21 February 2019
TO WHOM IT MAY CONCERN
STATEMENT BY MRS GAJALAKSHMI PARAMASIVAM – 6TH RESPONDENT
In the matter regarding - Administration of the Intestate Estate of
Mr. Subramaniam Yoganathan of Vaddukoddai
Civil Appellate High Court Case – APPEAL/74/2016; LA 33/2015
D.C.Mallakam Case No. T/55/2011
(i) On 07 September 2018, The Second Appellant-6th Respondent, Mrs Gajalakshmi Paramasivam, personally visited the Mallakam Court Registrar who confirmed that he and the lawyer of the other heirs were collecting monies and that he intended to pay the creditors. The Second Appellant confirmed that this was ADMINISTRATION which was categorically ruled out in the case of Sri Lankan wealth
(ii) On 09 September 2018 – the Second Appellant wrote to the Mallakam Court Registrar which in essence gave the following message:
[As urged by me on Friday, I ask that you go through the Petition carefully to confirm the ‘fact’ that the Petitioners sought NO Administration but only Certificates of Heirship. We objected and claimed that Administration was needed and we claimed that we would Administer. As you rightly kept highlighting we were apparently ‘dismissed’ by both courts. But in substance we confirmed the need for Administration for about 95% of the intestate estate. I confirm my belief that without our objection – the Court would have paid monies claimed as deductions – shown as due to themselves and their silent partners. Please note that the Petitioners did not state that we – the 5th and 6th Respondents should not be granted probate/administrative authority. They categorically claimed that the law did NOT require Administration because the assets in Sri Lanka were less than Rs 4,000,000. They were using your dependence on them to pretend that the Court did not need the Authority of the Law to Administer the Estate. Effectively, you have taken our entitlement by demoting us and then taking over our position without the authority of the law. ]
On 18 February 2019
1. The 5th & 6th Respondents (Mr & Mrs Paramasivam) together with the lawyer for the Petitioners – Mr SD Yogendra, attended the Registrar’s Office of Mallakam District Court
2. The NSB pass book that was allegedly to collect the monies in relation to the Estate showed no record of any transactions. Mr. Yogendra ‘waited’ in the Registrar’s office for the passbook to be updated and since we were, through our Attorney at Law joint-signatories to the motion to execute the Court order as interpreted by the Registrar of Mallakam District Court, we (Mr & Mrs Paramasivam) also waited with Mr Yogendra – while the Registrar was taking over from the lady Registrar on ground floor - who as per my understanding, was going on maternity leave.
3. The Registrar during his conversation with Mr Yogendra stated that he needed approval from the regular judge to release the monies. That judge was on leave and the judge who made the ruling on 18 February was acting.
4. After some time, Mr Yogendra got up and declared that he was leaving. The Registrar kept asking Mr Yogendra repeatedly to take a seat but Mr Yogendra continued to stand. After Mr Yogendra left, the Registrar asked Mr & Mrs Paramasivam to leave the room and wait outside, to learn about his Administrative decision in relation to the monies collected.
5. Mrs Paramasivam said words to the effect ‘We are offended by the fact that you kept asking Mr Yogendra to take a seat but are chasing us out of the room once Mr Yogendra left’ . The Registrar stated words to the effect that it would be inappropriate for us to observe the inner workings of his office. While waiting Mr & Mrs Paramasivam heard the Registrar asking the Bank Officer – over the phone to bring short-eats in compensation for being late in responding to his call. That kind of chit-chat was going on while we the members of the Public were waiting for completion of an Administrative process that ought to have been completed soon after 19 March 2018 when the Civil Appellate High Court – Jaffna delivered its judgment .
6. The Registrar asked us who we were and Mr Paramasivam said that he was the brother of the Deceased and I said that I was the 6th Respondent in the matter concerned.
7. Mrs Paramasivam asked the Registrar whether he could call and inform them of the outcome of the Administrative process. The Registrar said it was not up to him to call but that we could call and find out.
8. Mr & Mrs Paramasivam left the office and the courts
9. Mrs Paramasivam rang at 1521 hrs and 1605 hrs respectively and was informed that the Registrar had gone out. Mrs Paramasivam left a message. The Registrar called Mrs Paramasivam and informed her that the judge had ruled for his decision to be declared in open court on 20 February 2019.
On 20 February 2019
10. Mr & Mrs Paramasivam presented themselves at the Registrar’s office around 0900 hrs. They were informed that the Registrar had not returned from Vavuniya where his family was, but was expected soon. Mrs Paramasivam explained that the Registrar had called her and informed her that the ruling would be in open court – and asked whether it was necessary for our lawyer to be present. The officer said he did not know – but that we could find out details from the record room.
11. At the record room we were informed that the matter was listed for that day but that the Registrar’s report had not been filed
12. Mrs Paramasivam asked the officer who seemed the most senior officer present and seemed to take charge – as to whether a lawyer was needed – the officer said it was not up to him to advise us on that.
13. Mr & Mrs Paramasivam noticed the presence of the Registrar around 0915 hrs and walked into the outer registry and asked the Registrar whether he had given his report. The Registrar said that it was not our business and for Mr & Mrs Paramasivam to wait in the open court .
14. Mr & Mrs Paramasivam instructed their attorney to be present in court
15. Many matters – mostly criminal – were called and we waited. At one point, Mrs Paramasivam felt the need to go and check with our Attorney who being aged was slow in moving and he said for her to go back to open court and that he would follow.
16. Within minutes of Mrs Paramasivam’s arrival back in court – matter T55/2011 was called. Both – Mr & Mrs Paramasivam registered their presence. The Officer Assisting the judge asked us who our Attorney was and Mrs Paramasivam stated that it was Mr Anthony George and confirmed that he was on his way. The Officer stated that civil matters could not be taken up without an attorney at law.
17. Mr & Mrs Paramasivam informed Mr Anthony George about this and Mr Anthony George stated that the file would be listed as ‘pending’. After waiting in the courtroom for some time - Mr Anthony George went to the Record room to find out why the matter was not called again. Mrs Paramasivam accompanied him. He was informed by another lady attorney at the record room that his matter was placed as ‘pending’. But the record officers informed Mr Anthony George that the file had come back and that he needed to move another motion.
18. The Officer Assisting the judge thus far, was replaced by another officer who seemed to be the one who stated in the record-room that the officer said it was not up to him to advise us on whether or not we needed a lawyer to represent us in Court. The first officer clearly articulated the rule whereas the record-room officer stated that it was not his business.
19. Mr Anthony George asked to read the report by the Registrar. The officer picked up the file and walked into the registry. Mr Anthony George and Mrs Paramasivam followed. After discussing with another officer in the Registry – the record-room officer asked us to wait. Mr Anthony George asked them to ask the Registrar on ground floor but was asked by the officers to wait for the main Registrar to come back. We were informed that the Registrar had gone on ‘writ service’ and would be back in about an hour. Mr Anthony George asked Mrs Paramasivam whether she could ‘wait’. Mrs Paramasivam declined – stating she had other urgent matters to attend to. Mrs Paramasivam asked Mr Anthony George to inform her over the phone. Mr Anthony George informed the clients that the Registrar had not returned and promised to pursue it today.
SUMMARY OF DISORDERS OBSERVED
a) The Officer in the Record room needed to know that we needed a lawyer in civil matters taken up before the judge. If this is fundamental requirement of the Court, every Administrative Court Officer needed to have knowledge of this and consider it her/his duty to inform the Public who make inquiries in this regard.
b) The report required to be submitted by the Registrar was NOT in the file that came back from the Courtroom to the Record room. Mr Anthony George, the attorney representing Mr & Mrs Paramasivam confirmed this morning at about that he was yet to sight that report. It is therefore in breach of process to require the litigants to move another motion in regards to the matter, which was already heard and decided on – as mentioned in paragraph 2 above. The one who initiated the last process was the Registrar and it is his duty to move the matter again for whatever approval he needs in executing the court order.
(i) Mr & Mrs Paramasivam question the validity of Mallakam Court’s authority to collect monies and Administer this ‘settlement’ . The basis of their logic lies in the fact that the Civil Appellate Court decided on 28 September 2016, that the decision delivered by the Mallakam District Court on 26 February 2015 was interlocutory. (page 10 of the judgment):
‘In these circumstances on the basis of the Chettiyar Vs Chettiyar (Supra) case cited above, the order from which Leave to Appeal is sought is in effect an interlocutory order. Accordingly the Preliminary objection raised by the 1st and 2nd Respondents-Petitioners and 3rd, 4th, 5th and 6th Respondents-Respondents is overruled.’
(ii) From then onwards, the hearing was by the Civil Appellate High Court which did hear arguments in relation to the following:
· Whether or not Administration was mandatory (paragraph 4 on page 11 and paragraph 7 on page 12 of the Judgment)
· The share that each heir was entitled to as per Thesawalamai Law (second last paragraph on page 18 of the Judgment)
(iii) The Appellants therefore concluded that both issues were heard by and final decision was delivered by the Civil Appellate High Court of Jaffna.
(iv) The third last paragraph of the final judgment on last paragraph of the Judgment concludes as follows:
‘Having examined the evidence I am inclined to agree with the findings of the Learned Trial Judge and I conclude that issues had been correctly answered. Therefore, I affirm the judgment of the learned District Judge, Mallakam, dated 26.02.2015’
(v) The last paragraph of the final judgment on last paragraph of the Judgment directs as follows:
‘Registrar is directed to forward the Original record along with this judgment to District Court, Mallakam.’
To my mind, once the Appellate Court ruled that the decision delivered by the Mallakam District Court was interlocutory as presented in c (i) above, the Mallakam District Court did not have the Jurisdiction to continue with the matter as if the decision was final judgment. If we had appealed the decision as final – then the Civil Appellate Court would have had the jurisdiction to revert the matter and its settlement to Mallakam District Court. We successfully applied for leave to appeal on the basis that the decision was interlocutory. The Civil Appellate Court continued to hear the rest of the case and delivered judgment on 14 March 2018. That judgment was delivered by Civil Appellate Court which completed the primary trial and therefore did not have the authority to dismiss the Appeal and revert the matter to Mallakam District Court.
The reasoning and the wording of the judgment of the Mallakam District Court and that of the Civil Appellate Court are totally different. In addition the words ‘Having examined the evidence’ confirm that the Civil Appellate Court did hear the case on the basis of evidence and not on the basis of ‘error of facts’. As per my knowledge an appeal is valid on the basis of ‘error of law’ and / or ‘error of facts’. Evidence confirms ‘facts’ and not the other way around. The reason for this is the common belief that does not require proof and therefore evidence. A court that heard and examined evidence is considered to have gone through primary hearing. That court ‘owns’ the decision delivered – as per the mind of the judge before whom objective and subjective evidence is presented. The strength of the subjective evidence depends on the common belief between the judge and the lawyer presenting the argument as well as the witnesses.
His honour Judge Elancheleyan for example mentions in second last paragraph on page 18 as follows:
‘The evidence of the 02nd and 04th Respondents-Respondents and that of the 06th Respondent were closely examined by the Learned District Judge, on the issue whether the 02nd and 04th Respondents were given dowry and came to a conclusion, that issue was not proved by the 05th and 06th Respondents-Petitioners. The 06th Respondent –Petitioner gave evidence in Court and said that her husband had only told her about the dowry, given to the 02nd and 04th Respondent-Respondents, which the Judge classified as hearsay and rejected the evidence and held the Estate should devolve equally to the four siblings of the deceased.....’
If his honour Judge Elancheleyan had heard the evidence – he may have received it at a different level of common belief – which is the foundation formed intuitively through common belief. The validity of that common belief in this instance would include cultural norms on which Thesawalamai is based. His honour Judge Elancheleyan accepted the interpretation of the District Court Judge’s common base with me – thereby denying me the higher level commonness that I was entitled to from a higher level judge and practitioner of the laws concerned.
In addition, as raised by our Counsel Mr Kanagasingham, in District court hearing, the communication was between husband and wife and therefore was belief based. We were entitled to be taken as being bound by common belief until proven otherwise. Hence it is unjust to dismiss our evidence as hearsay, which dismissal has the effect of considering our marriage relationship as being not valid in a court of law. The transcript of the proceedings would confirm that this was the case at Mallakam District court. But in the civil appellate court his honour Judge Elancheleyan did dismiss the statement by the petitioners that this was second marriage to me – by asking the question ‘it’s lawful marriage ; isn’t it?’ Once his honour so accepted – his honor had the duty to dismiss the definition that my subjective evidence was ‘hearsay’. No belief based evidence can be defined as ‘hearsay’. Belief is the basis of acceptable ‘ subject evidence’ and hence unless there was independent objective evidence to prove that our marriage was not valid before the law – the court did not have the jurisdiction to qualify as hearsay – the information shared between husband and wife.
Effectively therefore the wording ‘The Appeal is dismissed’ has no value in law – i.e. bad in law. Since we did not go ahead with the appeal the to the Supreme Court – we are entitled to the decision by the Civil Appellate Court and execution of the lawful part of the decision by the Civil Appellate Court
The handling of this matter by the Mallakam District Court is beyond its jurisdiction. It is hoped that steps are taken so that this kind of negative experience ceases from now on, in our Motherland.
Mallakam District Court
21 February 2019
Administration of the Intestate Estate of
Mr. Subramaniam Yoganathan of Vaddukoddai
Civil Appellate High Court Case – APPEAL/74/2016; LA 33/2015
D.C.Mallakam Case No. T/55/2011
I refer to your Administration of the above matter .
I confirm that at the request of Mr SD Yogendra, the attorney at law representing my siblings, I agreed to present a joint motion at Mallakam District Court to withdraw my share of the Sri Lankan wealth of my brother Mr Subramaniam Yoganathan. But the way my wife and I were treated by you and your staff has been very disrespectful and as a Senior Citizen of Sri Lanka, I strongly object to your lack of commitment to duty as a Public Administrator.
I attach a list of the disorders that my wife and I observed and experienced, on 18 February when we attended your office along with Mr Yogendra and on 20 February, when my wife and I attended Courts as per your information that the Judge had listed the matter to be heard on 20 February 2019, in open court.
In addition, my wife advises me that it is in breach of Due Process for this matter to be considered by the Mallakam District Court and I attach her statement in this regard.
CC: Hon Justice Nalin Perera – Chairman
Judicial Services Commission,
P.O. Box 573, Hulftsdorp – Colombo 12– Sri Lanka
The Secretary, Judicial Service Commission Secretariat; P.O.Box 573, Hulftsdrop,
Colombo 12.Sri Lanka;
Civil Appellate High Court of Jaffna
Front Street ; Jaffna
Mr Subramaniam Tharmalingam& Mrs AnandaletchumyTharmalingam , c/o Mr D Yogendra, Attorney at law
Mr Yohananda Sabanathan &Mrs Saraswathy Sabanathan; 37, Old Field Road; Seven Hills; NSW 2147; Australia
Mr Sellathurai Mahadevan & Mrs Sakthidevy Mahadevan; Kallady Lane; Vaddukoddai South West; Northern ProvinceSri Lanka
Mr. Visvalingam Manivannan – Attorney at Law, Jaffna
Mr SD S D Yogendra - Attorney at Law,
M/S Mather & Ramanathan
Attorneys at Law and Notaries Public
136, Hultsdorf St
The Hon Dr Suren Raghavan
Governor – Northern Province – Sri Lanka
The Hon C V Wigneswaran – Immediate past Chief Minister – Northern Province – Sri Lanka
The SecretaryBarAssociation of Sri Lanka No.153, MihinduMawatha,
Colombo 12, Sri Lanka
The Hon Justice Elancheleyan, C/o Judicial Services Commission Sri Lanka
Mr J Gajanithibalan – District Court – Mallakam - C/o Judicial Services Commission Sri Lanka
Duty Judge – 18 February 2019 - – Mallakam District Court - Mallakam