012-SLLR-SLLR-2009-V-1-WIMALAWATHIE-vs-HEMAWATHIE-AND-OHTERS.pdf
Wimalawathie vs. Hemawathie and others
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CA
WIMALAWATHIE
vsHEMAWATHIE AND OTHERS
COURT OF APPEALABDUL SALAM. JCA 825A-825B/2001 (F)DC COLOMBO 14522 PSEPTEMBER 24, 2007
Partition Act No. 16 of 1951 – Law No. 44 of 1973 – Partition Law No. 21of 1977 – Section 68 – Proof of documents – Evidence Ordinance of 1895Section 68 compared – Earlier law giving place to a later – law lexposterior derogate priori – 16ges posteriors priores contrarias abrogant -non-est novum ut priores leges and posteriors.
In the partition action instituted by the plaintiff appellant to partitionthe corpus, the trial judge rejected the deeds of the plaintiff as the plain-tiff could not prove the execution of the said deeds. The said deeds weremarked subject to proof but not proved.
In appeal it was contended that calling for proof of documents producedby the plaintiff appellant contravenes Section 68 of the Partition Law.
Held:
(1) The finding in relation to the want of proof of the documentsproduced by the plaintiff and the 10th defendant blatantlycontravenes Section 68 of the Partition Law, which provides thatit shall not be necessary in any proceedings under that law toadduce formal proof of the execution of any deed which on the faceof it, purports to have been duly executed unless the genuinenessof that deed is impeached by a party claiming adversely to theparty producing that deed or unless the Court requires suchproof. 3
(3) The execution of documents required by law to be attested shouldbe proved by calling at least one subscribing witness – Section 68Evidence Ordinance which was enacted in 1895. This precedes
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the Partition Act 16 of 1951, Law 44 of 1973 and Partition Law, 21of 1977, thus later laws repeal earlier laws in-consistent – therewith and earlier act must give place to a later, if the two cannot bereconciled.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:-
Sri Lanka Ports Authority vs. Jugottnga – 1981 – 1 Sri LR 18
Cooper vs. Wilson – 1937 – 2 KOB 300
L. W. Wettasinghe with Kapila Jayasekera for plaintiff-appellant
Rohan Sahabandu for 10th defendant-respondent
cur.adv.vult
May 05, 2009ABDUL SALAM, J.
The question that arises for determination in this appealinvolves an important aspect of the law relating to the modeof proof of deeds, in a partition action. Understandably, thereare no precedents on a similar legal question originatingeither from this Court or any other courts of superiorjurisdiction. It is therefore necessary, to set out in detail thecircumstances that had led up to the present appeal and thelaw that is applicable.
The plaintiff-appellant (Plaintiff) filed a partition suitagainst the 1st to 10th defendant-respondents (hereinaftercollectively referred to as the “defendants” or individually as1 to 10 defendants as the case may be) to partition a landalleged to be owned in common. Some of the defendantsdenied the devolution of title set out by the plaintiff, but putforward a chain of title, which materially deferred from that ofthe title pleaded by the plaintiff. The plaintiff and the 1st to 9thdefendants are siblings and cousins and the 10th defendant isthe mother of the 1st, 2nd, 6,h ,7th, 8th and 9th defendants. Themain question that arose for determination was whether the
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subject matter of the action should be partitioned as per thepedigree set out in the plaint or in the statement of claim ofthe contesting defendants.
At the trial the plaintiff gave evidence in support of hercase and produced 7 deeds marked as PI to P7 in order to es-tablish her title and led the evidence of the Notary Public whoattested the documents marked as P3 and P6. Remarkablyfive of these deeds were originals and the rest were certifiedcopies. PI has been executed as far back as in 1913, P2 in1943, P3 in 1971, P4 in 1952, P5 & P6 in 1971 and P7 in1956. The partition action has been instituted on 3rd July1986. The deeds produced by the plaintiff were 23 to 81 yearsold as at the time when they were produced in court in theyear 1994.
None of the defendants chose to impeach the genuinenessof the deeds produced at the trial marked as PI to P7, eventhough they denied in their statement of claim, the devolutionof title set out by the plaintiff. However, when PI and P3 toP7 were sought to be produced in evidence, the 1st and 5th to8th defendants insisted on the proof of the same. The learneddistrict Judge thereupon allowed the documents to beproduced subject to proof. As referred to above, the plaintiffcalled evidence only in proof of the execution of P3 and failedto call the notary or the subscribing witnesses to PI, P3 toP7. At the end of the plaintiffs case, the defendants whoinsisted on proof of the said deeds, pointed out to court thatthey have not been proved and the learned district Judgeaccordingly made a note to that effect. Thereafter based on thejudgment in Sri Lanka Ports Authority vs Jugolinija111 learnedDistrict Judge rejected the said deeds and held that theplaintiffs prescriptive possession should also fall as she couldnot prove the execution of the said deeds.
The learned counsel of the plaintiff has submitted that theerror of law in rejecting the deeds of the plaintiff is contrary
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to the provision of section 68 of the Partition Law and hascompletely dominated the learned district Judges thinkingin arriving at his conclusion, as it stands repeated at sevenplaces in the judgment, to wit; at pages 387, 392,394,395,396and 402 of the brief.
Furthermore the 10th defendant who was the mother ofsome of the parties who claimed life interest to house No414 ( her matrimonial home) on deed 10 D 1 (P5) that vestedtitle on the plaintiff, had marked the said deed and 8 otherdocuments. Even assuming that the burden cast formally toprove deeds in a partition action cannot be faulted, yet thelearned district Judge had totally misdirected himself whenhe had not considered the evidence of the only survivingsubscribing witness to the said deed Somadasa (page 258)whose uncontested testimony was with regard to the dueexecution of the said deed. This evidence was completelyignored by the learned District Judge who proceeded toarbitrarily dismiss the 10th defendants claim contrary tohis bwn misinterpretation of the law. Moreover, the learneddistrict Judge has failed to appreciate that none of thedocuments produced by the 10th defendant had beenobjected to by the contesting defendants.
The aforesaid finding of the learned judge in relation tothe want of proof of the documents provided by the plaintiffand the 10th defendant, blatantly contravenes section 68of the Partition Law which provides that it shall not benecessary in any proceedings under that law to adduceformal proof of the execution of any deed which, on the face of it,purports to have been duly executed, unless the genuinenessof that deed is impeached by a party claiming adversely tothe party producing that deed, or unless the court requiressuch proof.
Noticeably the only deed that had been so challenged wasP3. Even in respect of P3, evidence in rebuttal had been led
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through the 10th defendant. This aspect of the case has alsonot been properly considered by the trial judge.
The execution of documents, required by law to beattested should be proved by calling at least one subscribingwitness is contained in section 68 of the Evidence Ordinancethat was enacted in 1895. This precedes the Partition ActNo. 16 of 1951, Law No 44 of 1973 and Partition Law 21 of1977. In this connection it is appropriate to refer briefly tothe maxims Lex Posterior derogat priori and Leges posteriorspriores contrarias abrogant which respectively mean thatlater laws repeal earlier laws inconsistent therewith andearlier Act must give place to a later, if the two cannot bereconciled. The maxim non est novum ut priores leges, andposterios also would be applicable in this context,(see Cooper Vs Wilson)(2)
The learned counsel of the contesting defendants hascontended that even if the genuineness of a deed had notbeen impeached in the statement of claim, yet the learneddistrict Judge is entitled to insist on the proof of a deed ashe is vested with the discretion to do so under section 68 ofthe Partition Act. Even though the contention of the learnedcounsel on this matter is not incorrect, a careful scrutinyof the entire proceedings clearly points to the fact that thelearned District Judge had in reality not insisted on the proofof the deeds produced by the plaintiff on his own volition, inthe exercise of the discretion vested in him under section 68,but merely as a matter of routine allowed the documents tobe marked subject to proof, upon being insisted to that effectby the contesting defendants, without considering the appli-cable law.
As such it would be seen that the learned judge hasmanifestly failed in his fundamental duty to properly
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investigate title which had resulted in a grave miscarriageof justice. Hence, the impugned judgment and interlocutorydecree should necessarily be set aside on this ground aloneand accordingly I set aside the same. The learned districtJudge is directed to investigate title once again.
I make no order as to costs.
Appeal allowed ■
Trial de Novo Ordered