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4. Application for delivery of possession by purchaser at Fiscal's sale after he had transferred the property to a third party-Resistance to Fiscal's officer-Penal Code, ss. 183 and 186-Order ultra vires-Civil Procedure Code, 8. 287


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Mistaken view on the part of the Fiscal's officer as to the
identity of the property seized-Is sale invalid-Inherent
powers of the Court in respect of a party who obstructs the
execution of its own orders-Civil Procedure Code, ss. 237
and 325

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50, 56, 361

1. Forest Ordinance, 1909-Land at the disposal of the Crown -Land in possession of accused -Investigation of title by Crown-Claim rejected-Purchase by accused-Payment by instalments-Only one instalment paid-Cutting of trees by accused-Charge under the Forest Ordinance.


The accused was in possession of a piece of land for several years, and planted it with coconut, jak, &c. The Government Agent investigated the title to this land and rejected the claim of the accused, and accused bought it from the Crown on terms that he should pay for it by instalments. He paid only one instalment, and did not pay the others. Accused was charged under the Forest Ordinance for cutting down some trees.

Held, in the circumstances, the charge under the Forest
Ordinance was wrong. "He (counsel for the Crown) urges
that the accused has admitted the Crown's title by becoming
the purchaser, and that as he has not completed the payment
of his instalments, the land is still Crown land. Being Crown
land it is land at the disposal of the Crown, and consequently
forest. I need only say that this is not the kind of case in
which the Forest Ordinance was intended to apply. The
word forest' must be read in connection with the title to
the Ordinance and its general object."

341, Police Court, Panadure, 74,526

Trees cut from road reservation-Sale by Public Works
Department-Is permit of Forest Officer necessary for
removal? Action against Forest Officer for damages for
seizure and detention-Forest Ordinance, 1907, s. 24.

Some trees standing on a road reservation were cut by the
District Engineer and sold to the plaintiff, who removed
the same without the permission of the Forest Officer,
though with the implied permission of the District Engineer
and in good faith. The Forest Officer seized and detained
the timber and cart and bulls. Plaintiff brought an action
for damages.

Held, that the removal without a permit of the Forest
Officer was illegal, and that no action for damages lay
against him.

FERNANDO v. SAMARAWICKREMA, 285, Court of Requests,
Dandagamuwa, 4,683



3. Ordinance No. 12 of 1840, s. 6-Forest, waste, and chenas -Presumption under section 6 refers to the state of the land at the date of the encroachment-Waste Lands Ordinance-Prescription




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97, 108, 444

Fraudulent alienation

Alienation in fraud of creditors-Action by purchaser from judgment-debtor against purchaser at Fiscal's sale-Can purchaser at Fiscal's sale set up the defence that transfer in favour of plaintiff was tainted with fraud?-Transfer of all debtor's property on three successive days-Did debtor make himself insolvent before the last transfer ?-Bond given by debtor and surety-Alienation by principal debtor -Is creditor defrauded?

A as principal debtor and B as surety granted a bond in favour of C. A did not mortgage any property, but B mortgaged some property of his own. On a decree obtained on the bond, a property was seized as the property of A, and was purchased by defendant at the sale in execution. Before the sale, A transferred all his property by three deeds executed on three successive days; the property purchased by defendant at the execution sale was transferred on the second day to the plaintiff. Plaintiff instituted an action for declaration of title to the property against defendant.

89, 203, 237

Held, that it was open to the defendant to show that the deed in favour of plaintiff was executed in fraud of creditors.

Plaintiff contended that as the deed in his favour was the second of the series of three deeds, A had not made himself insolvent by executing the deed.

Held, that the three deeds must be taken to be one and the same act of alienation "To hold that before the execution of the last of the three deeds A was not insolvent, as he had some property left, would be to give effect to a mere subterfuge."

It was contended that A in alienating his property in favour of the plaintiff could be said to have intended to defraud the surety and not the creditor.

Held, that as the principal debtor's property was first liable, the creditor was intended to be defrauded by the alienation, especially as it was not shown that the property mortgaged by the surety would have been sufficient to pay the debt in full.


HANIFFA v. MOHAMADO, 336, District Court, Matara,

Transfer of property to defraud creditors-Action by heir of transferor against transferree to recover same-Trust







Game Protection Ordinance

1. Game Protection Ordinance, No. 1 of 1909-Killing game trespassing on cultivated land in night-Information to headmen.


Section 13 of Ordinance No. 1 of 1909 must be read along
with section 10; and consequently when animals specmed
in section 10) trespassing upon cultivated lands are killed,
information should be given forthwith to the nearest head-
man, even when they are killed in the night.

Court, Hambantota, 5,301

Game Protection Ordinance, No. 1 of 1909-Possession
of flesh of indigenous deer.

Provisions of section 19 of Ordinance No. 1 of 1909 apply
to animals not indigenous to Ceylon. The possession
during the close season of the flesh of indigenous deer is not
an offence under section 19.


POLICE SERGEANT v. MUTTIAH, 580, Police Court,
Anuradhapura, 1,746


Habitual offenders




Housing and Town Improvement Ordinance


Husband and wife




Husband and wife-Mortgage of immovable property by
wife without the written consent of husband-Subsequent
ratification by deed-Does ratification render mortgage valid?
-Money bond.

A mortgage of immovable property by a wife without
the written consent of her husband cannot be regularized by
subsquent ratification by the husband. But the ratification
renders the bond valid and effectual as an ordinary money

VALLIAMMA v. LowE et al., 439, District Court, Chilaw,







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Alimony-Application by wife for enhancement-Civil
Procedure Code, s. 6 5.

There is no provision for the enhancement of alimony
on the application of a wife.

RANASINGHE v. PERERA, 84, District Court, Colombo,

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Action against married woman living in separation from her
husband without joining her husband-Contract by a
married woman living in separation


4. Kandyan woman marrying a Low-country Sinhalese— Matrimonial rights of the parties



Illegal gratification





1. Action by lessor against heirs of lessee for recovery of possession-Decree for delivery of possession--Subsequent action for compensation for improvements-Jus retentionis.

The loss of the jus retentionis by a person who had effected improvements on landed property does not bar his right to compensation.

FERNANDO v. WICKREMESINGHE et al., 49, District
Court (Inty.), Ratnapura, 3,681

2. Compensation for improvements-Bona fide and malâ fide possession discussed-Development of Roman law principles to suit our civilization.

The Government Agent took steps to acquire a swamp under the Land Acquisition Ordinance, but suspended it. On the outbreak of plague he entered into possession under the Plague Regulations, and, in anticipation of the conclusion of the acquisition proceedings, improved the land by filling it and draining it with drains which extended out of the land. No formal order of possession was obtained under the Land Acquisition Ordinance.

At this stage the scheme was modified, and the old proceedings under the Land Acquisition Ordinance were abandoned, and proceedings started afresh.

The claimants contended that the land should be valued on the condition of the land at the date of the award, and the Government Agent, on the other hand, claimed compensation for improvements effected by him.

Held, that the Government Agent was not a malá fide possessor when he effected the improvements, and was entitled to compensation.

A person who takes possession of land and executes improvements thereon on expectation of a formal title, which in good faith he believes himself certain to obtain, may be a bona fidei possessor.

Marthelis Appu v. Jayawardene followed.

Held, further, that the costs of the drains which extended out of the land should be taken into consideration in assessing the value of the improvements.

Malâ fide and bona fide possession discussed.

BERTRAM C.J.-We are, I think, entitled to develop the legal principles handed down to us in connection with new situations which arise in our own civilization. The tests which were taken, as determining tests under the Roman law, are not always justly applicable as determining tests in the various combinations of fact, which, from time to time, present themselves in modern life. The principle involved was originally an equitable principle, and it is more in accordance with the spirit of that principle that we should







administer it equitably, rather than upon strictly rigorous
lines. But, I think, it must be recognized that it is a

LETCHIMAN CHETTY et al., 44, District Court (Inty.),
Kandy, 298

Inherent power of Court


1. May opposing-creditor call insolvent as witness to prove his charges at the certificate meeting ?—Power of Supreme Court to set aside a certificate—Insolvency Ordinance, ss. 89 and 129.

At the certificate meeting the creditor opposing the allowance of a certificate cannot call the insolvent into the box to examine him to prove his charges against the insolvent.

In re the Insolvency of NADARAJAH, 113, District
Court, Colombo, 2,979

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2. Principal and agent-Goods delivered to another for sale outside Ceylon-Consignment of goods to foreign buyersUndisclosed principal-Insolvency of agent-Action by assignee against principal for short falls-Election by foreign b yer to proceed against agent or undisclosed principal -Right of principal to ask for indemnity before paying assignee in insolvency ..






3. Appeals-Insolvency proceedings-Security for costsCivil Procedure Code, s. 756



Insurance-C.i.f. contract-Indent for goods from EnglandNo separate policy of insurance—Arrival of goods-Tender of goods, but no policy of insurance-1s defendant bound to accept goods?


1. Property gifted by parents to child subject to the life interest of both-Death of mother-Is father entitled to life interest over the entire property?

2. Interpretation Ordinance, section 10


It is a matter within the discretion of the Judge whether he will allow fresh issues to be formulated after the case has commenced, but he should do so when such a course appears to be in the interests of justice; and it is not a valid objection to such a course being taken that they do not arise on the pleadings


In default of payment of costs of the day






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