098-NLR-NLR-V-61-K.-NADESAN-Petitioner-and-V.-RAMASAMY-Respondent.pdf
hades an v. Ramasafny
406
1957 Present : H. N. G. Fernando, J., and T. S. Fernando, 3.K. NADBSAN, Petitioner, and V. RAMASAMY, Bespondent
8. C. 510—Application for Conditional Leave to appeal to the Privy Councilin 8. C. 571 jD. G, Point Pedro, 4187
Privy Council—Application for leave to appeal—Subject matter of dispute—Valuethereof less than Rs. 5,000 at date of plaint—Right of appellant to prove sub-sequent appreciation in value—Appeals (Privy Council) Ordinance (Cap. 85),Schedule, Ride 1.
It is open to a party seeking leave to appeal to the Privy Council, in acase where the subject-matter has been valued in the plaint at a figurebelow that of Us. 5,000 specified in Rule 1 of the Schedule to the Appeals(Privy Council) Ordinance, to show that the value has appreciated since thedate of the plaint and is now over Rs. 5,060. In such a case he can claim thatleave to appeal should be granted as of right.
H. X. G. FER2TANDO, J.—Nodes an v. Ramaeamy
407
Application for conditional leave to appeal to the Privy Council.
Walter Jayawardene, with K. Shanmugalingam, for the plaintiff-petitioner.
8. Sharvananda, for the respondent.
Gw. adv. vvM,
December 17, 1957. H. N. G. Ferhaitdo, J.—
The petitioner in this application has applied for leave to appeal toHer Majesty in Council against a judgment of this Court dismissing an.action filed by the petitioner as plaintiff in the District Court of PointPedro for a declaration of title to certain property. The property inquestion was a l/10th share of Lot 3 in Survey Plan No. 424A of 20thMarch 1944, and it is conceded that the petitioner had in his plaintvalued this share at Rs. 4,500. The petitioner however states in hispetition that the value is now over Rs. 5,000 and claims that leave toappeal should be granted as of right. The only ground on which therespondent opposes the application is that the value as stated in theplaint was Rs. 4,500 and that the actual market value is now underRs. 5,000. Each of the parties has produced affidavits in support oftheir respective valuations.
It would seem at first sight that when the subject matter of a disputeis land, the plaintiff who values the land at a figure below that ofRs. 5,000 specified in Rule 1 of the Schedule to the Appeals (PrivyCouncil) Ordinance Cap. 85, should be held bound by that valuation. Itseems arguable that if the value of the property at the time of the plaintwas under Rs. 5,000, then for the purposes of the jurisdiction not only ofthe original Court, but also of appellate Courts, the value of the matterin dispute should be taken to be its original value. Rut the authoritiesupon which the petitioner has relied are not in accordance with the viewI have just mentioned, and I am not inclined to question the correctnessof those authorities. De Alwis v. Apjpuhamy 1 was a case where twoplaintiffs had valued a land at Rs. 16,000 and where the appellants(children of the original 2nd plaintiff) had become substituted plaintiffs.It was common ground that the matter in dispute in the appeal waswhether or not the appellants were entitled to a 1/4 share. Upon theapplication for leave to appeal being made, the appellants sought toshow that the current value of their 1/4 share was over Rs. 5,000.Although the appellants were privies of the original plaintiffs, they wereafforded an opportunity of establishing the current value of their share.This Court on that occasion considered a number of Ceylon and Indianauthorities and declared that the established principle is c< that wherethere has been no fraud on the part of the appellant and where he has 1
1 {1929) 30 N. It. R. 421.
408
BC. 3ST- G. FERNANDO, J.—Nadesan v. Ramasamy
not consented to a lower -valuation for the purposes of obtaining someadvantage, he should he allowed to prove the value of his claim, and thatwhere that value has- appreciated since -the date when action was firsttaken, he should he allowed to prove the value at the time of appeal.”This principle was re-iterated by Soertsz, J. in Setha v. Muttuwa 1> althoughin that case the original valuation at a figure below Its. 5,000 had beenmade not by the applicant for leave to appeal but by his opponent.
There is no averment by the respondent that the original valuationwas fraudulent or intended to reduce the amount of stamp duty payableon the proceedings, and it may well be the case that the higher valuationswhich appear to have been made at recent dates on behalf of the peti-tioner can be accounted for by reason of the appreciation in value ofland in the area concerned. In fact the affidavit of one of the valuerscontains statements to that effect.
To. the circumstances I would .follow the procedure which was adoptedin the decision I have first cited and remit the case to the District Judge,Point Pedro, with instructions to hold a summary inquiry into the valueas at the end of the year 1956 of the l/10th share of the land and tomake his report to this Court.
T. S. PEKNAirno, J.—I agree.
Case remitted for inquiry.
1 (1942) 44 N. L.B. 49.