IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA. All of 372/2, Kandy Road,

Transcription

1 .. N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA. 1 Malame Janth Mahakumara 2Chamela Prasadn Vandabona 3Akla Sushan Vandabona All o 372/2, Kandy Road, Kurunegala C.A.No.825/97 (F) Substtuted-Deendant-Appellant D.C.Kurunegala No.4099/L. Vs. 1.Gonagala Wthanage Roshana Ajth 2.Gongala Wthanage Sanjeewa Vthana 3. Gongala Wthanage Nrosha Vthana All o Gamagewatta, Gonagalpura Bentota. Plant-Respondents. 1 )

2 Beore M.M.A.gaoor,J. & S.Devka de L.Theekoon,J. Counsel Vdura Gunarathne or the Substtuted- Deendant- Appellant. S.N.Wthsngh or the Plant-Respondent. Argued on Decded on M.M.A.Gaoor,J. Ths s an appeal aganst the order o the Learned Addtonal Dstrct Judge dated Ths case s beng a re-vndcaton acton. The plant- Respondents are enttled to the property moreullly descrbed n the schedule Number 1 o the Plant by vrtue o a deed o gt bearng No.5739 dated and by vrtue o deed o transer bearng No.1 56 dated The sad deed o gt was subject to the le nterest o Gunawath who has leased out the property to the 1 st Deendant by deed bearng No.426 dated Ater the demse o the sad Gunawath on the lease has come to end. n the aoresad 2

3 ,. crcumstances the plant -respondents prayed or a declaraton o ttle and ejectment o the deendant as well as damages. The Counsel or the Respondents respectully submtted that the appellant prayed or n hs plant or an enttlement o the property n sut and once the ttle s proved the burden shts to appellant to establsh that he s possessng the property on hs own or any rghts. n ths case the appellant aled to prove hs rghts to possess the sad property on a rght accrued to hm ater the death o le nterest holder and the lessor and he urther submtted the ttle o the respondents and thereater appellant s stopped rom dsputng ttle o respondent. n vew o the Secton 116 o the Evdence Ordnance, the learned Dstrct Judge correctly held n hs judgment that the lease agreement has come to an end ater the death o le nterest holder.!!, Accordng to the case o Yapa Vs. Dssanayake Sedara 1981 SLR 361, t s not essental that acceptance o donaton on a deed o Gt should appear on the ace o the nstrument. Such acceptance may be nerred one n crcumstances. Where, J [ there s no acceptance on the act o the deed and there was no evdence o delvery o the deed nor o possesson o the property acceptance cannot be nerred. 3 {, t ~,!!

4 n the case o the Counsel or the Plant- Respondent submtted that the appellant dd not rase any ssues n relaton to the mnorty o the respondent but rased an ssue, ssue No 12 whether the deed Number 5739 s null and vod and nvald. And the 1 st respondent n relaton to hs age and t was revealed that at the tme o executon o the deed, the 1 st respondent has reached the age o seventeen. Thus there s a vald acceptance. Acceptaton could be eected by other means as well. n the case o Sr Lanka Ports Authorty and another V.Jugolnja -Boa East 1981 (1) SLR 18 n whch t was decreed that; " no objecton s taken, when at the close o a case document are read n evdence, they are evdence or all purposes o the Law. Ths s the curses curae o the,! orgnal Cvl Courts." Smlarly n the recent case o Samarakoon V. Gunasekera and another 2011 (1) SLR 149 n whch Amaratunga J. held nter ala that: " When a document s admtted subject to proo, the party tenderng t n evdence s oblged to ormally prove t by callng the evdence necessary to prove the document, accordng to law. such evdence s not called and no objecton s taken to the document t s read n evdence at the tme o closng the case o the party who tendered the document t becomes evdence n the case. 4

5 On the other hand the document s objected to at the tme when t s read n evdence beore closng the case o the party who tendered the document n evdence, the document cannot be used as evdence or the party tenderng t. Consderng above ndngs t s clear there s no objecton was made by deendant-appellant regardng the acceptance o the deed o gt by the respondent. And also, n the case o Yapa Vs. Dssanayake Sedara SLR 361. t s not essental that acceptance o donaton on a deed o gt should appear on the ace o the nstrument. Such acceptance may be nerred one n crcumstances. Where there s no acceptance on the ace o the deed and there was no evdence o delvery o the deed nor o possesson o the property acceptance cannot be nerred. The poston o the appellant s that the appellants were mnor at the tme the gt were made and thereore they could not have accepted the deed o gt. l t \ t n eect the appellants are challengng the ttle o the Respondents. n the case o Srwardena V. Wramanathan SLR page No.228 t was held by lordshp Justce Weerasurya that: s

6 . 1. The plant respondent was 12 years o age at the tme o the executon o the deed o gt, the Notary n attestaton clause made explct reerence to the act that he had duly read over and explaned 2. The proposton that acceptance by a mnor, does not contrbute vald acceptance cannot aect, the valdty o deed o Gt. t s competent or a mnor to accept a donaton n hs avour nasmusch as he s benetted thereby. n Coudert Vs. Don Elas 17 NLR 134 t was held when the property gted was already n the possesson o the respondent and who would not allow the plant to take possesson o t. How were the plant to accept the gt except by means ay an attempt to take possesson o the property? Ths acton s such an attempt and am nclned to agree wth the respondent's Counsel that n the crcumstances o ths case an acton to gan possesson o the property donated would be tantamount to a manestaton o the acceptance by the donee o the Gt. n these crcumstances o ths case the 1 st appellant was stayng n the property untl 1982 and the le nterest o the property was n the name o Gunawath and when Gunawath had passed away, the respondent led ths case to take possesson o the property n ther control whch was tantamount o a manestaton o acceptance by the Respondents. r ~ ( ( J 6 ~

7 ,. " ~ The learned Dstrct Judge summarzed that at the page 214 and had come to the concluson that ater the deed o Gt bearng No.5739 has been regstered and t was handed over to the respondent's ather thereore respondents are enttled to the property descrbed n the schedule o the plant. n these crcumstances, am o the vew that the learned Dstrct Judge has very careully and correctly arrved hs determnaton wth correct perspectve and analysed the entre verbal and documentary evdence place beore hm to come hs concluson. Thereore the appeal s dsmssed wth cost xed at Rs. 25,0001=. JUDGE OF THE COURT OF APPEAL S.Devka de L.Tennekoon,J. agree. JUDGE OF THE COURT OF APPEAL \ 7 l t