082-NLR-NLR-V-45-WEERAPPA-CHETTIAR-Appellant-and-RAMBUKPOTHA-KUMARIHAMY-Respondent.pdf
332
Weerappa Chettiar and Rambukpotha Kumarihamy
1944Present: Moseley S.P.J. and Wijeyewardene J.WEERAPPA CHETTIAR, Appellant, and RAJVIBUKPOTHAKUMARIHAMY, Respondent.
154—D. G. Kandy, 405.
Partition action—Framingofissues—Pointsof dispute withregardto title—
Practice, useful and necetssary.
In a partition action the dnty is cast npoa the Judge to satisfy! himselfthat the property to be partitioned does not belong to persona -whoare not parties totheaction. Withregard to thedecision on this
question the Court would consider the evidence without regard to theissues.
Apart fromthisquestion, theCourt has todecide the disputesthat
arise betweentheparties as tothe devolutionof title. Regardingthem
it is a useful practice to frame -issues so that the Court maycontrol the proceedings and the parties may know precisely the pointson which they have to lead evidence.
A PPEAD from a judgment of the District Judge of Kandy.
M.T. de S. Ameresekere, K.G. (with him A. S. Ponnambalam), forsecond defendant, appellant.
N.E. Weerasooria, K.G. (with him Cyril E. S. Perera), for firstdefendant, respondent.
A. Gnanaprakasam, for plaintiff, respondent.
Cur. adv. vult.
{1918) 22 N. L. R. 43.
WUETEWARDENE J.—Weerappa Chet liar and Mambukpotha Kumarihamy 333
June 9, 1944. Wijeyewardene J.—
This is an action for partition, and the only questions that have to beconsidered are the ■ rights of Rambukpotha Loku Kumarihamy andIieelawathie Kumarihamy to claim shares of the estate of their father,Mampitiya TiMri Banda.
It is not disputed that Mampitiya TiMri Banda, the original ownerof the lands sought to be partitioned, died intestate leaving a son,Mampitiya Dissawa, and three, daughters, Rambukpotha Laku Knman-hamy (first defendant), Anula (called Wegodapola Kumarihamy) andTlieelawathie and that all the three daughters were given in marriage bytheir brother, Mampitiya Dissawa, and their mother after the death oftheir father.
Anula, who was married to A. B. Wegodapola (see recitals in P 2)purported to mortgage an undivided half share of the estate with M. M.Fernando by P 2 of 1926. She appears to have executed this bond cmthe footing that her two sisters, the first defendant and Leelawathie.were married in diga and thereby forfeited their rights to the estate-That bond was put in suit, and the mortgaged property was sold whenthe plaintiff purchased it and obtained a Fiscal’s transfer, P 6 of 1938-Though the plaintiff claimed an undivided half share in the plaint, herestricted his claim at the trial to an undivided one-third share on theground that the first defendant had re-acquired binna rights and there-fore, Anula, his predecessor in title, could not have mortgaged more thanan undivided one-third share by P 2.
The first defendant filed answer claiming one-third share by inheritanceand one-third share by the deed of gift, 1 D 1 of 1937 executed in herfavour by her brother, Mampitiya Dissawa, who is now dead.
The 4th defendant, S. Wegodapola, intervened in the action claiminga one-third share. He stated that Mampitiya TiMri Banda’s estatedevolvedon MampitiyaDissawa, Anula and Leelawathiealoneand
not on the first defendant, as she had contracted a diga marriage anddid not re-acquire binna rights. Leelawathie married Iriyagama LokuBanda in February, 1901 (see 2 D 1) and died a few months afterwards(see 2 D 3) leaving a child Seelawathie (see 2 D 2) who died in December,1901 (see 2 D 4). Iriyagama, who thus became entitled to an undividedone-thirdshare, marriedSeedevi Kiri A mm ain February,1902,and
died in 1914 leaving him surviving his widow, Seedevi, and four childrenwho by 2 D 6 of 1940 conveyed their one-third share to the fourthdefendant.
At the commencement of the trial the main points that arose fordetermination between the parties were formulated as follows r—
Did the first defendant marry out in diga and forfeit her rights?
Did she re-acquire binna rights?
Did Leelawathie Kumarihamy re-acquire binna rights?
The District Judge held that the plaintiff was entitled to one-thirdland the first defendant to two-thirds and rejected the claim of the fourthdefendant holding that his predecessor in title, Leelawathie, had marriedin diga and failed to re-acquire binna rights. The fourth defendantseeks to canvass that finding on this appeal.
334 WIJEYEWABDENE J.—Weerwppa Chettiar and tlambutrpotha Kumarihamy
I shall deal first with the rights of Itambukpotha Loku Kumarihamy■(first defendant). She gave evidence and stated that, though she marriedout in diga, she returned after her husband’s death about forty yearsago to her Mulgedera and was “ accepted ” by her brother, MampitiyaDissawa. I see no reason for holding that the learned Judge, who is agentleman of wide experience, has erred in accepting the evidence of thislady. Her oral evidence is supported very strongly by the documentary-evidence in the case. About 1925 there was an action No. 6803 in theDistrict Court of Kegalla for the partition of some other lands belongingto the estate of Mampitiya Tikiri Banda. That action was filed byAnula (Wegodapola Kumarihamy) against Mampitiya Dissawa andItambukpotha Loku Kumarihamy. In that case Mampitiya Dissawatook up the position that Itambukpotha Doku Kumarihamy was entitledto an undivided one-third share by inheritance and final decree wasentered accordingly (see 1 D 2). Further the deed 1 D 1, is a gift byMampitiya Dissawa to his sister, Itambukpotha Kumarihamy, “ inconsideration of the devoted services and attention rendered and per-formed to me by my sister ”. I would, therefore uphold the finding of theDistrict Judge that the first defendant had re-acquired binna rights andbecome entitled to a share of her father’s estate.
The fourth defendant called two witnesses—Abeyratne Banda and-Jimmy Iriyagama—to establish his claim. That evidence is contradictedby the oral evidence of Itambukpotha Boku Kumarihamy. In assessingthe evidence with regard to the forfeiture of Leelawathie’s claims to thepaternal estate, the District Judge has referred to the fact that, whilethe fourth defendant pleaded in his answer that Beelawathie “ neverleft the Mulgedera ” after her marriage the issue framed by the fourth-defendant suggested a different plea. The issue as framed on February3, 1941, reads, “ Did the intervenient re-acquire binna rights? ” Thatissue was adopted with an amendment on February 22, 1943, and theamended issue reads “ Did Leelawathie re-acquire binna rights?
It would thus be seen that the' issue adopted by the fourth defendant.after consideration and on which he went to trial was that, thoughBeelawathie had forfeited her rights by severance from the Mulgedera,she had re-acquired these rights later. I think, therefore, there is agreat deal of force in the submission of the Counsel for the plaintiff andthe first defendant that they led only such evidence as they thought•was sufficient to meet the fourth defendant’s case on that issue. The•Counsel for the appellants contended that the case should be decided»on the pleadings and not on the issues, as, he said, it was a well-known-rule of practice not to frame issues in a partition case, though issuesJiave been framed in this action. The appellant’s Counsel has stated"this practice in too general terms. In a partition action the duty is®ast on the Judge to satisfy himself that the properties to be partitioneddo not belong to some persons who are not parties to the action. It is-with regard to the decision on this question that the Court would considerthe evidence without regard to any issues. But apart from this question,the Court has to decide on the various disputes that arise between the•parties as to the devolution of title. There is nothing improper in a Courtframing issues with regard to those points and I think it a very useful
WIJEYEWARDBNE J.—Weerappa Chettiar and Rambukpotha Kumarihamy 335
practice to have issues regarding these matters, so that the Court may beable to control the proceedings and the parties may know precisely thepoints on which they have to lead evidence.
Now the only relevant evidence led for the fourth defendant on thequestion of Leelawathie’s claim to a share of the estate being not affected!by her marriage depends on the statement of Abeyratne Banda that afterher marriage she remained in the ‘ ‘ Mulgedera ’ ’. This evidence does notprove the question raised in the issue, and the fourth defendant cannotcomplain if his claim is rejected on that ground. I do not think, however,that the learned Judge has proceeded to decide the case in that manner-.Further, I propose to examine the evidence independently of the issue-and ascertain if the evidence supports the plea in-the fourth defendant’sanswer.
Abeyratne Banda’s evidence that Leelawathie remained in the MuL-gedera after her marriage is contradicted by Rambukpotha Loku Kumari-hamy who says that Leelawathie was taken to her husband’s house aftesrher marriage and she came to the Mulgedera for her confinement. Abey-ratne Banda is a stranger to the Mampitiya family and I should haveno hesitation in acting on the opinion of the District Judge that theevidence of Rambukpotha Loku Kumarihamy should be accepted inpreference to that of Abeyratne Banda. Abeyratne Banda’s evidencecan be tested in other ways.
If Rambukpotha Loku Kumarihamy had a right to a share of her-father’s estate—and I hold it had been established in this case—then,if Leelawathie too had not lost her rights to the estate, the paternal estatewould have devolved in equal shares on Mampitiya Dissawa and the-three sisters. We find, however, that Mampitiya Dissawa, against whosebona fides no allegation has been made, has dealt with an undivided!one-third share by 1 D 1 on the footing that the estate devolved on him.and only two of his sisters. It cannot be said seriously that the sister-whom he considered as excluded from the inheritance was Rambukpotha.Loku Kumarihamy and not Leelawathie, as that would be directly-opposed to the position taken by him in D. C. Kegalla, 6,803 (1 D 2).The attitude taken by Mampitiya Dissawa in this matter is of the utmostimportance as Leelawathie could not have re-acquired binna rights;without the consent of her brother, Mampitiya Dissawa. Moreover,the failure of Seedevi Kiri Amma and her children—the vendors to the-fourth defendant—to establish a claim to a share of the lands in D. C.Kegalla, 6,803, shows that in 1925 they asquiesced in the position thatLeelawathie lost her right to a share of her father’s estate.
The evidence given by Jimmy Iriyagama with regard to the possessiort-of Leelawathie’s heirs is entirely unconvincing. If his evidence is to be-accepted, he and the other step children of Leelawathie got a share of the-paddy crop even after the sale to the plaintiff in 1940. He himself'admits that, though there were tea and rubber on some of the lands,neither he nor the other vendors to the plaintiff got any coupons. It is-not likely that, if they had possession, they would have failed to availthemselves of this valuable source of income. If the members of ther
336 VVi.JBYBWAB.DENE J.—Weerappa Chettiar and Bambukpotha Kumarihamy
Iriyagama family did not possess any share of the lands, then that is afact which militates strongly against the contention that Xeelawathiedid not forfeit her share.
Jimmy Iriyagama admitted at first that his father’s estate was ad-ministered and then, when he was asked whether any share of MampitiyaTikiri Banda’s estate was inventoried in that case, he said at first thatlie was unaware of that fact and then said that he did not even knowthat his father’s estate was administered. If Iriyagama Boku Bandaowned even an undivided one-fourth share of the valuable Mampitiyalands, then his own estate should have been administered, consideringthat at the time of his death all estates over Us. 1,000 required administra-tion.
On a consideration of all these facts I hold that Beelawathie wasconducted from the Mulgedera and that she failed to regain her binnaEights during the short period of her married life.
I would dismiss the appeal with costs.
Moseley S.P.J.—I agree.
Appeal dismissed-