THE NEW LAW REPORTS OF CASES DECIDED BY The Supreme Court of Ceylon, | The Court of Vice-Admiralty in the Island, and His Majesty WITH DIGEST. EDITED BY P. RÁMANÁTHAN, C.M.G., K.C. of the Inner Temple. VOLUME VII. COLOMBO: H. C. COTTLE, ACTING GOVERNMENT PRINTER, CEYLON. Overhanging eaves of plaintiffs roof-Right of defendants to have them cut off-Long use of eaves by plaintiff over defendant's landCondition on which defendants' right to cut off plaintiff's eaves may be exercised. Where the defendants built a house adjoining the plaintiff's by fixing their beam and wall plates at the end of the plaintiff's eaves which overhung the defendants' land, and afterwards, desiring to build a taller house, notified to the plaintiff that they would remove his eaves Held, that the plaintiff was bound to remove the overhanging eaves, notwithstanding that they had existed in that position for thirty years, and that if the defendants built a house on their own land they should so finish and roof their houses that the plaintiff's wall would not suffer in consequence of the removal of the eaves. SAIBO. JAMES APPU et al., Court of Requests, Matara, 887 .. Adjournment— See EVIDENCE Administration 1. Effect of Civil Procedure Code, s. 547. 2. Whenever it appears in the course of a case that administration is necessary, it becomes the duty of that Court to see that the provisions of section 547 of the Civil Procedure Code are complied with before the litigation proceeds any further. That section is statutory bar to the maintenance of an action for the recovery of any property belonging to the estate of any person dying testate or intestate which amounts to or exceeds in value the sum of Rs. 1,000, unless grant of probate or letters of administration have been issued to some person as executor or administrator of such testator or intestate, and cannot be got over by the implied or express agreement of the parties to the action that, as the title to be deduced from the deceased is not contested his estate need not be administered. GUNARATNE v. HAMINE, District Court, Kurunegala, 1,828.. Civil Procedure Code, ss. 727, 740-Irregularity of procedure- Where a child of a deceased intestate applied under section 726 of the Civil Procedure Code for a judicial settlement of the account of the administratrix, and the administratrix failing to show cause against the citation issued by the Court in terms of section 727, the Court directed her on 9th March, 1900, to account on or before 6th April, 1901, on the footing that the applicant was an heir of the deceased to the extent of an undivided onethird of his estate; and where, her account being tendered, the Court ordered on 11th May, 1900, that the allegations of the 239 147 299 parties for and against such account be heard on the 21st August, and after some delays and postponements certain issues were agreed to as regards the inventory of property and final account, nd the administratrix suggested a further issue regarding the estate of the interest of the applicant in the acquired property of. the intestate; and where it was contended that the minor's status as an heir to one-third of the estate had been determined by the order of Court dated 11th May, 1900, Held, that such order was not resjudicata between the parties, and that the time for deciding upon the validity of the applicant's claim was open till the stage for distributing the estate comes. D. C. Kurunegala, 576, 3 N. L. R. 173, explained. Held also that, as the account filed showed that there was a surplus distributable to creditors or persons interested in the estate, it was the duty of the Court to issue a supplemental citation under section 727 requiring them to attend the accounting. Such a course would enable the Court, after ascertaining what was due from the administratrix to the estate, to further proceed to administer the estate in manner provided by section 740. Re Intestate Estate of KIRIYA. BILINDA . UKKU, District See FRAUD PRESCRIPTION PAGE 353 230 279 Alimony See HUSBAND AND WIFE Appeal— 1. Order of Commissioner of Court of Requests as to costs-Appeal therefrom-Civil Procedure Code, s. 247. No appeal lies to the Supreme Court from an order of a WIJESINGHE v. PAULICKPULLE, Court of Requests, Chilaw 2. Appealable time-Date of judgment--Subsequent entry of decree.Civil Procedure Code, ss. 5, 188, 754-Leave to appeal. The period of ten days fixed by section 754 of the Civil Procedure Code for appealing runs from the date of the judgment pronounced by the Court. The petition of appeal must be presented to the Court of the first instance within that period. The entering up of the decree is a ministerial act of the Court, and under section 188 the decree, although entered at a later date than the date on which the judgment has been pronounced, must bear the same date as the judgment and be in conformity with the judgment. In the event of there being great delay in preparing and signing the decree, whereby the appellant was prevented from filing his petition within the time fixed by section 754, the Supreme Court can always give leave to appeal notwithstanding lapse of time. EMALISHAMY . EGO APPU, District Court. Galle, 6,222 3. Petition of appeal-Presentment to the secretary-Civil Procedure Code, s. 754. If a petition of appeal is in order and purports to be signed by the appellant's proctor, it should be received by the secretary. It is not necessary for the proctor himself to personally hand it to the secretary. DEMMER v. GUNAWARDANA, District Court, Galle 6,978 38 19 286 4. Petition of appeal-Form of Civil Procedure Code, s. 7 8- Plain and concise statement of grounds of objection to the decree Responsibility of proctor. 5. Section 758 of the Civil Procedure Code, which directs that a petition shall contain " a plain and concise statement of the grounds of objection to the decree appealed against, necessarily implies that there shall also be a sufficient statement of the facts of the case and of the judgment. The petition of appeal should not plunge in medias res and state only the grounds of objection to the decree. The proctor who prepares such a petition will not be allowed his costs, and the petition itself may altogether be rojoctød. DINGIRI APPUHAMY v. SIYATU, District Court, Kogalla, 1,426 Right of respondent, at hearing of the appeal, to object to part of the Neither the provisions of section 772 nor clause (e) of section SUBERAT MENIKA v. BARON, District Court, Ratnapura, See PARTITION Arbitration Award out of time--Power of Court to extend the time allowed for making the award, after it has been filed in Court-Civil Procedure Code, 8. 691. The District Court has no power to extend the time allowed for making an award after the arbitrator has filed his award in Court. Once the award is made, its power to enlarge the time for making it is gono. PUNCHINONA v. ELIAS APPU, District Court, Colombo, 470 PAGE 304 348 216 351 Arrack 1. Ordinance No. 13 of 1891- Licence to distil issued to B on behalf of A-Liability of licensee to make returns of distillation. Where, at the request of A, an arrack renter, the Government Agent issued under Ordinance No. 13 of 1891 a license to distil arrack, wherein the name of the proprietor of the distillery was stated to be "B, for A," and A was charged with having failed to make a correct return as required by section 16 of Ordinance No. 13 of 1891, Held that, though the license was issued to B for A, yet B was the actual licensee, and as such was responsible for the returns. Semble, that the making of incorrect returns is not an offence under section 18 of the Ordinance. VIGORS v. DE SOYSA, Police Court, Kalutara, 5,014 2. Ordinance No. 13 of 1891, s. 9-Retail sale contrary to licens Upon a license to sell arrack by retail issued in terms of section 9 of the Ordinance No. 13 of 1891, it is not competent to the licensee to sell arrack at any other price than the one mentioned in the license. Jansz v. Gregoris, 4 N. L. R. 359, overruled. BANDARANAYAKA v. SOYSA, Police Court, Colombo, 13,551 193 305 |