2.

3.

subsequently transferred it to plaintiff. The defendant urged that as the donor was not in possession of the property at the time of the gift, the only way by which the seizin of the property could be proved would be to show that the donee had received the rents and profits of the property gifted, and that there was no evidence on this point.

The Court presumed in the circumstances of the cases that the rent was spent on behalf of the minor son.

"One must presume after lapse of years that everything had been done that should have been done." In the present case there is an accumulation of small details which seem to indicate that the Judge was right in coming to the conclusion that possession had been taken of the land gifted to the donee.

HABEEBU U. SILVA, 300, District Court, Galle, 18,265..

Muhammadan charitable trust-Direction by founders that
one of their heirs should be appointed trustee-No direction
as to how the heir is to be chosen.

The founders of a Muhammadan charitable trust directed that from time to time one of their heirs should succeed to the office of trustee. No direction was given as to the mode in which that particular heir should be chosen.

Held, that under the Muhammadan law the selection should be done by the Judge.

The appointment of the son of the last trustee was confirmed by the Supreme Court.

MOHOMEDU v MEERA KANDU et al., 351, District Court,
Jaffna, 14,353

Muhammadan law Gift subject to condition that donor
do recover rent and pay a portion to donee-“ Seizin.”

P, in pursuance of an agreement to settle upon his granddaughter Z a property by way of dowry, executed a deed of gift D 1, and provided that the donor P was at liberty during his life to recover and receive the rents and pay unto Z Rs. 40 per mensem, and in the event of P failing so to pay, Z was to recover the entire rents, and P was to forfeit the right to recover rent. Z donated the property to the plaintiff with the consent of P. In an action by the plaintiff, P contended that D 1 was inoperative under Muhammadan law to pass title to Z or to any one claiming through her, as Z had no "seizin."

Held, that the objection was invalid, as P's possession was similar to that of a tenant under Z.

Plaintiff, who was a curator of a minor, brought an action for declaration of title with the sanction of Court. He did not get himself appointed next friend; the action was brought in the name of the curator. The defendant in his answer objected that the plaintiff was not entitled to maintain the action in his name. The plaintiff, immedately before trial, moved to get himself appointed next friend. The District Judge ordered the plaint to be taken off the file. The Supreme Court allowed the plaint to be amended by the addition of the name of the minor, and directed the curator (original plaintiff) to be appointed next friend.

KAHALID. PAKEER, 239, District Court, Colombo,
383

Mukalana"..

PAGE

379

390

508

112

PAGE

Municipal Councils Ordinance

Wrestling match-Is it an acrobatic performance ?

A" wrestling match" is not an acrobatic performance "
within the meaning of the expression in the by-law framed
under sections 109 (1) and 110 (15) of the Municipal Councils
Ordinance, No. 6 of 1910, and published in the Government
Gazette No. 6,956 of July 12, 1918.

DICKMAN v. RAHIM, 386, Municipal Court, Colombo,
3,930

Mutual Provident Association

Mutual Provident Association-Member nominating a person to receive credit balance and contributory call-Death of nominee-Rule that in absence of nominee sum to be paid to widow of heirs of member-Devise in last will of member to third party.

Under the rules of the Ceylon Mutual Provident Association, each member could nominate a person of a specified class to be the person to receive the credit balance and contributory call on the death of a member. In the absence of a nominee, the credit balance and contributory call were to be paid to the member's widow, and if there be no widow to his children, and if there be no children to the next of kin or legal heirs. S, a member, nominated D, who died before S. Then S died, leaving no widow or children, but only a sister and nephew as heirs. By last will S devised this specific sum to the widow of D.

Held, that the widow of D was entitled to the sum in ques tion under the last will.

66

ENNIS J. The rules merely say that the money shall be
paid to a nominee, a certain specified person, and do not
say that the money should become the property of that
person, and I know of nothing by which the payment under
the rules would affect the devolution of ownership according
to the principles of law."

CEYLON MUTUAL PROVIDENT ASSOCIATION v. MENDIS
et al., 91, District Court, Colombo, 487

Modern civilization

"Nominee "

148

205

36

205

Partition

1. Partition-Person entitled to a building and not to the soilIs he a co-owner ?-Sale among co-owners-Partition Ordinance, 1863, 8. 8.

2.

A person who has no interest in the soil, but has only in
a building of the land, is not a co-owner of the common
property, so as to entitle him to come in among the class of
persons entitled to bid at a sale among co-owners under
section 8 of the Partition Ordinance.

HAMIDU v. GUNASEKERA et al., 57, District Court,
Matara, 9,322

Partition Ordinance, 1863, 8. 9-Action for damages
against parties to a partition action for depriving plaintiff
of his share by not disclosing same to Court-Act of omission.
A purchaser from one of the heirs of X instituted a
partition action on the footing that only the children of the
brothers of X were the heirs of X, and that the sisters of X

143

were not heirs. After preliminary decree the children of the brothers came to a settlement with the children of the sisters and gave them in the testamentary case a smaller portion than they would have been entitled to had the sisters been intestate heirs. On the report of the Commissioner in the partition case being received, the plaintiff issued notice to the defendants (children of the brothers) to show cause against the scheme of partition being confirmed, and as they did not appear to show cause, final decree was entered. The children of the sisters thereafter brought this action for damages against some of the children of the brothers under section 9 of the Partition Ordinance, 1863.

Held, that they were not entitled to damages.

The act of omission contemplated in section 9 implies some element of wilfulness and intention to produce a prejudicial result; the omission must be of an act which one is bound to do.

DULLEWE et al. v. DULLEWE et al., 32, District Court,
Kandy, 28,349

3. Mortgage of a divided share by a person who was entitled to an
undivided share-Partition action-Does the mortgage
attach to the divided portion allotted to the mortgagor, or to
the person who represents the mortgagor ?

The first defendant who was entitled to an undivided share of a land mortgaged a divided portion of the land to the plaintiff. Subsequently, the second defendant, who purchased first defendant's interests at a Fiscal's sale pending a partition action, was decreed entitled to a divided portion (representing the undivided share of the first defendant). Plaintiff brought an action on the mortgage bond.

Held, that the mortgage did not attach to the divided portion allotted to the second defendant.

SIDAMBARAM CHETTY v. PERERA et al., 503, District
Court, Chilaw, 6,678

4. Commission to surveyor to fix boundary-Parties ordered
to pay surveyors' fees-Fees not deposited in Court by
plaintiffs for over one year-Action dismissed-Dismissal
wrong-Partition action

Partnership

Action by persons trading in partnership to recover money due from a servant of the business-Partnership agreement not reduced to writing-Is action maintainable?

The plaintiffs, alleging that they were carrying on business in partnership, sued the defendant, their servant, to recover a sum of money found, on account being struck, to be due from him. The Commissioner dismissed the action, as there was no writing to establish the partnership.

Held, that the dismissal was wrong. The action was one
purely between masters and servant, and the plaintiffs did
not seek to establish a partnership so far as the defendant
was concerned.

SILVA et al. v. FERNANDO, 60, Court of Requests,
Colombo, 83,401

Paulian action

See FRAUDULENT ALIENATION

PAGE

166

214

183

191

236, 286

Pawnbrokers' Ordinance

Penal Code

1. Secretary, Local Board, ordered to issue permits to purchase rice during food control-Charge of accepting illegal gratification-Penal Code, ss. 19 and 158-Public servant.

The accused was charged under section 158 of the Penal Code with having in his capacity as a public servant, to wit, Secretary of the Local Board, Matale, accepted illegal gratification. As Secretary he was entrusted during the food control period by the Chairman of the Board (who was also Deputy Food Controller) with the duty of issuing permits to retail dealers to enable them to purchase rice from wholesale dealers and to perform other duties connected with food control, for which he was not paid anything extra. The charge was in connection with these duties.

Held, that the duties assigned to the accused came within the functions of a Local Board, and that the Chairman had the right to instruct him to do the work assigned to him, and that the accused, as Secretary of the Local Board, was a public servant within the meaning of section 19 of the Penal Code.

Apart from his official status as Secretary, the accused
was not a public servant.

THE KING v. SELLIAH et al., 26, District Court, Kandy,
3.375

Mischief-Shooting fowls trespassing on garden planted with
vegetables--Law as to destruction and injuring of brute
animals while committing trespass-Penal Code, s. 409.

It is mischief to inflict wanton injury upon an animal, the
property of another, merely because it is trespassing upon
premises.

Whenever a charge of mischief is preferred, before a Court
can convict, it must be satisfied, not only that the injury had
been inflicted, but that the facts and circumstances justify
the inference of the presence of criminal intention or know-
ledge. Such an inference would not be justified unless they
negative a reasonable inference that the act could be due
to any other state of mind, such as accident, carelessness, or
negligence, or bona fide belief in one's right
In
every case the question has to be considered whether the act
was done in the defence of some person's property. The
nature of the damage which has been done, the kind of
animal which was doing it, and other circumstances must
needs be considered
In judging a man's state of
mind in killing or injuring an animal, the valuable nature
of the animal cannot be lost sight of. A person could hardly
justify the destruction of an elephant, a horse, or a valuable
cow, on the ground that he had done the act to protest a
field under paddy, even if he has made an effort to drive
it away. But, on the other hand, it is not as easy to keep
pigeons or fowls from a plantation as other animals such
as cattle, and if an accused person pleads that he had killed
pigeons or fowls because he could not prevent them from
damaging his crop of gram or other produce, it is obvious
that he is not guilty of mischief, for the intention of the
act seems clear that it was the protection of his property.

SAIBO v. PERERA, 179, Police Court, Kurunegala, 14,310

PAGE 221

18

65

3. Criminal breach of trust-Ordinance No. 22 of 1889-Tax collector not paying tax collected within specified date— Penal Code, s. 392.

The accused had to collect taxes for a Sanitary Board and pay them to the Chairman before February in each year. He paid a portion, and on March 4 the Chairman wanted him to pay the balance, and he tendered a further instalment which was refused, as the whole balance was not tendered. A warrant was applied for on March 10, and on the 14th he paid the whole balance.

Held, that accused was not guilty of criminal breach of trust, as there was no dishonest intention.

The Ordinance No. 22 of 1889 did not intend to make a man a criminal who had no guilty or dishonest intent. It simply intended to facilitate proof of dishonesty, which is often difficult to prove. The word" forthwith " in the Ordinance means within a reasonable time.

SOMANADER v. UDUMA LEBBE, 272, Police Court,
Batticaloa, 11,018

4. Theft-Removal of cattle from pasture ground for enforcing
money due for grazing “ Dishonestly

5.

The accused who were renters of a grazing ground removed some goats belonging to the complainant from whom money was due for animals tied in the pasture ground, in the mistaken belief that they had the right to do so, to enforce payment.

Held, that accused were not guilty of theft.

PONNU 2. SINNATAMBI et al., 333, Police Court,
Trincomalee, 353

Criminal breach of trust--Mere deficiency of goods entrusted

to servant.

Mere deficency in the quantity of the goods entrusted to a servant is not of itself sufficient proof of criminal breach of trust.

LAXANA v. MUHANDIRAMA, 330, Police Court, Matale,
18,186

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

Where a complaint discloses a primâ facie case of a higher offence, it is not right for a Magistrate to take proceedings for a lower offence.

Accused gave false information to a Korala that another person had caused hurt to him, knowing such information to be false, and intending to cause the Korala to use his lawful power to the injury or annoyance of such other person. The Magistrate convicted accused under section 180 of the Penal Code. The Supreme Court set aside the conviction, and sent the case for non-summary proceedings under section 208 of Penal Code.

“Although a Korala is not a public servant directly concerned in the institution of criminal proceedings, he has the power to present a complaint to the Court under section 148 (b) of the Criminal Procedure Code, which means that he has the power to institute proceedings."

Jayasinghe v. Siyadoris Appu and Seraph v. Kandyah considered.

APPUHAMY v. SIDDAPPU, 528, Police Court, Matale,
18,445

146

248

251

394