'possession of theland in question for a period of over 30 years. The evidence ofPeter, one of the donees, clearly clarified this position.

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For the reasons aforesaid the questions on which leave toappeal was granted by this Court are answered as follows:
yes, the High Court had erred in law in misinterpretingand misconstruing that there was no acceptance of theDeed of Gift by the donees;
yes, the High Court had erred in law in failing to considerthat the Deed of Gift on the fact of it clearly indicated thatthe life interest holder had signed in acceptance on behalfof the donees;
yes, the High Court was wrong in law in consideringthe question of non-acceptance of the Deed of Gift sincethere was a failure to raise an issue on that ground in theDistrict Court or to lead any evidence to that effect.
The judgment of the High Court dated 21.08.2008 is setaside and the judgment of the District Court dated 22.01.2001is affirmed. This appeal is accordingly allowed.
I make no order as to costs.
AMARATUNGA, J. – I agree.
RATNAYAKE, J. – I agree.
Appeal allowed.