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1. No averment in plaint disclosing jurisdiction of CourtPlaint accepted by oversight--Mistake pointed out by defendant-Return of plaint for amendment-Rejection of plaint. Where the plaint did not allege anything on the face of it which gave it jurisdiction, and the Court by an oversight omitted to notice the defect and accepted the plaint, and where the attention of the Court is called to the point by the defendant


2. Jurisdiction-Courts of Requests-Inquiry under section 327, Civil Procedure Code-Value of land over Rs. 300Scope of inquiry.


Held, that the Court ought either to reject the plaint, or to
return it to the plaintiff for amendment.

AVVA UMMAH v. CASINADER, 78, District Court,
Batticaloa, 5,253


The appellant made complaint by petition that the respondents had resisted the execution of a decree of the Court of Requests, directing that F be ejected from certain premises and the appellant be placed in possession. The respondents stated that they were in possession of the premises on their own account, and not under the judgment-debtor (F). premises were over Rs. 300 in value.


Held, that the Court of Requests had no jurisdiction to investigate the claim under section 327 of the Civil Procedure Code.

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Section 327 has not by its provisions vested Courts of Requests with a higher jurisdiction than that conferred on them by the Courts Ordinance.

It is not the question of ownership, but of possession which should be the subject-matter of the investigation under section 327. Actual or physical possession as well as constructive possession, such as a possession through a tenant, come within the scope of the inqury; not only the fact of possession, but also the title of possession are within the scope of the sections.

FERNANDO v. FERNANDO, 74, Court of Requests,
Colombo, 83,340

3. Arbitrator's fee-District Judge fixing the amount of the fee and directing each party to pay an equal share after decree— Jurisdiction



Sale of land—Omission of a block by mistake—Inclusion of
block by mistake in sale of adjoining land to another—
Action in ejectment—Claim in reconvention for rectification
of deed and cancellation of deed in favour of plaintiff-
Joinder of vendor-Jurisdiction

Jus retentionis

Kandyan law

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Kandyan law-Re-acquisition of binna
married in diga-Property sold by

False information to public servant-Penal Code, ss. 180 and
208-Higher offence disclosed in complaint-Proceedings
taken for lower offence

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rights by woman

other heirs before

There acquisition of binna rights by a Kandyan woman, who was married in diga, does not give her title to property alienated by the other heirs before she re-acquired the binna rights.









The re-acquisition of binna rights is not a one-sided process; the fathe''s fami'y must intend, or at least recognize, the results.

APPUHAMY et al. v. KUMARIHAMY et al., 93, District
Court, Badulla, 3,585

2. Kandyan law-Registered diga marriage-Bride continuing to live in mulgedera-No forfeiture of right to paternal property-Meaning of "best evidence."

A Kandyan woman whose marriage was registered as a diga marriage, but who continued to live in the mulgedera, was held not to have forfeited her rights in the paternal


BERTRAM C.J.-As between, or as against the parties, or their representatives in interest, the register of the marriage is conclusive of the intention with which the marriage was celebrated, unless the case is shown to be one of mistake or fraud, or can otherwise be brought within the equitable exceptions of section 92 of the Evidence Ordinance. Persons not parties, however, are not bound by the register, but are entitled to show that the true character of the marriage was not in fact such as it is represented to be By contracting a marriage in diga, in which the bride's family participated, the parties bound themselves to each other and the family that the bride should be conducted in accordance with custom, and should settle in the home of her husband. But if this, for whatever reason, was not done, and, if with the acquiscence of her family, the bride remained in the mulgedera, then the forfeiture was never consummated."



A diga marriage ceremony does not of itself work a forfeiture irrespective of the subsequent action of the parties."

ENNIS J.-The forfeiture of the bride's rights in the paternal estate turns on the question of fact, whether the bride left the paternal home in accordance with the contract. In the absence of evidence there would be a presumption that the terms of the contract relating to residence had been carried out, but I see no good reason for excluding cral testimony relating to the carrying out of this term of the contract, which was not a matter of fact occurring at the time of the contract.

MAMPITIYA v. WEGODAPELA et al., 293, District Court,
Kandy, 27,829

Kandyan law-Deed of gift-Renunciation of the rights of


A Kandyan deed of gift which expressly renounces the right of revocation, and which is not dependent on any contingency, is irrevocable.

A deed of gift is a contract, and there is no rule of law which makes it illegal for one of the parties to the contract to expressly renounce a right which the law would otherwise give him.

KIRIHENAYA v. JOTIYA, 72, District Court, Kegalla,





4. Kandyan law-Intestate succession-Person dying leaving children by two or more beds.



Where a person dies intestate, leaving issue by two or
more beds, the estate is divided among children per stirpes
and not per capita.

NANDUWA v. PUNCHIRALA et al., 111, Court of Requests,
Panwila, 5,101

Kandyan law-Diga marriage-Wife dying issueless-
Husband does not acquire any portion of wife's landed
property acquired before marriage-Wife dying leaving child-
ren—Husband's rights-Binna widower from rights to
landed estate of deceased wife.

Where a Kandyan wife married in diga dies issueless, the
husband does not inherit any portion of the wife's landed
property acquired before marriage.

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Inherited property reverts to the source from which it was inherited where there is no issue."

When a woman married in diga dies leaving issue, her husband takes a life interest in her landed property, which on his death will go to her children, or, if they have all died without issue, to their next of kin in their mother's family. In the above case if there be no issue, her husband will take only such landed property as he and his deceased wife acquired during coverture, the rest of the property passing to her parents and next of kin.

A binna widower is completely excluded from any rights
to the landed estate of his deceased wife.

SENEVIRATNE v. HALANGODA et al., 228, District Court,
Kandy, 27,718

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

Where a Kandyan Sinhalese woman marries a low-country
Sinhalese, her matrimonial rights are governed by the
Kandyan law and not by Ordinance No. 15 of 1876.

A Kandyan Sinhalese is not a person of a different race
or nationality from a low-country Sinhalese.

Court, Kandy, 29,546

Labour Ordinance






Motor launch driver-Notice to terminate service-One month from date of notice-Ordinance No. 23 of 1912—Ordinance No. 11 of 1865.

A motor launch driver may be regarded as a chauffeur, and Ordinance No. 11 of 1865 applies to him (Ordinance No. 23 of 1912). He is, therefore, entitled to only one month's notice from the day of issuing such notice. Where he was given notice on February 11 and dismissed on March 11

Held, that the notice was sufficient.

of Requests, Colombo, 1,289


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Stamp duty-Lease-Mortgages affecting more lands than one embodied in leases-Ordinance No. 10 of 1919. Part I., Schedule B


Lessor and lessee-

1. Action by lessees for cancellation of lease-One plaintiff becoming lunatic, pending action, and disappearingRight of other plaintiff to go on with the action.


Plaintiffs who were lessees instituted an action for the cancellation of a lease. Pending the action the first plaintiff became a lunatic and had disappeared, and it was not possible to take proceedings to have him adjudged a lunatic and properly represented in the action.

Held, that in the circumstances the second plaintiff could not go on with the action as far as his share was concerned.

"The only alternative that the second plaintiff has is to withdraw from the action and institute, if he is so advised, a separate action on his own account."

APPUHAMY et al. v. WILLIAM SINGHO et al., 140 (Inty).
Kegalla, 5,559

Sale by auctioneer under a mortgage decree--Purchaser gets
title from date of transfer, and not from date of sale-Civil
Procedure Code, ss. 201 and 289-Covenant by a lessor to
pay a sum of money to lessee in the event of his selling the
property pending lease-Not applicable to sale in execution
-Claim for damages by lessee for mortgaging property
after lease-Liability of lessee to pay rent though subtenants
do not pay rent owing to lawful act of lessor.

A leased his land to B who did not register his lease. Thereafter A mortgaged it to C, who put the bond in suit and obtained judgment. The property was sold by an auctioneer under the mortgage decree.

Held, that the lessee (B) was bound to pay rent to the lessor (A) up to the date of the execution of the deed of transfer in the absence of any special agreement, as the purchaser's title does not relate back to the date of the actual sale as in the case of a Fiscal's sale.

The lessee alleged that after the notice of sale, his subtenants were disturbed in mind, and would not pay their rents.





Held, that this did not justify the lessee with holding rent from the lessor. A tenant is not discharged from his legal obligations to his landlord by a purely lawful act on the part of that landlord, simply because in consequence of that act his own subtenants misconceived their own legal position."

A covenant by the lessor to pay a sum of money to his lessee, in the event of his selling the property pending the lease, does not apply to a sale in execution.

The lessee has no right to claim damages from his lessor for granting the mortgage (which was registered) after leasing it to the lessor.

MOHIDEEN v. ISEY, 52, District Court, Colombo, 2,306.. 239




Lease of ground share of plumbago lands-Is delivery of
possession necessary?-Vacant possession-Is there a
difference between lease and sale-Lease of a chose in action

Lease of rents of tenements-Lease of taxes and tolls-
Actio conducti-When damages may be recovered from
lessor for not delivering possession-Remission of rent or

A lessor must give possession of the thing let to the lessee. In the case of a lease of a chose in action, the requirement as to delivery of possession is fulfilled by the execution of the assignment; for example, in the case of the lease of the rents of a line of tenements, a formal attornment from each tenant to the lessee is not necessary.

But in addition to the right to be put into possession the lessee is also entitled to " quiet enjoyment." Consequently the actio conducti lies when the lessee is not permitted to enjoy the thing leased. This action lies whether the obstruction to the enjoyment of the property is due to any act of the lessor or to the act of a third party, and notwithstanding the fact that the lessor acted in good faith.

"If your tenant is prevented from enjoying the farm leased to him, either by you or some one whom you can restrain, you must pay him damages in which his anticipated profits may be included. If, however, he is so excluded by some one whom you cannot restrain, or by reason of vis major, you are only responsible to him for a remission of rent.'

Where the lessee of the ground share of certain plumbago lands was prevented from getting his ground share by reason of certain antecedent contracts, the lessor had entered into with the miners

Held, that he was entitled to recover damages.

MARALIYA v. FERNANDO, 429, District Court, Ratnapura,

Lease of coconut estate-Negligent cultivation-Forfeiture-
Is malignant abuse necessary for forfeiture-Urban and
rural tenement -Framing of additional issues during the

In every case it is a question for the Judge whether any particular abuse of the leased property may be more appropriately dealt with by damages only, or by cancellation of the lease.

Negligent cultivation may in any particular case, according to the circumstances, be a ground for cancellation of a lease.

Voet's observation that it would not be just to cancel a lease, except on the ground of gross and malignant abuse, must be read with the context in which it occurs, and with special reference to leases of urban tenements where, in the nature of things, any abuse entitling the lessor to cancellation would almost necessarily be malignant.



OBEYESEKERA, 233, District Court, Negombo,

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





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