Legal Services and Laws of Sri Lanka


SLR-2001 Vol.2-P124

SLR - 2001 Vol.2, Page No - 124

VERNON BOTEJU

V.

PUBLIC TRUSTEE
COURT OF APPEAL

WEERASURIYA, J.

UDALAGAMA J

C.A. 663/90

D.C. COLOMBO 4956/ZL

SEPTEMBER 30, 1989

NOVEMBER 30, 1999
Rei Vindicatio Action - Executor entitled to administer property -Orderforejectment-IstheAdministratorfunctus
officio - Delay in delivery of Judgment - Civil Procedure Code S 187 and 540, Constitution Article 138(1).

The Plaintiff - Respondent (Public Trustee) instituted action in the capacity as Executor of theLastwillofthedeceased
one 'B' to recover possession of the property, in possession of the Defendant Appellant.

The Defendant - Appellant denied that he was in unlawful occupation.DistrictCourtenteredJudgmentinfavourofthe
Plaintiff - Respondent.

It was contended by the Defendant - Appellant that the Plaintiff - Respondent was functus officio, and that there was along
delay of 33 months to deliver Judgment, and that the Plaintiff - Respondent has failed toprovethenecessaryingredients
for a rei vindicatio action.

Held :
(1) In this instance at the time of the institution of the action, the Executor had not completed the administrationofthe
Estate, for the reason that the land in question was in the possession of the Defendant - Respondent. To befunctusofficio
he has to duly complete the administration of the estate.

(ii) The case of the Defendant - Appellant was entirely dependent on the construction ofdocumentsandontheconclusion
drawn from such documents. There is no allegation that the Trial Judge has over looked or misconstrued some featuresofthe
oral testimony. Therefore there is no material to establish that delay of 33 months thoughreprehensiblehasoccasioneda
failure of justice.
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(iii) The direction in the Last will that Lot 11hasbeenbequeathedto`Mindicatethatbeforehisdeath'B'had
acknowledged the existence of Lot 11 in lieu of his undivided rights to the saidproperty.Theadmissionsshowthatthe
Defendant - Appellant has accepted posession of the property allotted to the 16th Defendant which forms a part of theestate
of `B' in terms of his Lastwill admitted in T/1005/90. D. C. Colombo.

APPEAL from the Judgment of the District Court of Colombo.

Cases referred to :
1. Aron Fernando v. R.M. Buddhadasa 1986 Colombo Appellate Law Report - Vol. 2 page 112

2. Edwin v. De Silva 62 N.L.R. page 45

3. Saravanamuttu v. Saravanamuttu 61 N.L.R. 1

4. Senanayake v. Edirisinghe B.A.S.L. Law Journal 1990 Vol. III part - 2 page 5

Faiz Musthapa P. C., with Chula Bandara for Defendant - Appellant.

P. A. D. Samarasekera, P. C., with Keerthi Sri Gunawardena for Plaintiff - Respondent.
Cur. adv. vult.
May 19, 2000.
WEERASURIYA, J.
The Public Trustee (hereinafter referred to as the plaintiffrespondent)byplaintdated10.05.1985,institutedaction
against the defendant-appellant seeking the following reliefs.

(a) a declaration that the land described in the schedule to the plaint belong to the estate of late Francis Joseph Botejue

(b) a declaration that the plaintiffrespondentinhiscapacityasexecutorofthelastwillisentitledtothe
administration of the said property

(c) a declaration that the defendant-appellant is not entitled to possess the property

(d) an order for ejectment of the defendant-appellant and all persons holding under him there-fromand
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(e) damages.
The defendant-appellant in his answer whilst denying the allegation that hewasinunlawfuloccupationoftheproperty
prayed for dismissal of the action. This case proceeded to trial on 21 issues and at theconclusionofthecase,learned
District Judge, by his judgment dated 24.04.1990 entered judgment for the plaintiff-respondent.Itisfromtheaforesaid
judgment that this appeal has been lodged.

At the hearing of this appeal, the case of the defendant appellant was presented on the following grounds.
(a) that the learned District Judge has failed to consider that the plaintiff-respondent was functus officio
(b) that grave prejudice has been caused to the defendant appellant as the judgment has been delivered 33monthsafterthe
conclusion of the caseand
(c) that the plaintiff-respondent has failed to prove the ingredients necessary for a rei vindicatio action.

The contention of learned Counsel for the defendant appellant that the plaintiff-respondent was functus officio was basedon
the premise that the executor (plaintiff-respondent) by instrument dated 14.10.1992 conveyed this property to Neomi Pereraa
beneficiary named in the last will. It is significant to note that the executors conveyance has beeneffectedin1992two
years after the delivery of the judgment and seven years after the institution of the action.

The plaintiff-respondent has instituted this action in his capacity as executor of the lastwillofthedeceasedFrancis
Joseph Botejue to recover possession of the aforesaid property which wasadmittedlyinthepossessionofthedefendant
appellant. The plaint also disclosedthattheplaintiffrespondentwasappointedasexecutorofthelastwillas
authenticated by
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the issue of probate in testamentary case No. 1005/90 of the District Court of Colombo.
In terms of Section 540 of the Civil Procedure Code if no limitation is expressed in the order makingthegrant,thenthe
power of administration, which is authenticated by the issue of a grant of probate, or is conveyed by the issueofagrant
of administration, extends to every portion of the deceased person's property, movable and immovable, withinSriLankaand
extends until the whole of the said property is administered, or the completionoftheadministrationwhicheveroccurs
first.

In the case of Aron Fernando Vs. R. M. Buddhadasa(1) it was held that an administrator could beconsideredfunctusofficio
not because he has rendered a final account nor even because there has been a judicial settlement oftheestate.Thetrue
criterion appears to be whether he has duly completed the administration of the estate.
In the instant case, action has been instituted to recover possession of the property which was admittedly in thepossession
of the defendant-appellant. It was evident that at the time of the institution of the action, the executor has notcompleted
the administration of the estate for the obvious reason that land describedinthescheduletotheplaintwasinthe
possession of the defendant-appellant. Therefore, the executor in the instantcasehadcompletepowerandauthorityto
institute action for a declaration that the property described in the schedule to the plaint belong to the estate ofFrancis
Joseph Botejue and to recover its possession and ejectment of the defendant-appellant therefrom.

The contention of learned Counsel for the defendant appellant that grave prejudice has been caused to him, due tothedelay
of delivering the judgment 33 months after the conclusion of the case was based mainly on the premisethatfailureofthe
District Judge to answer issues Nos. 16 - 21 was caused by fading away of his memory with time.
Issues Nos. 16, 17 and 18 relate to the maintainability of the action as the executor of the last will of Francis Joseph
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Botejue. However, issue No. 2 which has been answered in the affirmative was to the effect whethertheplaintiff-respondent
was the executor of the last will. Therefore, one cannot assert that the omission to answer issues Nos. 16, 17 and18would
cause prejudice inasmuch as the capacity of the plaintiff respondent was established.

Issues Nos. 19 and 20 relate to the question of prescription by thedefendant-appellant.Despitetheomissiontoanswer
these two issues learned District Judge on a consideration of totality of the evidence had come to a findingthatdefendant
appellant's plea of prescription cannot be sustained.

Similarly, issue No. 21 which has been formulated by the plaintiff- respondent relate to the maintainability of the claimin
reconvention on the basis of prescription and the learned District Judge has made a fording thatitcannotbemaintained.
Answer to issue No. 13 in the affirmative appears to be inconsistent with his earlier finding that the claim inreconvention
cannot be sustained. Therefore, this appears to be a mistake and the question to be examined is whethersuchmistakewould
invalidate the judgment.
Section 187 of the Civil Procedure Code provides that a judgment must contain the following:
(a) a concise statement of the case
(b) the points for determination,

(c) the decisions thereonand

(d) reasons for such decisions.
On a careful scrutiny of the judgment, it is apparent that the above requisites have beensatisfieddespiteafailureto
answer some issues. It is noteworthy that a point for determination may involve several issues.

Proviso to Article 138 (1) of the Constitution provides that no judgment, decree or order of any Court shall be reversed or
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varied on an error, defect or irregularity which has not prejudiced the substantial rights of thepartiesoroccasioneda
failure of justice.

The learned District Judge has arrived at findings on the points for determination upon an evaluation of the evidence ledin
this case. Therefore, despite the error that has occurred in answering issue No. 13 and his failure to answer some issuesit
is not open to the defendant-appellant to assert that prejudice has been caused to his substantial rights orhasoccasioned
a failure of justice.

I shall now proceed to examine the pivotal question whether delay of 33 months (2 yearsand9months)indeliveringthe
judgment has caused prejudice to the defendant-appellant or has occasioned a failure of justice. LearnedCounselcitedthe
case of Edwin vs. de Silva(2) where it was observed that delay of nearly 2 yearsindeliveringthejudgmentwouldcause
prejudice to the parties. It was observed that a judgment of a Judge of a Court of First Instance based on a mere readingof
the typescript is not of the, same value as a judgment delivered while the recollection of the trialandofthedemeanour
and attitude of the witnesses and the impression created by them on him are fresh in his mind.

Further, in Saravanamuttu vs. Saravanamuttu(3) it was held that byreasonofadelayofnearlyoneyearbetweenthe
conclusion of hearing and the preparation of the judgment, the Judge was bound to have lost the advantage of theimpressions
created by the witnesses whom he saw and heard and his recollection of the finer points in the casewouldhavefadedfrom
his memory by the time he came to write his judgment.

However, in Senanayake vs. Edirisinghe(4) it was held that it is not that delay perse is presumed to vitiate ajudgmentbut
to vitiate a judgment on that ground, the effect of delaymustbeoneoccasioningafailureofjusticeandmustbe
demonstrated by drawing attention to relevant items of evidence which the
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Judge has misconstrued or overlooked or to features which indicate the Judge's recollection of the nicities oftheevidence
or the demeanour of the witnesses had faded with time thereby vitiating his acceptance of oral testimony.
In the instant case, the plaintiff-respondent produced documents marked P1 - P12 through witness Chandrapala a clerkofthe
District Court of Colombo. Therefore, the case of the plaintiff-respondent was entirelydependentontheconstructionof
documents and on the conclusions drawn from such documents. In thecircumstances,itwouldappearthattheimpressions
created by the witnesses and fading away of the finer points of the evidenceorthedemeanourofthewitnessesofthe
plaintiff-respondent would not arise. There has been no allegation that the District Judgehasoverlookedormisconstrued
some features of the oral testimony of the defendant-appellant or his witness licensed SurveyorNanayakkarawhichindicate
that District Judge's recollection of the niceties of evidence or thedemeanourofthewitnesseshadfadedwithtime.
Therefore, there is no material to establish that delay of 33 months in the instant case though reprehensible hasoccasioned
a failure of justice.

The contention that the plaintiff respondent has not provedtheingredientsnecessaryforareivindicatioactionis
untenable. Francis Joseph Botejue was declared entitled tolot11ofthelandcalledMillagahawattaandDelgahawatta
depicted in plan No. 1524 A as evidenced by the final decree in partition case No. 1125 marked P7. LearnedCounselforthe
defendant appellant sought to argue that whenthedefendant-appellantwassubstitutedinplaceofthedeceased16th
defendant Francis Joseph Botejue the rights allotted to him was the entitlement of the heirs of FrancisJosephBotejue.It
is to be observed that defendant-appellant was substituted in place of the deceased as representative of theestateofthe
deceased 16th defendant. Therefore, it is clear that the rights that were allotted in the final decree were the rightswhich
devolved on the 16th defendant.
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Learned Counsel for the defendant-appellant submitted that there was no land called lot 11 in existence at thetimeofthe
death of Joseph Francis Botejue. Despite the fact that at the time of the death of Joseph Francis Botejuefinaldecreehas
not been entered yet it cannot be forgotten that in the last will, Francis Joseph Botejue referred tolot11ofthesaid
land as the land bequeathed to Neomi Perera. The argument that there was no land known as lot 11 has no significanceaslot
11 is a divided portion allotted to the 16th defendant in lieu of his undivided rights in the saidproperty.Thedirection
in the last will that lot 11 has been bequeathed to Neomi Perera indicate that lot 11 has beenbequeathedtoNeomiPerera
indicate that before his death Francis Joseph Botejue had acknowledged. the existence of lot 11inlieuofhisundivided
rights to the said property. It is significant to observe that final plan is dated 20.11.1970.

Defendant-appellant has conceded that he is in occupation of this land and that he has built a temporaryhut.Paragraph11
and 12 of the plaint which have been admitted by the defendant-appellant refer to the acceptance ofthepossessionofthe
land by defendant-appellant as the legal representativeofthedeceased16thdefendantandthereaftererectionofa
temporary but on 17.10.1983 and intimation by letter of even date to hand over possession andtorefrainfromerectinga
hut. Therefore, there is admission that there was an erection of a temporary but on 17.10.1983 andthebarereceiptofa
letter of even date. Therefore, these admissions are clear proof ofthefactthatthedefendant-appellanthasaccepted
possession of the property allotted to the 16th defendant which forms a part of theestateofFrancisJosephBotejuein
terms of his last will administered in case No. T 1005/90 D.C. Colombo.

For the foregoing reasons, it seems to me that there is no basis to interferewiththefindingsoftheDistrictJudge.
Therefore, this appeal is dismissed with costs.

UDALAGAMA, J. - I agree.

Appeal dismissed.

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