VERNON BOTEJU v. PUBLIC TRUSTEE

015-SLLR-SLLR-2001-V-2-VERNON-BOTEJU-v.-PUBLIC-TRUSTEE.pdf


VERNON BOTEJU
v.PUBLIC TRUSTEE
COURT OF APPEALWEERASURIYA, J.
UDALAGAMA JCA. 663/90
D.C. COLOMBO 4956/ZLSEPTEMBER 30, 1989NOVEMBER 30, 1999
Rei Vindicatic& Acttog. – Executor entitled to administer property – Orderfor ejectment – Is the Administrator functus officio – Delay in deliveryof Judgment – Civil Procedure Code S 187 and 540, Constitution Article138(1).«
The Plaintiff – Respondent (Public Trustee) Instituted action in the capacityas Executor of the Lastwill of the deceased one ‘B’ to recover possessionof the property, In possession of the Defendant Appellant.
The Defendant – Appellant denied that he was in unlawful occupation.District Court entered Judgment In favour of the Plaintiff – Respondent.
It was contended by the Defendant – Appellant that the Plaintiff – Respondentwas functus officio, and that there was a long delay of 33 months to deliverJudgment, and that the Plaintiff – Respondent has failed to prove thenecessary ingredients for a rei vindicatio action.
Held :
In this instance at the time of the institution of the action, the Executorhad not completed the administration of the Estate, for the reasonthat the land in question was in the possession of the Defendant -Respondent. To be functus officio he has to duly complete theadministration of the estate.
The case of the Defendant – Appellant was entirely dependent on theconstruction of documents and on the conclusion drawn from suchdocuments. There is no allegation that the Trial Judge has over lookedor misconstrued some features of the oral testimony. Therefore thereis no material to establish that delay of 33 months though reprehensiblehas occasioned a failure of justice.
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The direction in the Lastwill that Lot 11 has been bequeathed to ‘PTindicate that before his death ‘B’ had acknowledged the existence of Lot11 in lieu of his undivided rights to the said property. The admissionsshow that the Defendant – Appellant has accepted posession of theproperty allotted to th^l 6th Defendant which forms a part of the estateof ‘B’ in terms of his Lastwill admitted in T/l005/90. D. C. Colombo!
APPEAL from the Judgment of the District Court of Colombo.
Cases referred to :
Aron Fernando v. R.M. Buddhadasa 1986 Colombo Appellate LawReport – Vol. 2 page 112
Edwin v. De Silva 62 N.L.R. page 45
Saravanamuttu v. Saravanamuttu 61 N.L.R. P
Senanayake v. Edlrisinghe B.A.S.L. Law Journal 1990 Vol. Ill part
– 2 page 5c
Faiz Musthapa P. C., with Chula Bandara for Defendant – Appellant.
P. A. D. Samarasekera, P C., with Keerthi Sri Gunawardena for Plaintiff
– Respondent.
Cur. adv. vult.
May 19, 2000.
WEERASURIYA, J.The Public Trustee (hereinafter referred to as the plaintiff-respondent) by plaint dated 10.05.1985, instituted actionagainst the defendant-appellant seeking the following relief^.
a declaration that the land described in the schedule tothe plaint belong to the estate of late FVancis JosephBotejue;
a declaration that the plaintiff-respondent in his capacityas executor of the last will is entitled to theadministration of the said property;
a declaration that the defendant-appellant is not entitledto possess the property;
an order for ejectment of the defendant-appellant andall persons holding under him there-from; and
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damages.
The defendant-appellant In his answer whilst denying theallegation that he was In unlawful occryation of the propertyprayed for dismissal of the action. This case proceeded to trialon 21 issues and at the conclusion of the case, learned DistrictJudge, by his judgment dated 24.04.1990 entered judgmentfor the plaintiff-respondent. It is from the aforesaid judgmentthat this appeal has been lodged.
At the hearing of this appeal, the case of the defendant-appellant w§s presented on the following grounds.
that the learned District Judge has failed to considerthat the plaintiff-respondent was functus officio;
that grave prejudice has been caused to the defendant-appellant as the judgment has been delivered 33months after the conclusion of the case; and
that the plaintiff-respondent has failed to prove theingredients necessary for a rei vindicatio action.
The contention of learned Counsel for the defendant-appellant that the plaintiff-respondent was functus officio wasbased on the premise that the executor (plaintiff-respondent)by instrument dated 14.10.1992 conveyed this property toNeomi Perera a beneficiary named in the last will. It is significantto note that the executors conveyance has been effected in 1992two years after the delivery of the judgment and seven yearsafter the institution of the action.
The plaintiff-respondent has instituted this action in hiscapacity as executor of the last will of the deceased FrancisJoseph Botejue to recover possession of the aforesaid propertywhich was admittedly in the possession of the defendant-appellant. The plaint also disclosed that the plaintiff-respondentwas appointed as executor of the last will as authenticated by
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the issue of probate in testamentary case No. 1005/90 of theDistrict Court of Colombo.
In terms of Section 540 of the Civil Procedure Code if nolimitation is expressecfm the order making the grant, then thepower of administration, which is authenticated by the issue ofa grant of probate, or is conveyed by the issue of a grant ofadministration, extends to every portion of the deceased person’sproperty, movable and immovable, within Sri Lanka and extendsuntil the whole of the said property is administered, or thecompletion of the administration which ever occurs first.
In the case of Aron Fernando Vs. R. M. BuddhadasalI> itwas held that an administrator could be cdhsidered functusofficio not because he has rendered a final ^account nor evenbecause there has been a judicial settlement^of the estate. Thetrue criterion appears to be whether he has duly completed theadministration of the estate.
In the instant case, action has been instituted to recoverpossession of the property which was admittedly in thepossession of the defendant-appellant. It was evident that atthe time of the institution of the action, the executor has notcompleted the administration of the estate for the obvious reasonthat land described in the schedule to the plaint was in thepossession of the defendant-appellant. Therefore, the executorin the instant case had complete power and authority to instituteaction for a declaration that the property described in theschedule to the plaint belong to the estate of Francis JosephBotejue and to recover its possession and ejectment of thedefendant-appellant therefrom.
The contention of learned Counsel for the defendant-appellant that grave prejudice has been caused to him, due tothe delay of delivering the judgment 33 months after theconclusion of the case was based mainly on the premise thatfailure of the District Judge to answer issues Nos. 16-21 wascaused by fading away of his memory with time.
Issues Nos. 16, 17 and 18 relate to the maintainability ofthe action as the executor of the last will of Francis Joseph
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Botejue. However, issue No. 2 which has been answered in theaffirmative was to the effect whether the plaintiff-respondentwas the executor of the last will. Therefore, one cannot assertthat the omission to answer issues Nos. 16, 17 and 18 wouldcause prejudice inasmuch as the capacity of the plaintiff-respondent was established.
Issues Nos. 19 and 20 relate to the question of prescriptionby the defendant-appellant. Despite the omission to answerthese two issues learned District Judge on a consideration oftotality of the evidence had come to a finding that defendant-appellant’s plea of prescription cannot be sustained.
Similarly- issue No. 21 which has been formulated by theplaintiff-respondent relate to the maintainability of the claim inreconvention on^the basis of prescription and the learnedDistrict Judge has made a finding that it cannot be maintained.Answer to issue No. 13 in the affirmative appears to beinconsistent with his earlier finding that the claim inreconvention cannot be sustained. Therefore, this appears tobe a mistake and the question to be examined is whether suchmistake would invalidate the judgment.
Section 187 of the Civil Procedure Code provides that ajudgment must contain the following :-
a concise statement of the case;
the points for determination;
the decisions thereon; and
reasons for such decisions.
On a careful scrutiny of the judgment, it is apparent thatthe above requisites have been satisfied despite a failure toanswer some issues. It is noteworthy that a point fordetermination may involve several issues.
Proviso to Article 138 (1) of the Constitution provides thatno judgment, decree or order of any Court shall be reversed or
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varied on an error, defect or irregularity which has not prejudicedthe substantial rights of the parties or occasioned a failure ofjustice.
The learned Distrfdl Judge has arrived at findings on thepoints for determination upon an evaluation of the evidence ledin this case. Therefore, despite the error that has occurred inanswering issue No. 13 and his failure to answer some issues itis not open to the defendant-appellant to assert that prejudicehas been caused to his substantial rights or has occasioned afailure of justice.
I shall now proceed to examine the pivotal cpiestjon whetherdelay of 33 months (2 years and 9 months) in delivering thejudgment has caused prejudice to the defeiffrant-appellant orhas occasioned a failure of justice. Learned''Counsel cited thecase of Edwin vs. de Silva(2) where it was ovserved that delay ofnearly 2 years in delivering the judgment would cause prejudiceto the parties. It was observed that a judgment of a Judge of aCourt of First Instance based on a mere reading of the typescriptis not of the. same value as a judgment delivered while therecollection of the trial and of the demeanour and attitude ofthe witnesses and the impression created by them on him arefresh in his mind.
Further, in Saravanamuttu vs. Saravanamuttu131 it washeld that by reason of a delay of nearly one year between theconclusion of hearing and the preparation of the judgment,the Judge was bound to have lost the advantage of theimpressions created by the witnesses whom he saw and heardand his recollection of the finer points in the case would havefaded from his memory by the time he came to write hisjudgment.
However, in Senanayake vs. Edirislnghe(41 it was held thatit is not that delay perse is presumed to vitiate a judgment butto vitiate a judgment on that ground, the effect of delay must beone occasioning a failure of justice and must be demonstratedby drawing attention to relevant items of evidence which the
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Judge has misconstrued or overlooked or to features whichindicate the Judge’s recollection of the nicities of the evidenceor the demeanour of the witnesses had faded with time therebyvitiating his acceptance of oral testimony.
In the instant case, the plaintiff-respondent produceddocuments marked PI – PI2 through witness Chandrapala aclerk of the District Court of Colombo. Therefore, the case ofthe plaintiff-respondent was entirely dependent on theconstruction of documents and on the conclusions drawn fromsuch documents. In the circumstances, it would appear thatthe impressions created by the witnesses and fading away ofthe finer points o£the evidence or the demeanour of the witnessesof the plaintiff-respondent would not arise. There has been noallegation that^the District Judge has overlooked ormisconstrued some features of the oral testimony of thedefendant-appellant or his witness licensed SurveyorNanayakkara which indicate that District Judge’s recollectionof the niceties of evidence or the demeanour of the witnesseshad faded with time. Therefore, there is no material to establishthat delay of 33 months in the instant case though reprehensiblehas occasioned a failure of justice.
The contention that the plaintiff-respondent has not provedthe ingredients necessaiy for a rei vindicatio action is untenable.Francis Joseph Botejue was declared entitled to lot 11 of theland called Millagahawatta and Delgahawatta depicted in planNo. 1524 A as evidenced by the final decree in partition caseNo. 1125 marked P7. Learned Counsel for the defendant-appellant sought to argue that when the defendant-appellantwas substituted in place of the deceased 16th defendant FrancisJoseph Botejue the rights allotted to him was the entitlement ofthe heirs of Francis Joseph Botejue. It is to be observed thatdefendant-appellant was substituted in place of the deceasedas representative of the estate of the deceased 16th defendant.Therefore, it is clear that the rights that were allotted in thefinal decree were the rights which devolved on the 16thdefendant.
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Learned Counsel for the defendant-appellant submittedthat there was no land called lot 11 in existence at the time ofthe death of Joseph Francis Botejue. Despite the fact that at thetime of the death of Joseph Francis Botejue final decree has notbeen entered yet it cannot be forgotten that in the last will,Francis Joseph Botejue referred to lot 11 of the said land as theland bequeathed to Neomi Perera. The argument that there wasno land known as lot 11 has no significance as lot 11 is a dividedportion allotted to the 16th defendant in lieu of his undividedrights in the said property. The direction in the last will that lot11 has been bequeathed to Neomi Perera indicate that lot 11has been bequeathed to Neomi Perera indicate that before hisdeath Francis Joseph Botejue had acknowledged the existenceof lot 11 in lieu of his undivided rights to the said property. It issignificant to observe that final plan is dated 20.11.1970.
Defendant-appellant has conceded that he is in occupationof this land and that he has built a temporary hut. Paragraph11 and 12 of the plaint which have been admitted by thedefendant-appellant refer to the acceptance of the possessionof the land by defendant-appellant as the legal representativeof the deceased 16th defendant and thereafter erection of atemporary hut on 17.10.1983 and intimation by letter of evendate to hand over possession and to refrain from erecting a hut.Therefore, there is admission that there was an erection of atemporary hut on 17.10.1983 and the bare receipt of a letter ofeven date. Therefore, these admissions are clear proof of thefact that the defendant-appellant has accepted possession ofthe property allotted to the 16th defendant which forms a partof the estate of Francis Joseph Botejue in terms of his last willadministered in case No.T 1005/90 D.C. Colombo.
For the foregoing reasons, it seems to me that there is nobasis to interfere with the findings of the District Judge.Therefore, this appeal is dismissed with costs.
UDALAGAMA, J. I agree.
Appeal dismissed.