ENSO NONA v. SOMAWATHIE AND OTHERS

036-SLLR-SLLR-1998-V-3-ENSO-NONA-v.-SOMAWATHIE-AND-OTHERS.pdf


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Enso Nona v. Somawathie and Others
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ENSO NONA
v.SOMAWATHIE AND OTHERS
COURT OF APPEALJAYASURIYA, J„
C.A NOS. 300/82, 301/82A.T. KURUNEGALA NO. 229/CNOVEMBER 20TH, 1996FEBRUARY 26TH, 1997MARCH 26TH, 1997
Agrarian Services Act – S. 5 – S. 8 (1) – S. 68 – Eviction – Rights of wifeto succeed – Operation of law – Cultivator cultivating through her sons.
The original applicant-respondent and the fourth respondent-appellant (son in law)preferred competing claims in respect of a paddy field. It was considered thatthe original Ande cultivator was William Singho the husband of the original
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applicant-respondent. After the death of William Singho his unmarried son who
lived with his mother has cultivated the field up to the date of his premature death.
Thereafter the wife of his original Ande cultivator has permitted her two daughters.
her son and son in-laws to cultivate on her behalf.
Held:
An Ande cultivator could lawfully cultivate the paddy field through theagency of the members of his family.
The law in its wisdom views the conferment of Ande rights as a privilegereposed in the Ande cultivator for the sustainance of the members of hisfamily and if the Ande cultivator engaged the services of the membersof his family to cultivate the paddy field the cultivation of the paddy fieldwas deemed to have been performed by the Ande cultivator himself. Thesecond legal fiction is manifested in the law.
Where the original Ande cultivator died there was a transmission of hisAnde rights by operation of law to his lawful widow (S. 8 (1)).
Per Jayasuriya, J.
"when there is a transmission of rights by operation of law such transmissionbecomes effective irrespective of what the parties may actually do by theirown positive acts, such transmission of rights by operation of law is notdependent on the acts of parties'.
Per Jayasuriya. J.
‘If a Ande Cultivator dies and on his death there had to be actual cultivationof the field by the widow soon after death, an imposter spoliator wouldbe induced to enter the field in the event of death taking place and thereaftercontend successfully that as he had prevented the widow from engagingin actual cultivation that there was no transmission of rights by operationof law to the widow and the widow was not entitled to institute an applicationto have him ejected from this field soon after the death of her husband,if such a interpretation is adopted by courts it would nullify the RomanDutch Law principal. Spolitus Ante Omina vestituendus est ad-a-wrongdoer spoliator would be entitled to benefit by his wrongful act."
APPEALS from the order of the Assistant Commissioner of Agrarian Services,
Kurunegala.
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Cases referred to:
Haddy v. Clerk 8 Times Report – 259 at 267.
Eaquer v. Fumiwall – 17 Chanary Division 115, 121.
Ibrahim Saibo v. Oriental Bank Corporation – 3 NLR 148, 150.
Jonga v. Nanduwa 45 NLR 128, 132 (DB).
Alice Nona v. Ranasinghe 1986 Colombo Appellate Law vol.1 page 133, 135.
Kulasinghe v. Abeyratne – 1996 1 SLR 330, 332.
C. F. Kaluwa v. Silva – 70 NLR 479.
Babaris v. Jemma – 1989 – 2 SLR 345.
Cur. adv. vult.
Sanath Jayatilake with S. Tepalangoda and Ms. Priyanthi Guneratne for respond-ent- appellant in CA 300/82 for plaintiff-respondent-applicant CA 301/82.
T. B. Dillimuni with Ms. N. Jayawardane and T. D. P. Dassanayake for originalapplicant-respondent after subtituted applicant-respondent.
Rohan Sahabandu with Athula Perera and Dilhani Perera for intervenient respond-ent.
August 26, 1997.
JAYASURIYA, J.
In these two appeals which were amalgamated and consolidated withthe consent of the parties and counsel appearing for the parties,the original applicant-respondent W. K. Punchi Nona and the fourthrespondent-appellant in appeal No. CA 300/82. S. A. Dissanayakepreferred competing claims to the position and rights of an andecultivator in respect of a paddy field known as Tuttiriyakotuwe Kumburain extent two acres of paddy sowing, situated at Morugama villagein Polgahawela. The aforesaid Punchi Nona is the mother-in-law ofthe said S. A. Dissanayake and the said S. A. Dissanayake is theson-in-law of the aforesaid Punchi Nona. It was conceded andaccepted by all parties that the original ande cultivator of this extentof paddy land was Ranasinghage William Singho, who was also known
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by the alias Punchi Singho alias Podi Singho. The aforesaid W. K.Punchi Nona, the original applicant-respondent is undoubtedly thelawful wife and legal widow of the aforesaid William Singho, theundisputed tenant cultivator of the paddy field in question. The afore-said W. K. Punchi Nona, in her unchallenged evidence, testified tothe effect that during the lifetime of her husband she jointly cultivatedthis paddy field with her husband and that she did so till she was70 years of age. At the time when she gave evidence she was 95years of age and she was afflicted with ill-health and sickness whichprevented her from personally cultivating the paddy field. The law inits wisdom does not compel a person to do what is physically impossibleLex non cogit ad impossibilia. Even where the law imposes a dutyand the party is disabled from performing it, without any default inhim and has no remedy over it, then the law will in general excusehim. Vide dicta of Justice Lawrence in the case of Hadley v. Clarke!"at 267 quoting the decision in Paradine v. Jane. Impotentia excusatlegem. Also note the dicta of Jessel Master of Rolls in Eager v.FurniwalF* at 121.
After the death of the aforesaid William Singho, his unmarried son,who lived with his mother, Punchi Nona, has cultivated this paddyfield up to the date of his premature death. Thereafter, the aforesaidPunchi Nona has permitted her two daughters, her son and her son-in-law to cultivate this paddy field on her behalf. In this setting ofthe background facts, it is relevant to give one's mind to a conceptwhich is implicit in the provisions of the Agrarian Services Act theinterpretation clause in section 68 of the said Act. Even under theprovisions of the Paddy Lands Act when the engagement of hiredlabour resulted in a forfeiture of the rights of the ande cultivator, itwas recognised that the ande cultivator could lawfully cultivate thepaddy field through the agency of the members of the ande cultivator'sfamily. The law in its wisdom views the conferment of ande rightsas a privilege reposed in the ande cultivator for the sustenance ofthe members of his family and if the ande cultivator engaged theservices of the members of his family to cultivate the paddy field,the cultivation of the paddy field was deemed to have been performed
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by the ande cultivator himself. The said legal fiction is manifested inthe law right to the present day, despite the several amendmentseffected to the Agrarian Services Act. Thus, the actual process ofcultivation of the paddy field performed by Dharmaratne, the unmarriedson of Punchi Nona, who lived with Punchi Nona in the same household,is deemed in law to be a cultivation effected on behalf of the aforesaidPunchi Nona and operates in law as a cultivation effected by PunchiNona, the ande cultivator. Even after the death of Dharmaratne whenshe permitted her two daughters, her son and her son-in-law tocultivate the paddy field, they carried on the acts of cultivation onher behalf and in view of the legal fiction, it is deemed to be acultivation effected by her.
When the original tenant cultivator William Singho died, there wasa transmission of his ande rights by operation of law to his lawfulwidow, the original applicant-respondent. Vide section 8 (1) of theAgrarian Services Act. In situations where there is a transmission ofrights by operation of law, such transmission becomes effectiveirrespective of what the parties may actually do by their own positiveacts. Such transmission of rights by operation of law is not dependenton the acts of parties. The judgment of District Judge Berwick layingdown this principle was upheld and adopted in toto by the SupremeCourt in Ibrahim Saibo v. Oriental Bank Corporation at 150. In thatjudgment Berwick, DJ. emphasized that where there is a transmissionof rights by operation of law, such transmission does not depend forits efficacy or validity on the acts of the parties. The principle laiddown by Justice Berwick which was upheld by the Supreme Courtin this judgment was also later followed in the decision in Jonga v.Nanduwa,w at 132 (D. B.) Justice Keuneman remarked: "I am ofopinion that where a constructive trust (ie the creation of rights byoperation of law arises) can be held to exist under our law, then theoperation of section 2 of the Prevention of Frauds Ordinance has noapplication” (what acts the parties may or may not do are irrelevantto the transmission of such rights). Thus, on the death of WilliamSingho, there was a transmission of his ande rights by operation oflaw to Punchi Nona as the lawful widow and the provisions of section
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8 (1) of the Agrarian Services Act lays down merely one conditionas a stipulation to the effect that such successor deriving rights byoperation of law ought to have as his main occupation cultivation andwhose only source of income should be derived from such extent ofpaddy land. The undisputed evidence in this case discloses that duringthe lifetime of William Singho, Punchi Nona jointly cultivated the paddyfield till she reached the age of seventy years: At the time she wasgiving evidence she was 95 years of age and stated that due to herpresent ill-health she was unable to cultivate the paddy field personallyand that she had permitted her son. Dharmaratne, to cultivate thepaddy field and that she had no other employment. The rationalebehind the. above statement of the law enshrined in section 8 (1) isclearly manifest. If an ande cultivator dies and on his death there hadto be actual cultivation of the paddy field by a widow soon after death,an imposter-spoliator would be induced to enter the paddy field onthe event of death taking place and thereafter contend successfullythat as he had prevented the widow from engaging in actual cultivation,that there was no transmission of rights by operation of law to thewidow and the widow was not entitled to institute an application tohave him ejected from the paddy field, as she ceased to be an andecultivator by failing to cultivate the paddy field soon after the deathof her husband. If such an interpretation is adopted by the courts,it would nullify the Roman-Dutch Law principle spoliatus ante omniaVestituendus est and a wrongdoer spoliator would be entitled to benefitby his wrongful act. The law in its wisdom would not countenancesuch a contention.
In regard to this issue of law I wish to refer to two judgments ofthe Court of Appeal and the Supreme Court pronounced in Alice Nonav. Ranasinghet5> at 135 and the judgment pronounced by JusticeKulatunga in Appuhamy alias Kulasinghe v. Abeyratne® at 332. JusticeKulatunga in the Supreme Court judgment has referred to the judgmentpronounced by Justice Tudor Alwis in Alice Nona v. Ranasinghe(supra) and has observed that in that decision the Court of Appealheld that a wife claiming to succeed to her husband as tenant cultivatormust herself continue to be a "cultivator" as defined in section 68 of
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the Agrarian Services Act. In both the aforesaid decisions, there wascircumstantial evidence to establish that the widow had -by her actsabandoned her rights as an ande cultivator after her husband's death,and that the widow had neither claimed nor exercised the rights ofa person who had become a tenant cultivator by operation of law.The facts in the instant case are clearly distinguishable from thosein the above- mentioned decisions. The unimpugned evidence in thesetwo appeals is that the aforesaid W. K. Punchi Nona cultivated thepaddy field with her husband, William Singho, till she was seventyyears of age and at the time she was giving evidence she was ninety-five years of age and afflicted with grave ill-helath and on accountof her ill-health she had permitted her unmarried son who lived withher to cultivate the paddy field on her behalf. The acts of cultivationperformed by her son, (Dharmaratne), in those circumstances enuresto her benefit and in view of the legal fiction recognised in the definitionof an ande "cultivator" in the Agrarian Services Act, those acts ofcultivation are deemed to be acts of cultivation performed by her. Thus,on the death of her husband, his rights as an ande cultivator weretransmitted to her by operation of law and from that date she hascultivated the paddy field through the agency of her unmarried son,her two daughters, her second son and her sons-in-law. Thus, therewas no failure on her part to perform the functions assigned to a"cultivator" under section 68 of the Agrarian Services Act and thecultivation of the paddy field by the members of her family, enuresin law to her benefit. I hold that the two decisions cited by me areclearly distinguishable and have no application to the facts of thepresent appeals.
It is pertinent to consider the corelative and competing claim ofappellant S. A. Dissanayake that he is an ande cultivator of the paddyfield in dispute. He has testified to the following effect: "I state thatI have cultivated this paddy field as an ande cultivator from 1976 tothe present day". There has been no evidence of any acts on thepart of W. K. Punchi Nona which would transmit to the said Dissanayakeduring her lifetime ande rights by adopting any of the modes oftransmission of the rights of an ande cultivator [who is alive] providedfor in the law. Vide C. F. Kaluwa v. Silva,m. The manner of deter-mination of the rights of a living ande cultivator are clearly prescribed
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in the provisions of the Agrarian Services. Act and there could beno lawful determination of such rights except as provided for by thelaw. The said Dissanayake has not testified in his evidence that hehas entered into any contractual relations with the owners of thepaddy field and that by entering into a contract of locatio conductiorei that he had ever become a tenant of the paddy field under itsowners. He merely asserted that his mother-in-law, the aforesaidPunchi Nona, permitted him to cultivate the paddy field in question.He has merely stated thus in his evidence:
On an analysis of his evidence it is clear that he has not enteredinto any contractual relation of locatio conductio rei with the ownersof the paddy field and thus he has never become a contractual tenantof the paddy field in question. Having regard to the effect of theevidence given by him there has been no legal transmission of therights of ande cultivatorship of Punchi Nona during her lifetime onto the said Dissanayake. In the circumstances I hold, as has beenfound by the Inquiring Officer, that his competing claim to ande rightsin respect of the said paddy field is misconceived and unsustainable.The Inquiring Officer has arrived at the following findings:

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These findings are legal and lawful findings which are based onthe evidence adduced at this inquiry. In as much as Dissanayake,the second appellant has taken complete, control over the entirety ofthe paddy field excluding all others wrongfully advanced competingclaims to ande rights on his own behalf and has failed to give anyshare of the produce to his mother-in-law, who is the present andecultivator of the paddy field, the Inquiring Officer has held that therehas been an eviction of the original applicant-respondent from thepaddy field. I agree with the findings reached by the Inquiring Officer.There is no substantial misdirection in point of fact or law in regardto the relevant matters spotlighted by me in this judgment. There isno failure on the part of the Inquiring Officer to take into account theeffect of the totality of the evidence placed before him and there isno improper evaluation of evidence, on a consideration of the orderand the totality of the evidence placed at the inquiry. In the circum-stances, I hold that no error of law arises on this appeal and thiscourt is not entitled to interfere with the findings arrived at by theInquiring Officer – Babanis v. Jemma®. In the result, I proceed todismisss the appeals of the first and second appellants with costs ina sum of Rs. 3,150 payable by each of the appellants to the substitutedapplicant-respondents Ranasinghe Arachchige Somawathie andRanasinghe Arachchige Sirisena.
Appeal dismissed.