085-NLR-NLR-V-15-APPUHAMY-v.-NONA.pdf
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Present : Pereira J.
APPUHAMY v. NONA184—rC. R. Panadure, 10,259
Croton grant in favour of dead person—Voidr—Point of law raised inappeal for the first time.
Pbbeisa J.—Underour procedureallthe contentiousmatter
between the parties toa civil suit is,sotosay,focussedin the
issues of law and fact framed. Whateverisnotinvolvedin the
issues is to be taken asadmitted by oneparty orthe other,and
under our procedure it isnot open to aparty toput forward a
ground for the first timein appeal unlessit mighthave beenput
forward in the Court below under some one or other of the issuesframed, and when sucha ground that isto say,a groundthat
might have been putforward in theCourt below,is putforward
in appeal for’ the first time, the cautions indicated in the Tasmania1may well be observed.
Obiter.—A Crown grant in favour of a deceased person is void,
fjp HE facte appear sufficiently from the judgment.
H. A. Jayewardene, for the defendant, appellant.
A. St. V. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
July 17, 1912. Pereira J.—
In this case the plaintiff derives title to the share of land indispute from one Juanis, in whose favour Crown grant No. 24,552in respect of the whole land appears to have been issued on August
1912.
i (1890) 15 A. C. 223.
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1912.
Pekbika J.
Appuhamyv. Nona
10, 1906. It is argued in appeal that it appears from the evidencerecorded in the ease that Juanis was dead at the date of the issueof the Crown grant, and that, therefore, the Crown grant was voidand inoperative, being practically a conveyance of property in favourof a deceased person. Following the analogy of the effect of aFiscal’s conveyance made in favour of a purchaser after his death(see Ba8tian v. Andris1), I am inclined to think that this contentionis sound; but it is open to the defendant in this case to raise thisquestion in this appeal? There was no issue either framed orsuggested at any time as to whether Juanis was dead at the date ofthe Crown grant, and as to the effect of a grant issued in favour of aperson after his death; and in the Court below there was no suchcontention as is now put forward. Mr. H. A. Jayewardene invitedmy attention to issue No. 4: “ Did Juanis or Singho Appu pay thehalf-improved value, and was the issue of the Crown grant to Juanisproper? ” The present contention is not covered by this issue. Theissue presupposes that Juanis was alive at the date of the issue ofthe grant, and the question here really is whether the issue of thegrant to him was proper if Singho Appu had paid the half-improvedvalue. Mr. Jayewardene then cited to me the case of the Tas-mania.'‘ There it was held that a Court of Appeal ought only todecide in favour of an appellant, on a ground there put forward forthe first time, if it be satisfied beyond doubt, first, that it has beforeit all the facts bearing upon the new contention as completely aswould have been the case if the controversy had arisen at the trial;and next, that no satisfactory explanation could have been offeredby those whose conduct is impugned if an opportunity for explana-tion had been offered them when in the witness box. I am hot surethat this ruling would apply to a system of procedure in which theframing of issues at the trial is an essential step except to the .extentof admitting a new contention urged for the first time in the Courtof Appeal, which, though not taken at the trial, is still admissibleunder some one or other of the issues framed. Under our procedureall the contentious matter between the parties to a civil suit is, soto say, focussed in the issues of law and fact framed. Whateveris not involved in the issues is to be taken as admitted by one partyor the other, and I do not think that under our procedure it is opento a party to put forward a ground for the first time in appealunless it might have been put forward in the Court below undersome one or other of the issues framed, and when such'a ground,that is to say, a ground that might have been put forward in theCourt below, is put forward in appeal for the first time, the cautionsindicated in the case of the Tasmania* may well be observed.
I see no reason to disagree with the Commissioner in his decisionon the question as to prescriptive possession.
Affirmed.
» (’911) U N. L. R. 437.1 (1890) 15 A. C. 223.