Questions and Answers

Ownership of property

Question:

I am a legally adopted girl by a foreign couple in Europe. After 25 years I have found that my biological mother living in Sri Lanka. I built a house for her in her own property as a gift. I want to know whether I can acquire it after the death of my biological mother. She is unmarried and lives with her mother and brothers.

Miranda, Holland

Answer:

According to the Adoption Ordinance after the death of their natural parents adopted children are entitled to acquire the property of the natural parents.

If you can prove she is your natural mother you can acquire property of the deceased natural mother. Otherwise if your natural mother can transfer the property for any person or to you by deed or last will.According to your letter I found that your natural mother is not married. It is not the question to acquire this said property.

Last will

Question:

Can a husband and wife make a last will together?

Ranjani Fernando, Naththandiya.

Answer:

Yes. A husband and wife may both can make their testaments in one and the same paper in writing which is called a joint last will.

Compensation in Industrial Law

Question

Is compensation payable even where termination is justified under the Industrial Law?

Shaliyan Costa, Colombo.

Answer

Decided cases in Industrial Law indicated that at one time compensation was considered to be only an alternative to re-instatement and that where termination is justified a dismissed workman is not entitled to compensation.

In the case of Piliyandala Polgasowita Multi Purpose Co-operative Society vs Liyange 74 NLR 138 state that since the termination of services was justified the employee was not entitled to an alternative order for compensation. In Hillman's case held that where termination on disciplinary grounds was justified, the employee is not entitled to compensation.

The Group Superintendent Delma Group vs the Ceylon Estate Staff 73 NLR 574 held that where termination was due to the closure of the estate and where the employer offered the workmen reasonable alternative employment which the workmen refused, the Labour Tribunal had no power to order the employer to pay an ex-gratia sum of money as compensation for loss of career.

But Saleem vs Hatton National Bank 3 SLR 382 has held that a Labour Tribunal may order compensation upon a termination of services even where such termination is justified without any distinction whether such termination was consequent to a closure of the industry or for misconduct as a disciplinary measure.

This judgement is based upon the rationale that the sprit of labour law is guided by three cardinal principles.

* The Labour Tribunal have wide powers, relief under the industrial.

* Disputes act is not limited to granting benefits which are legally due,

* The duty is Labour Tribunal is to make an order, which appears to be just and equitable.

In this case Judge Kulatunga distinguishes between damages on the one hand which is a recompense given to a party who has been wronged and compensation which includes recompense for pecuniary loss or damage which involve no breach of duty on the other.

Compensation is payable in certain circumstances even where the termination of employment is justified.

Deed of gift

Question

What is deed gift? Please explain to me the grounds of Deed?

Dammi, Panadura.

Answer

Deed of gift is the transferring of a property or thing from one person to another without any valuable consideration and is therefore dominated a voluntary conveyance. The valuable consideration does not necessarily mean a money value. The consideration of marriage, love and affection are regarded as a valuable consideration.

A deed of gift is an agreement whereby a person without being under any obligation to do so gives another without raising or stipulating anything in return. Acceptance by the donee or by some person duly authorised on his behalf is an essential ingredient in a constitution of a valid donation. The consent of both parties is essential in donation.

There must be two parties to the transaction to make a valid gift and until accepted by the donee. The gift is revocable. The donee can accept the gift anytime by deed of the declaration, before the gift is revoked. No deed of gift is completed until it is accepted by the donee and it is immaterial whether this acceptance be signed by the deed itself.

Criminal law

Question

I am the lawful owner of a premises in a certain area in Colombo.

There was a person who is residing next to my premises who is trying to implicate me in a criminal act and sabotage the development of my land by trespassing. Many government sectors and people in the area warned this person not to disturb the peace.

Please let me know what action I am to take to prevent such unlawful activities and violence by this person.

P.B. Wijekoon, Colombo 10.

Answer:

You have not clearly mentioned as to what kind of activities he has committed against you.

But if he is trying to get involved in criminal acts or any acts, in any event you can complain to the Gramasevaka and the Police.

After the police investigation you will be able to understand the nature of activities. Then you can file a case against him after realising the nature of the action.

Warrant

Question:

What are the things that a warrant should contain?

Prisoner, Welikada Prison

Answer:

*The name of the arrested person.

*The reason for arrest.

*The name of the officer who executed the warrant.

*In the case of bailable offences, the endorsement by the MC should be included.

*If it is a non - bailable offence, the issuing of the endorsement is at the direction of the magistrate.

Lispendens

Question:

Please explain as to what are the terms of reference to "Lispendens" in relation to a partition case where the judgement has already been delivered and registered as a "Lis-pendens" under the Registration of Documents Ordinance at the Land Registry, where the land in question is situated.

Are there any provision to incorporate any deeds whether gifted or transferred after "Lispendens" registration?

D. Ranaweera, Colombo.

Answer:

According to the partition action plaintiff has to tender "Lispendens" to the Court together with partition plaint and other necessary documents summons and publication. After tender all the documents to the Court, first of all Court will send "Lispendens" to the Land Registry for registration.

After receiving the such documents, Land Registration has to register it correct follow and the correct street where the land is situated.

Then Land Registrar has to inform to the particular District Court regarding such registration.

After the delivered of the judgement, there is no provision to register the "lispendens" in partition action. Any person can make gift or transfer after the filing of the partition action.

Anyhow meaning of the registration of the Lispendens prevent the purchaser to buy particular land.

Anyhow person can transfer or gift such property to any person whatsoever that person has to disclose in their deeds that particular partition action is existing.

When the person is buying property partition case is existing your predecessor has to get his rights from the final degree of the partition action if he gets his rights from the partition action you will become a sole owner of that property otherwise you are losing.