This is a case in which when a father passed away some of the children together with the mother gifted a property to another sibling. However when the father’s estate came up for administration they attempted to deprive the person to whom they gifted the property — a property with building on Galle Road — of her share to the estate, stating that she had already been gifted a property, and had waived her right to any other part of the estate.
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The individual who was gifted the house however took up the position that she is entitled to her share of the estate as well, and though the District Court held with her, the Court of Appeal did not.
She appealed to the Supreme Court (Senaratne v. Senaratne and Others - SLR - 57, Vol 1 of 2002 [2001] LKSC 31; (2002) 1 Sri LR 57 (August 29, 2001)) contesting the decision of the Court of Appeal.
Here are excerpts from the Supreme Court judgement:
“The petitioner-administratrix then filed an affidavit with accompanying amended Final Accounts on 15th March, 1985, along with a scheme of distribution of the Estate leaving out the 1st respondent appellant and took up the position that premises No. 82, Galle Road was gifted to the 1st respondent-appellant by the other heirs on the 1st respondent promising to convey her rights in the remainder of the estate to the other heirs and was, therefore, not entitled to share in the remainder of the estate of the deceased.”
When the matter was taken up in District Court the 1strespondent took up the position that she had not given any undertaking to forfeit her share of the estate when she was gifted the house at Galle Road, Bambalapitiya. Furthermore, she took up the position that the others had gifted their shares of that said property to her as her dowry upon marriage.
She would have been happy that the District judge agreed with her position. However, the other party filed an appeal with the Court of Appeal where things took a different turn. The original petitioner in the DC case her mother passed away, and one of the lady’s siblings was duly named by Court as substituted petitioner.
The Court of Appeal determined that the 1st respondent (in the DC case), the said lady in whose favour the DC judgement went, waived her rights to the share of the estate when she accepted the deed of gift of the house and property at Bambalapitiya.
The Supreme Court case record states:
“An appeal was filed from the said order and the Court of Appeal set aside the order of the District Court on the ground that “the learned District Judge has erred in rejecting the evidence of the petitioner and two other heirs that the 1st respondent did renounce her right to her share of the intestate property having already accepted as a gift by deed No. 2642 the residential premises referred to therein and which formed part of the intestate estate”.
The Court of Appeal essentially reaffirmed the position of the siblings and held that the scheme of distribution for administering the estate suggested by them was correct and that the 1st Respondent was not entitled to any additional part of the estate of the deceased.
The Court of Appeal determined this on the strength of evidence led, that the lady referred to above as the 1st respondent had renounced her right to the property in various other ways than by a notarially attested document.
The Supreme Court was not inclined to accept the position taken by the Court of Appeal as recorded in the former’s judgement:
“It is settled law that where a person dies intestate leaving behind heirs, that the property belonging to the estate vests in the heirs according to the law of inheritance immediately, on death. Thus, for this reason alone the judgement of the Court of Appeal must necessarily be set aside since a 11th share of the entire estate of A. M. Senaratne had already vested in the 1st respondent-appellant and any such rights in the immovable property can be divested by the 1st respondent-appellant only by a notarially attested document.”
Basically the Supreme Court Bench essentially took up the position that since there was evidence given by the other witnesses who were heirs to the estate and respondents in the original case in the DC that the 1st respondent had stated, when the deed of gift was made, that “she would not ask for any part of the Estate”, they could have easily got her to write by deed her part of the Estate to them, but did not.
Some of the heirs had given evidence that the 1st respondent could not be trusted and that if she is given the house and property in Bambalapitiya, she may ask for a share of the rest of the property that constitutes the Estate. With this apprehension in mind they had initially been reluctant to sign the deed of gift to her, but eventually did.
Basically the Supreme Court took up the position that if they knew this could happen they should have got her to write the rest of the property that she may claim from the Estate to them by deed, which they did not do. The Supreme Court of course puts these matters across in the judgement in different language but it’s what can be discerned from the judgement record.
Court was of the view that the other siblings had the idea that when they were being gifted properties that those would be all they would be given but they had ‘projected’ this sentiment onto the first respondent. Court used different words in judgement such as ‘unilateral’.
Here are some excerpts from the Supreme Court judgement record:
“This is further confirmed by Ingrid Manel (at page 326) that “when these two houses were given it was on the promise that we would not claim from the other properties. We should be contented with what was given to us”. , . . “It does not matter. What I got is enough”.”
Court judgement emphasized that none of the evidence of the petitioner or other witnesses strengthened the case of the petitioner. Moreover the judgement noted that the oral evidence had come 13 years after the land had been gifted, but there was no document at the time the land was gifted that was notarially attested i.e in the form of a deed, that would establish conclusively that the 1st respondent agreed to write off her share of the Estate because she was gifted the house in Bambalapitiya by the others.
The judgement states:
“In the circumstances the question of the 1st respondent-appellant giving evidence to refute such unreliable evidence does not arise. It must also be borne in mind that there is no contemporaneous notarially attested document gifting such 1/10 share in the remainder of the estate to the other heirs and that the oral evidence relating to the same has come thirteen years later.”
The judgement of the Court of Appeal was set aside and the order of the District Court restored. The 2nd respondent-substituted petitioner was ordered to pay a sum of Rs. 10,500 as costs.
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