of the prisoner that the entries should pass as the act of any other Held that the offence of forgery was not committed. LAYARD, C.J.-Section 453, clause 1, of the Penal Code, so far as it relates to a document executed by the authority of a person other than the person who wrote it, refers to a document made by one person as by the authority and according to the direction of another, and intended to pass as the act of the other; not to a document purporting merely to be made by ono man by the order or authority of another for the use of that other. MIDDLETON, J.-Forgery involves the representation that the thing written is the handiwork of some one other than the actual writer, or that it purports to be written as the act of another and so by his authority. It must appear on the face of it that it is intendod to pass as the act of another person. Where a person who has authority to make entries in the account books of another person, subject to a certain procedure, makes an unwarranted entry in his books, he does not intend it to be believed that it was an entry made by any other person than himself, or as representing on the face of it as an authority given by any other person. Where a jury has convicted on counts of an indictment which disclosed no offence according to law, the Supreme Court has no power to amend the indictmont after verdict, nor, on a case reserved under the provisions of section 355 of the Criminal Procedure Code, to dissect the verdict of the jury and appropriate the finding of guilty to the amended counts. THE KING v. KANJAMANADAN Fraud Resulting trust-Colourable assignment-Right of assignor to cancel No man can set up his own fraud to avoid his own dead. But where the purpose for which an assignment is made is not carried into execution and nothing done under it, the mere intention to effect an illegal object, when the assignment is executed, does not deprive the assignor of his right to recover the property from the assignee who has given no consideration for it. It is not sufficient to prove that there was some sort of a benami (confidential) transaction between the assignor and the assignee, as the result of which the assignee did not pay the whole consideration for his purchase. There must be proof that no consideration was paid for it. Persons who engage in transactions involving a resulting trust must not expect the assistance of courts to extricate them from the difficulties in which their own improbity has placed them. The rigors of section 547 of the Civil Procedure Code do not apply to the case of persons who had died before the passing of the Civil Procedure Code (1889). PAGE 52 DE ZILVA v. CASSIM, District Court, Colombo, 11,747 Full Court decision See PRESCRIPTIVE TITLE Gaming Ordinance No. 17 of 1899-Keeping a common gaming house-Gaming at a social and religious function-Custom of the Moors. The accused, having agreed with a Tamil Hindu boy, who had no abode and was a mere wanderer about the market places in Colombo, to give him five rupees and clothing in consideration of his being circumcised, took him to a house already engaged by the 230 173 accused and had him circumcised. At the time the police mado a raid on the house, there was a promiscuous gathering of Moors, Malays, Sinhalese, and Tamils engaged in playing cards for money, and a commission of four cents per rupee was charged and collected from all who came and won money. It also appeared that after the circumcision the boy was left to wander about as before. Held, that the ceremony of circumcision was a mere blind to cover the gambling, and that the house was kept as a common gaming place. SANSONI v. SAMSON, Municipal Court, Colombo, 3,772 PAGE 376 Ganja Ordinance No. 5 of 1899, s. 16-Land planted with cannabis indica. Ganja is the flowering or fruit-bearing tops of the female hemp plant. Possession of the plant itself is not an offence under section 16 of the Ordinance No. 5 of 1899. Goods UKKU BANDA v. UKKU BANDA, Police Court, Kandy, 28,143 205 See ARRACK FARM Guardian Guardian ad litom-Action against minor represented by guardian ad litem-Fiscal's sale of minor's property-Effect of such sale. The sale of a minor's property held under a writ of execution issued in a case wherein the minor was represented by a guardian ad litem is good and valid. A guardian ad litem represents the minor not only for the purpose of conducting the case, but also for purposos of a sale in execution of the minor's property. PONNAMPALAM v. APPUKKUDDY, Court of Requests, Jaffna, Where a wife, deserted by her husband and maintained by her father for several months, claimed alimony from the date of her husband's desertion to the institution of the action and for further alimony till the decision of the action, Held, that she could claim alimony only from the date of the institution of the suit, and that, as her husband was willing, after action brought, to live with her but she refused to do so, she could not recover alimony beyond the date of such refusal. 2. MENIKA v. DISANAYAKA, Court of Requests, Kandy, 1.840 -Divorce-Effect of, on common property of spouses. A wife divorced from her husband on the ground of her adultery forfeits for the benefit of the innocent spouse everything which, according to the Common Law or by ante-nuptial contract or otherwise, would have been acquired by her out of his property. Where D got judgment against L, the only child of A, deceased, who owned a certain land, and seized in execution a moiety of this land as the property of L, and K claimed it as the purchaser 32 273 345 133 under a writ issued in another case against the administrator of Held, in an action brought by D against K to have an undivided DONDRIS v. KUDATCHI, Court of Requests, Gallo, 2,474 Illegal arrest See JURISDICTION Irregularity See JUDGMENT Hypothecary action— Action by mortgagee against mortgagor of land and parties in possession. The plaintiff, as mortgagee, sued the mortgagor on his bond, and joined in the same plaint the second, third, and fourth defendants as parties in possession. The second defendant claimød under, and the third and fourth defendants adversely to, the mortgagor. Held, that such an action was maintainable, and that a mortgagee who seeks a decree rendering the mortgaged property specially bound and executable for the debt is entitled to sue a party in possession of the land and claiming to be the owner of it, even though he denies the right of the mortgagor to hypothecate it. FONSEKA V. PEIRIS et al., District Court, Kalutara, 2,350 See ACTION ON MORTGAGE BOND Insurance See MARINE INSURANCE Joint obligation— See LEASE Intestacy Proof of title through intestate Judgment 1. -Consent decree entered by mistake—Suit for partition of land according to consent degree in previous case-Prayer of defendant in reconvention to cancel such decree-Propriety of such prayer. Where a defendant prayed in reconvention that a decree which had been duly entered by consent against him by a District Court in a previous suit, and upon which the plaintiff based his present action for partition of a land against the defendant, be cancelled on the ground that his consent had been given by mistake, Held, that such prayer was in the nature of a claim of restitutio in integrum, and that that remedy could not be sought in a separato action, but must be obtained in the same action by application on due material to the Supreme Court for an order to the Judge of the lower Court to investigate the matter. SINNATAMBY v. NALLATAMBY, District Court, Colombo, PAGE 107 290 337 262 10 321 16 102 139 3. -Issue of writ of execution-Appeal against decree-Sale by Where a writ of execution was allowed upon a judgment against the defendant, and the defendant appealed against the decree and the Supreme Court set it aside a week after the Fiscal had sold his property, and where, such sale being confirmed by order of the District Court, the defendant moved it to vacace its order of confirmation, Held, that the Court had power to vacate its order. DE MEL 1. DHARMARATNE, District Court, Colombo, 13,718.. -Irregularity of a Judge writing out his judgment after he become functus officio-Consent of parties. A judgment written out by a Commissioner of the Court of Requests after he become functus officio, and delivered by his successor in office with the consent of the parties, is bad, notwithstanding such consent. A judgment which does not deal with the point in issue and does not pronounce a finding definitely on them is not a judicial pronouncement. Nor must judgment be delayed for two months after the case has been closed. TIKIRI MENIKA . DIONIS, Court of Requests, Galagedara, PAGE 274 337 Judgment-creditors See CONCURRENCE.. 280 Jurisdiction— 1. of Court of Requests-Testamentary suit in District CourtAction in Court of Requests by legatee against executor of executor for recovery of interest of money due to him--Value of claimLiability of executor of executor. Where a testator bequeathed a share (valued at Rs. 1,800) of his estate to a person, and testamentary proceedings were pending in the District Court, Held, that it was competent to the legatee to raise in the Court of Requests an action against the executor of an executor for the rents and profits of his share due to him for certain months, aggregating in value Rs. 213; and that in the absence of any proof that one of the original executors of the testator was still alive and officiating, the defendant was responsible for the money claimed. LUCIA GUNERATNE . DE ALWIS, Court of Requests, Colombo, --of District Court-Illegal arrest at Male (in the Maldive Islands) and false imprisonment on board a warship—Release in Colombo harbour-Damages. The defendant, who was the Commander of a British man-ofwar which had been commissioned by the Government of Ceylon to proceed to the Maldive Islands to ascertain whether a letter purporting to have been sent by the Sultan to the LieutenantGovernor of Ceylon was a genuine document or not, caused the plaintiff, a British subject, to be arrested, under the belief that the plaintiff had created a disturbance among the people of the Maldivian State by interfering with its political affairs, and brought the plaintiff in the defendant's ship to the Colombo barbour, and discharged him after two and a half hours detention there 76 Held that, by reason of the detention in the Colombo harbour, the District Court had jurisdiction in respect of the plaintiff's claim for damages for such detention, and that in assessing such damages the antecedent acts of arrest at Malé and the conveyance of the plaintiff as a prisoner thence might be taken into consideration. Held further, that no man, not even the Sovereign, could arrest and imprison a British subject except under and by virtue of due process of law, and except in accordance with express legislation, and that the arrest and detention of the plaintiff was contrary to the principles of the British constitution, and rendered the defendant liable in damages. NUSSERWANJEE v. FIELD, District Court, Colombo, 13,648 --Action by trustee of Buddhist vihare to set aside leaseImprovident execution of lease by incumbent Residence of defendant and site of lands leased outside jurisdiction of Court-Grounds of cause of action-Civil Procedure Code, s. 9. In an action raised by a trustee of a Buddhist vihare against the lessee of certain lands to set aside the lease which had been executed within the jurisdiction of the District Court of Kandy, on the ground that such lease was an improvident alienation, Held, that the true definition of “cause of action was the act on the part of the defendant which gives the plaintiff his cause of complaint; that the wrongful act of the defendant complained of was done in Kandy, in accepting a lease from the incumbent which the latter had improperly executed for his own benefit and to the injury of the vihare; and that therefore the District Court of Kandy had jurisdiction to try the case, notwithstanding that the residence of the defendant and the site of the lands were beyond its limit 3. RANGHAMI v. KIRIHAMI, District Court, Kandy, 14.928 Kandyan Law— 1.————-Inheritance-Diga married daughters. 2. A diga married daughter does not forfeit her right to inherit lands which had been acquired by her mother, or to which her mother had succeeded collaterally, or otherwise than by inheritance from her father. DINGA. HAPUWA, Court of Requests, Kurunegala, 8,908 -Diga married husband's interest in his deceased wife's estate-Partition Ordinance, No. 10 of 1863, s. 2-Land belonging to plaintiff in common with others-Meaning of "belong to him ---Right to maintain partition suit. The property of a Kandyan diga wife dying intestate, leaving children by two beds, descends per stirps to such children. Failing children, her ancestral property goes over to the next nearest line which issues from the common ancestor, subject to a life interest in favour of her diga married widower. The diga married widower as owner of a life interest is not entitled to a partition suit. APPUHAMY 2. HUDU BANDA, Court of Requests, Badulla, -Acquired property of deceased intestate-Right thereto of illegitimate children—Rights of widow and sister of deceased. The Kandyan Law does not distinguish between illegitimate children born in adultery and merely natural children. If there be no widow and legitimate children, the illegitimate children succeed to the whole of the acquired property of the father, movable and immovable. Mahatmaya v. Banda, 2 S. C. R. 142. approved. PAGE 290 357 100 242 |