Gajalakshmi Paramasivam – 20 May    2016

http://austms.blogspot.com.au/

The ‘Only’ Syndrome

We have/had the ‘White Only’ syndrome in Australia. We have/had the ‘Sinhala Only’ syndrome in Sri Lanka. We have/had the ‘Tamil Eelam Only’ claim in Northern Sri Lanka. Recently I realized that we have also the ‘Legal Only’ syndrome in the Judiciary. Is this a problem or an opportunity? When the law clearly states that it is ‘only’,  then it is an opportunity to those within the ‘only’ group. When the law is silent then the advantage is to those who have majority power at that time at that place. This could even be ‘outsiders/opposition’ to the ‘only’ group – for example – ‘Sinhala Only’ when it was no longer the law, became an opportunity to the Tamil Tigers who became its ‘Other side’ and claimed ‘Tamil Eelam Only’. Towards this they claimed ‘Separation’ – as Pakistan did.

Whether we as individuals like it or not, whether we approve or not, such separations do happen. The Common example I am highly conscious of now, is the Judicial system. In Australia where my active participation in the Judicial system began, Judges usually were driven by the stronger legal power in the court which is often  not the stronger legal mind in court.  Below is an extract from my Naan Australian book which includes publication of this discovery:

‘After Justice Hughes  decided to judge against  me in the District Court in matter 4054/04 on 11 July 2006 (my cousin Krishna’s birthday. My cousin was killed by the Tamil Tigers in the Tiger Capital of Vanni which was Krishna’s home as a farmer) Justice Hughes and Barrister Hodgson registered the following in the Public records:

Hodgson: Your Honour said dismiss the notice of motion, I think it should be dismiss the proceedings.

(The State of New South Wales applied for a dismissal of my compensation claim through a notice of motion and if the notice of motion was dismissed then my claim ought to have gone to trial. On the basis of  the real value of the matter it ought to have gone to trail and this is what was being mouthed by the Judge’s subconscious mind because the judge as a man past his retirement age, was merely occupying the seat and was not strongly committed either way)

Justice Hughes: Well I should have said – I make orders in favour of the notice of motion brought by the applicant to the notice of motion and I strike out the notice of motion pursuant to s 13.4—

Hodgson: Sorry, your Honour again there are – your Honour said strike out the notice of motion.

Justice Hughes: Strike out the further amended statement of claim on 9 May 2006, pursuant to part 13 rule 13.4 Now was there another order you wanted?

(So, Hodgson only had to ask and it shall be given and Hodgson did ask. It was as if he was drafting the orders and Justice Hughes was merely signing them)

Hodgson: Yes, that the proceedings be dismissed pursuant to part 13 rule 13.4

Justice Hughes: I’ve done that, yes.

Hodgson: And I seek an order for costs of the proceeding as well as of the further amended notice of motion and I seek to hand up an offer of compromise which bears the date of 13 February 2006, together with a covering letter to the plaintiff of the same date. The plaintiff has those. I seek an order that the costs be on the indemnity basis from the day on which the offer was made.

(The offer had no genuine substance to it but was for each party to pay their own costs and for me to withdraw the application. In other words that offer was to register Hodgson’s claim for indemnity costs. This tactic has been used in the current matter before the Federal Magistrates Court also – by the Crown Solicitor offering me $10,000 to withdraw my case. The ‘offer’ dated 22 August 2007,  stated ‘If you agree to execute the attached deed of release and to a dismissal of your complaint my client in exchange will (1) Pay you $10,000 and (2) Provide you with a letter from the Police stating “The NSW Police regret and are sorry that you consider that you were subjected to racial discrimination and hurt and humiliation when you were arrested and chargted on the following dates – 15/9/2003; 10/11/2003; 22/10/2004; 29/10/2004. Ms Barbaro stated also ‘my client does not concede that the police have discriminated against you’. I wrote back ‘If your client genuinely believes that it has NOT unlawfully discriminated against me, it is unlawful of your client to offer me any compensation – by of money or status. It is unlawful, as per fundamentals of Accounting to pay without ‘consideration’. It is in breach of Section 12 of the Public Finance & Audit Act by which your client as well as you are governed.’ I did not know about this indemnity tactic back in July 2006. But Natural Justice did protect me.  I wrote also ‘Ms Barbaro, your client claimed costs in relation to Common Law claims and estimated costs in relation to Equal Opportunity / Unlawful Discrimination currently before the Court. Those costs are in the ratio of 17:4, indicating the status of Equal Opportunity in relation to Human Rights. Your offer to me is about half the estimated costs in this Equal Opportunity Court, for your client. In summary, your client is claiming double my status in an Equal Opportunity Court and 9 times my status in Human Rights Court. If you truly believe that they are right and I am not of a higher status than your client in this court, then my standards are different to yours and we are not bound by Common Higher Goals / Value. To my mind, the claim of 6.8 million dollars is genuine. If you client(the State of NSW)  pays me compensation, your client gets shared ownership in my investment in Equal Opportunity which is also investment in Anti Terrorism. Had we actively practiced Anti Discrimination laws we would not be anxious of Terrorism.  Ms Barbaro, you are a young female. What have you done to uphold elimination of gender based discrimination in your workplace which is also the workplace of the Police? Women Police Offices have publicly complained of unlawful discrimination. The more you cover up blind subjective discrimination the more terrorism you promote. Fears of terrorism are also terrorism through effects. I am a female and I seem very ethnic. If you shared your female status with me you would appreciate for yourself how much more courage I would have needed to uphold my Truth in the face of all this intimidation. I am doing what you and other Australian females have failed to do. I am doing so through deep trauma – for each time I recall my loss I do feel traumatized. You provoked it in many ways through your application for summary dismissal and requirement to pay costs in advance. If you lived with me without any other distraction you would appreciate my pain much more than you do now. Ms Barbaro, if I were after money, I would have continued in my Senior Accountant’s position with UNSW Medical Faculty and possibly continued to work for Professor Bruce Dowton who did value my work highly. I would then have earned at least a million dollars from then to now. I ‘paid’ / ‘forewent’ all that to prevent Terrorism in Australia. My court records would confirm that I shared this Anti Terrorism wisdom with Mr. Howard and his government in 1999 – two and a half years before 9/11 and its consequences. Likewise, with the UNSW Vice Chancellor. I do believe that even though I was ignored and ‘dismissed’ my committed work has minimized the damage for Australians. If I accept your offer, I would throw away my own work and it could easily be owned by rebels fighting for self-determination – as happened in Sri Lanka. Whether we are good or bad, our genuine work automatically produces costs and benefits; problems and opportunities. I would rather continue to keep my ownership as Australian than let go irresponsibly – knowing the strong possibility of it being hijacked by others less ‘Australian’ than myself. The more pain I endure to keep our weaknesses ‘inside’ but not suppressed but as visible parts of our system – being balanced by the strength of my work – the more AUSTRALIAN I feel. I urge you to educate your client to become self-balancing.’  )

Judge Hughes: What do you want to say about costs Ms Paramasivam. What do you want to say about costs?

I said ‘I have nothing to say’.

Justice Hughes: Nothing to say? Well say what you were going to say before, that you did your best.

I said ‘I did your Honour’

Justice Hughes: In that case I won’t order indemnity costs. It is sufficient the costs should be paid on the usual basis that the person was after all, self-represented despite her receiving advice from Blake Dawson Waldron to discontinue her claim. She nevertheless went ahead with it. I do not think it is appropriate and it would seem to be punishing the self represented plaintiff too much if I ordered indemnity costs. True it is that the costs of this action must have cost the State a lot of money with all the pleadings and the court times and everything else that’s been going on. Nevertheless, I order that costs be on the usual basis.

The costs subsequently claimed by the Crown Solicitor’s office appeared to be indemnity costs. But the way the system goes – no one seemed to care.

Now I appreciate more and more the value of Lord Krishna’s message – to focus on our Duty rather than on the outcomes. There needs to be a Position for there to be Duty. There needs to be a Structure for there to be a Position. Hence, when we do our Duty – we become part of the System that is the Source of that Duty.

In the above example, Lawyer Hodgson for the Government and therefore the State – was the system that Judge Hughes became part of.  By sticking to my interpretation of the Law – I became part of the official system – as it ought to have existed and not as it existed due to lesser legal minds.

Recently, I went through disappointment when our own lawyer failed to include my points in submitting our arguments in a Testamentary Proceeding. My arguments were based on my own interpretation of the applicable laws. The base as usual was my real life  experience. The young lawyer, would want to ‘win’ as per his understanding of how the legal system worked in Jaffna. Submitting my points may have been difficult if according to him, the system did not have the resources to hear a matter at the escalated level. The issue was about whether a Court order was final judgment or interlocutory order.  When I sought to Appeal I was informed by our lawyer in the primary court – that the matter was interlocutory. I did not question it but given that our lawyer failed to even get us a copy of the judgment within a week – I set out to work on the Leave to Appeal Application myself – using the Australian format in the confidence that in Australian Courts – my Administrative work was well accepted.  The papers were filed within the stated time  of 14 days – even though we received the Order was pronounced on 26 February 2015 but a copy was handed over to our Attorney at law – only on 12 March 2015. The Application for Leave to Appeal was filed through our General Attorney on 16 March 2015 – effectively giving us 4 working days. It was a marathon effort with me in Australia and our General Attorney with least exposure to the Court system being in Vaddukoddai. But we did it – thanks to the good Administrators within the Court system – which included the Duty Judge. I feel that victory even now. Other wins and losses as declared by those who are ‘outsiders’ to that system as it exists in reality – are truly secondary.

The Common problem as I identify here in Sri Lanka is this ‘Only’ system. Those who make it ‘law’ confirm their own inability to manage wider cultures. If the legal fraternity is one culture – the executive government is of another. Like religions they are different in terms of the laws and principles used at their highest levels. In terms of  Courts – the executive is replaced by the citizen who must remain independent of the legal profession to produce outcomes that would strengthen society as a whole. Unpracticed theory / law – used by the legal fraternity must not be indiscriminately mixed with Experience based facts presented by the citizen. The point at which the two – investment in law and the real experience by the citizen outside the influence of the Judiciary / Legal Profession – is the Natural point of generation of  higher powers through which that society is governed. Like man and woman the two are Equal parents of those higher values.

 The real judgments are the express outcomes of these values. I found that in Sri Lanka, where lay litigants are not valued in the Court rooms – the legal profession hijacks the matter and that there is little space for the citizen to bring her/his experience as is to the Courts. One of the areas through which I highlighted this was as the Affidavit Evidence (us being the 5^th and 6^th Respondents):

[It is submitted that having taken over the inquiry through Section 532 of the Civil Procedure Code,  the Court had the Duty of Care to summon all Respondents to Court to determine the Rights of all Heirs and also to determine the issue of Administration. Until such process is exhausted the inquiry process does not get completed and any order prior to such completion becomes Interlocutory in Nature. The Rights of both opposing parties need to be facilitated to be on Equal Footing – for the picture of the issues between the parties to be complete at that level

The  Affidavit of the 5^th  Respondent who expressly Objected, was set aside, in breach of the above principle -  even though,  on the face of it, it failed to confirm the deficiencies claimed by the Petitioners.

Section 438 of the Civil  Procedure Code provides as follows:

438. Every affidavit shall be entitled as in the court and action in which it is to be used, and shall be signed by the declarant in the presence of the court, Justice of the Peace, or Commissioner before whom it is sworn or affirmed.

It is apparent on the face of the documents (Pages 168 to 173  of the Brief)  that the Petitioners applied their standards which are facilitated by Section 439 as follows:

‘439. In the event of the declarant being a blind or illiterate person, or not able to understand writing in the language of the court, the affidavit shall at the same time be read over or interpreted to him in his own language, and the jurist shall express that it was read over or interpreted to him in the presence of the court. Justice of the Peace, or Commissioner, and that he appeared to understand the contents; and also that he made his mark or wrote his signature in the presence of the court, Justice of the Peace, or Commissioner. And when a mark is made instead of a signature, the person who writes the marksman's name against the mark shall also sign his name and address in the presence of the court. Justice of the Peace, or Commissioner.’

The above mentioned  Affidavit  by the Petitioners under Section 439, is almost identical to the Application / Petition itself – at pages 158 to 161 of the Brief.  This confirms that the Affidavit was prepared for the Petitioners by their Legal Attorney. Hence the question arises as to whether the matter is to be constructed at the level of the Petitioners’ investment in law or at the level of the 5^th Respondent’s investment – which is close to that of the Deceased? The completion of the ‘issues between the parties’ needs to happen at the higher level of application of the law – which it is submitted is through Section 438 for the 5^th Respondent – the closest sibling representing the investment in Higher Education by the Deceased. This is in conformity with the principles underpinning Thesawalamai which has been claimed to be applicable to all parties to this matter. It is submitted that this upholds the Spirit of the Court which ordered that husband of the 1^st Petitioner be included as Petitioner.

(s) It is submitted that this Testamentary case is primarily about the Rights of the Deceased to show the  value of his life to the society that he was a part of.  This value is best shown through the structure that he developed during his lifetime. The division of status and property reflects how the heirs carry this forward to benefit current society and the younger generations. ]

The Confirmation that the Legal fraternity ‘took-over’ the matter was highlighted  through the submission ‘The above mentioned  Affidavit  by the Petitioners under Section 439, is almost identical to the Application / Petition itself’  . But our lawyer who also would have done likewise, left this out of his submissions. Unless the Judge himself were looking to improve the legal system – it is highly likely that the Judge also would have left the above submission out of his picture of the matter.

When the Judicial system fails to deliver Justice Independent of the Legal Profession – the outcomes often result in weakening of law and order in that part of the society that takes only the ‘outcomes’ home. Those who work the system from their official position – however small that position may be – become part of the higher system – as owners. In Prescriptive rights – the ownership of the belief based occupier – is determined on the basis of two elements – that the possession needs to be adverse to and be independent of the legal owner. The Experience based litigant in Court is entitled to ownership where her/his practice of ownership rights – have been adverse to and independent of the legal profession.

Hence, in terms of ‘Eelam Only’ / ‘Sinhala Only’ / ‘White Only’ claims – they need to be adverse to the wider official laws as practiced by the global community that we are officially a part of and they need to be independent of  the legal owners who are ALL citizens of that country. None of the above claims qualified – as per the latter criterion of independence. Those who find ‘fault’ with the other side are also confirming that they need their ‘other side’ to be complete and independent. To the extent the Tamil politicians find fault with Sinhala regimes – the Tamil Community is disqualified from claiming belief based ownership of areas where they are in majority. Belief is Absolute and not Relative. Hence no ‘Eelam only’ but ‘Eelam also’. Eelam only does not have the approval of Natural Justice due to its lack of independence of the official system.  As a lay litigant – to me the place that confirms the value of this Absolute Power would naturally be driven by good order. All others who think they are the top-leaders due to ‘separation’ but continue to use the old order of thought – end up confusing themselves and the societies they are a part of.  Such minds naturally infect those who ‘leave the process to them’ but take only the outcomes home.

Those who are clever and ‘produce’ wins to take them ‘home’ without sharing with all those who fought and sacrificed for their own independence – disqualify themselves from governance positions.  It’s that sharing that makes us eligible to hold governing positions. 

 POINTS OF SUBMISSION BY GAJALAKSHMI PARAMASIVAM

IN THE CIVIL APPELLATE HIGH COURT OF JAFFNA,

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

Application for Leave to Appeal - In the matter of Intestate Estate of the  late SUBRAMANIAM YOGANATHAN of

Kallady Lane, Vaddukoddai South West Vaddukkodai - Case No. T/55/11 Heard in the District Court of Mallakam

Subramaniam Paramasivam

          Gajalakshmi Paramasivam

Both of 906/56, Carr Street

Coogee; NSW 2034; Australia

1^st& 2^nd Appellants

Testamentary Jurisdiction   - District  Court

of Mallakam Case No. T/55/11                                                                                  ----vs------                                                                                           

1.       SellathuraiMahadevan

2.       SakthidevyMahadevan

Both of Kallady Lane

Vaddukoddai South West

Vaddukkodai

1^st and 2^nd Respondents

                                                                                                            3.SubramaniamTharmalingam                                                                                                                                                  4.Anandaletchumy Tharmalingam

Both of 25/1A, Subodharma Road, Dehiwala

3^rd& 4^th  Respondents

5.TharmaratnamSabanathan

6.SaraswathySabanathan

Both of 37, Old Field Road

Seven Hills; NSW 2147; Australia

5^th& 6^th  Respondents

Points for Submission due by 18 May 2016

1.      A. The first Objection raised by the Appeal Respondents was that the Leave to Appeal Application was out of time.

B. (i) The original Application for  Leave to Appeal was filed within the prescribed period of 14 days under the Authority of Section 754 (2) of the Civil Procedure Code which states as follows:

“Any person who shall be dissatisfied  with any order made by any original court in the course of any civil action, proceeding, or matter to which he is or seeks to be a party may prefer an appeal to the Court of Appeal against such order for the correction of any error in fact or in law with the leave of the Court of Appeal first had and obtained.”

(ii) As stated on page 7 of that Application :

‘ the Order was   delivered by his Honour  Justice  Gajanithibalan  in the Testamentary Proceedings bearing  No. T/55/11  in the District Court of Mallakam,  on Thursday 26 February 2015.’

The Application was filed on 16 March 2015 which is within the 14 day period. Copies were duly forwarded to the Respondents.

(iii) When the Application for Leave to Appeal came before the Court on 06 May 2015, the Court required amendments to be made to the format of the Application and this was NOT objected to by the Appeal Respondents, who were present in Court.

(iv) The Application was duly amended and filed within the time allowed by the Court

(v) It is submitted that the Claim of the Counsel for the Appeal Respondents in Court on 26 April 2016 – that the ‘Application wasAbandoned’ has the effect of misleading the Court. The claim made on that basis - that the Amended Applicationwas  ‘out of time’ is without the support of law.

2.      A. The second point of Objection was that the decision by the primary Court was a final judgment and was not an interlocutory order.

B.(i) There were further discussions on this point – and the Counsel for the Appeal Respondents made reference to the Rights of the parties being an issue.

Rights Base

(ii) There are two aspects to this matter from the angle of the 5^th& 6^th Respondents:

(a)    That Administration is required

(b)   The share of the Estate that the siblings are entitled to. The Petitioners have claimed Equal share whereas the 5^th& 6^th Respondents claim that only the two surviving Brothers are entitled to half share each.

The Appellants claim that the Decision by the Court is Interlocutory  due to the inquiry stagnating at the level the Petitioners perceive/d their entitlement rather than at the level – that represents the Rights of the Deceased, carried forward by All his Heirs.  It is submitted that the picture presented to Court is complete only when both sides present at the same level – i.e. using the same set of laws and principles applied on Equal footing to present ‘facts’ and ‘beliefs’the parties consider to be relevant. Hence the Rights based approach to determining whether the Order was Interlocutory or Final Judgment.  It is submitted that a final judgment needs a completed picture of relevant facts and beliefs presented to Court and the Appellants claim that this is NOT the case with this Decision due to the following reasons:

On page 4 of the Application filed on 16 March 2015, the Appellants state as follows:

‘Errors in  Law -  If the Proceedings  were driven by Cause of the action – then the following approach seems the better fit:“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”   - Lord Alverstone, C.J cited  by Hon Justice SaleemMarsoof, P.C., J.  inStorerDuraisamy Yogendra  &BalasubramaniamThavabalan  Vs. VelupillaiTharmaratnam’

In S. RajendranChettiar& Others Vs S. Narayanan ChettiarS.C.Appeal No. 101^A/ 2009,  escalated from  the  District Court case No. 428/T in the District Court of Colombo in relation to the  Trustees of the Hindu Temple known as “Sri Kathirvelayuthan Swami Kovil”,   Dr.Shirani A. Bandaranayake, J includes in her Honor’s reasoning the following:

[After an examination of the aforementioned decisions, Sharvananda, J., (as he then was) had held that for an ‘order’ to have the effect of a final judgment and to qualify to be a ‘judgment’ under section 754(5) of the Civil Procedure Code,

“1. it must be an order finally disposing of the rights of the parties;

2. the order cannot be treated to be a final order if the suit or action is still left a live suit or action for the purpose of determining the rights and liabilities of the parties in the ordinary way;

3. the finality of the order must be determined in relation to the suit;

4. the mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case, is not enough to make an order, a final one.”]

The following Reasoning is presented including in the consciousness of the above

(iii) The Reasons why the  Appellants consider that their Rights were denied by the Court

(a) The 1^st Appellant ( 5^th Respondent in the primary case), being the brother of the Deceased, filed an Affidavit in support of his Objection to the Petition.  The 5^th& 6^th Respondents sought  Administrative rights to the Intestate Estate. They claimed also that the two sisters who were dowriedincluding by the Deceased were not entitled to share in the wealth of brothers as per section 7 of Thesawalamai Regulation. This aspect was inquired into at length , by the primary Court.Questions 6 & 7 listed on page 40 of the brief refers.

(b) The questions raised by the Court on 06 September 2012, in relation to the Objection and supporting Affidavit filed by the 5^th& 6^th Respondents are listed on pages 39 & 40 of the brief.

(c) The Petitioners/1^st& 2^nd Appeal Respondents, claimed that the said Affidavit (page 198 of the Brief) was not signed in the presence of Attorney at law or Justice of the Peace and also that the details of such an official were not evidenced to have been made at the same time the 5^th Respondent signed the Affidavit.  (Pages 44, 45 of the Brief)

(d) Accordingly, the Petitioners moved to have the Objection and the supporting Affidavit of the 5^th Respondent, set aside in limine

(e) In his Order dated 8 November 2012, his honor confirms that the Counsel for the 5^th& 6^th Respondents/Appellants had requested that approval be granted for the filing of an Affidavit to suit the expectations of the Court in relation to format.(ref page 110 of the Brief)

(f) His Honor through Order dated 08 November 2012 (Page 106 of the Brief) declined

(g) In his reasons for Order dated 28 February 2013, his honor confirms (ref page 114 of the Brief) that the Petitioners failed to file consent from respondents / fellow heirs.

(h) His honor stated that the decision regarding the Affidavit  would be delivered at the end of the hearing. (Page 115 of the Brief)

(i) In his decision dated 26 February 2015, his honor states that the said Affidavit was set aside through the order on  28 February 2013. (page 151 of the Brief)

(j) It is submitted that - given that this decision regarding the Affidavit was pronounced for the first time on 26 February 2015 – by its very nature – it makes the decision that includes this pronouncement a part of itself – Interlocutory.

(k) His honor himself highlights the dilemma faced  by the Court if the Order to set aside the Affidavit and therefore the Objection were pronounced at that stage of the hearing. (paragraph 3 of Page 114 of the Brief). His honor categorically mentions that the need would arise to inquire into the Rights of the 5^th and 6^th Respondents if the Objection was set aside. His honor goes on to register his conclusion that the Court recognizes the need for an inquiry.

(l) To accommodate the above, the Court invokes Section 532 of the Civil Procedure Code which states:

‘532. In all cases of application for the grant of the administration of the deceased's property, whether with or without a will, the court shall, whether a respondent is named in the petition or not, direct notice of the order nisi in the form No. 84A in the First Schedule to be advertised twice in a local newspaper before the day of final hearing, the newspaper to be selected by the court with the object that the notice of the order nisi should come to the knowledge of all persons interested in the administration of the deceased's property: Provided that the court may in its discretion direct such other mode of advertisement in lieu of such publication as to it seems sufficient.’

(m) Section 533 spells out the duty of the Court  as follows:

‘533. If on the day appointed for final hearing, or on the day to which it may have been duly adjourned the respondent or any person upon whom the order nisi has been directed to be served, or any person then appearing to be interested in the administration of the deceased's property, satisfies the court that there are grounds of objection to the application, such as ought to be tried on viva voice evidence, then the court shall frame the issues which appear to arise between the parties, and shall direct them to be tried on a day to be then appointed for the purpose under section 386’

Section 386 states:

‘386. When the respondent's evidence has been taken, it shall be competent to the court, on the request of the petitioner, to adjourn the matter to enable the petitioner to adduce additional evidence; or, if it thinks necessary, it may frame issues of fact between the petitioner and respondent, and adjourn the matter for the trial of these issues by oral testimony. And on the day to which the matter is so adjourned, the additional evidence shall be adduced, and the issues tried in conformity with, as nearly as may be, the rules hereinbefore prescribed for the taking of evidence at the trial of a regular action.’

(n)  Despite the above provision for additional evidence to be adduced by the Petitioners – the Petitioners did not produce any such evidence in relation to Administration of the Estate. The 4^th Respondent Mrs.SaraswathySabanathan was facilitated to give evidence to confirm as to whether her share of the family wealth was  dowry or donation. It is highlighted that Section 525 provides as follows:

‘If the petitioner has no reason to suppose that his application will be opposed by any person, he may file with his petition an affidavit to that effect, and may omit to name any person in his petition as respondent.’

No such Affidavit  was filed in Court .

Section 530 provides as follows:

(1)   When any person shall die without making a will or where the will cannot be found, every application for grant of administration of his property may be made to the District Court of the district within which the applicant resides, or within which the deceased resided at the time of his death or within which any land belonging to the deceased's estate is situate. Every such application shall be made on petition by way of summary procedure, which petition shall set out in the numbered paragraphs prescribed by section 524, the relevant facts of the absence of the will, the death of the deceased, and the heirs of the deceased to the best of the petitioner's knowledge; the petition shall also show the character in which the petitioner claims and the facts which justify his doing so. The application shall also be supported by sufficient evidence, to afford prima facie proof of the material allegations in the petition, and shall name the next of kin of the deceased as respondents.

(2)   (a) The petitioner shall tender with the petition

(i)             the declaration of property referred to in section 30 of the Estate Duty Ordinance or in Section 24 of the Estate Duty Act, as the case may be, in triplicate for transmission by court to the Commissioner-General of Inland Revenue.

(ii)            draft order nisi;

(iii)           the requisite stamps for the order nisi and service thereof;

(iv)             draft notice of order nisi in the form No. 84A in the First Schedule, and (a) proof of payment of the estimated charges to cover the cost of advertising the notice of order nisi in a local newspaper as hereinafter provided.

(b) The petitioner may also tender with the petition the consent in writing of such respondents as consent to his application

( o) The 4^th Respondent was not included as Petitioner and hence on the face of the documents before the Court – the 4^th Respondent is an Opposing Party to the Petitioners. This distinction in the position allocated to respective participants is significant in framing the issues arising between  the parties as per Section 533 of the Civil Procedure Code. The issue when divided through the Common Measure / Law – needs to show Equal Rights as the Petitioners, to the Respondents in Common. Section 525 facilitates the leaving out of any person as Respondent. If indeed the 4^th Respondent was believed  to be supportive of the Petitioners – that sister ought to have been included as Petitioner or that sister ought to have given her consent in writing to the Petitioners. The way it stands – the 4^th Respondent whose husband is listed as a Creditor (page 182 of the Brief) - has dual position – (i) by Right to participate in the Administration and her silence in terms of consent to the picture drawn by the Petitioners – the 4^th Respondent confirms her position as Respondent but  (ii) in terms of the share  of the Estate – the 4^th Respondent – by agreeing with the picture drawn by her sister and her husband as Petitioners – becomes part of the Petitioning Group.

(p) The Counsel for the Appeal Respondents stated in Court that he represented all Respondents. If Due Process had been followed – the question needs to be asked as to why the other  Respondents failed to participate in the primary process – starting with giving their consent in writing as facilitated by Section 525? The same Counsel representing both – the Petitioners and the other Respondents in the Appeal confirms the position that none of the Respondents other than the 5^th& 6^th Respondents / Appellants is interested in participating in the Administration of the Estate. It is significant to note that the 4^th Respondent confirmed that the 1^st Respondent and she were part of an intermarriage arrangement. (Page 124 of the Brief) – thereby indicating greater possibility of collusion which would alienate the 5^th and 6^th Respondents.

(q) It is submitted that having taken over the inquiry through Section 532 of the Civil Procedure Code,  the Court had the Duty of Care to summon all Respondents to Court to determine the Rights of all Heirs and also to determine the issue of Administration. Until such process is exhausted the inquiry process does not get completed and any order prior to such completion becomes Interlocutory in Nature. The Rights of both opposing parties need to be facilitated to be on Equal Footing – for the picture of the issues between the parties to be complete at that level.  

(r) The  Affidavitof the 5^th  Respondent who expressly Objected, was set aside, in breach of the above principle -  even though,  on the face of it, it failed to confirm the deficiencies claimed by the Petitioners.

Section 438 of the Civil  Procedure Code provides as follows:

438. Every affidavit shall be entitled as in the court and action in which it is to be used, and shall be signed by the declarant in the presence of the court, Justice of the Peace, or Commissioner before whom it is sworn or affirmed.

It is apparent on the face of the documents(Pages 168 to173  of the Brief) that the Petitioners applied their standards which are facilitated by Section 439 as follows:

‘439. In the event of the declarant being a blind or illiterate person, or not able to understand writing in the language of the court, the affidavit shall at the same time be read over or interpreted to him in his own language, and the jurist shall express that it was read over or interpreted to him in the presence of the court. Justice of the Peace, or Commissioner, and that he appeared to understand the contents; and also that he made his mark or wrote his signature in the presence of the court, Justice of the Peace, or Commissioner. And when a mark is made instead of a signature, the person who writes the marksman's name against the mark shall also sign his name and address in the presence of the court. Justice of the Peace, or Commissioner.’

The above mentioned  Affidavit by the Petitioners under Section 439, is almost identical to the Application / Petition itself – at pages 158 to 161 of the Brief.  This confirms that the Affidavit was prepared for the Petitioners by their Legal Attorney. Hence the question arises as to whether the matter is to be constructed at the level of the Petitioners’ investment in law or at the level of the 5^th Respondent’s investment – which is close to that of the Deceased? The completion of the ‘issues between the parties’ needs to happen at the higher level of application of the law – which it is submitted is through Section 438 for the 5^th Respondent – the closest sibling representing the investment in Higher Education by the Deceased. This is in conformity with the principles underpinning Thesawalamai which has been claimed to be applicable to all parties to this matter. It is submitted that this upholds the Spirit of the Court which ordered that husband of the 1^st Petitioner be included as Petitioner.

(s) It is submitted that this Testamentary case is primarily about the Rights of the Deceased to show the  value of his life to the society that he was a part of.  This value is best shown through the structure that he developed during his lifetime. The division of status and property reflects how the heirs carry this forward to benefit current society and the younger generations.

(t) The documents before the Court confirm that the Petitioners lived in the same house as the Deceased and therefore had access to movable properties including cash and documents relating to immovable properties and bank accounts held by the Deceased. 

(t) The 4^th Respondent – a female without demonstrated commitment to participate in the Sri Lankan legal process – wrote to Barclays Bank on behalf  of all heirs including the Brothers of the Deceased.

(u) Court Records on Pages 33 & 34 confirm that the Court brought the Petitioner – the sister of the Deceased under Thesawalamaistructure – requiring that the Husband of the Petitioner also be included as a party.  This confirms the preference allocated to Males to administer and manage, over females under Thesawalamai structure.

(v )On the face of the Documents before the Court – the Deceased, the 1^st Respondent and the 5^th Respondents are males and all other heirsas stated in the documents  are females.

(w) The Court records confirm that the 4^th Respondent wrote to Barlclays Wealth on 21 October 2010. In her evidence, the 4^th Respondent stated that ‘she had attached those letters to the Petition’. (Page 122 of the Brief). Yet, as per Court records – the 4^th Respondent is NOT a Petitioner but a Respondent who did not demonstrate care to follow Due Process of the Court to register her consent in writing. At the minimum level, this demonstrates her lack of respect for official processes and the tendency to override them through her own personal thought – for example that she took care of all her siblings including the Deceased after the death of her parent. (Page 122 of the Brief). The 4^th Respondent took it upon herself to represent all her siblings when wring to Barclays Wealth but failed to demonstrate such commitment to the Mallakam District Court. This is in conflict with the ruling of the Court that the husband of the 1^st Petitioner also be included as Petitioner due to Thesawalamai principles.

(w) Out of the two male heirs – the 1^st Respondent has thus far chosen to remain silent

(x) The 5^th Respondent has expressly demonstrated his commitment and capability by making an independent declaration as a non-legal lay person – through his Affidavit dated 30 December 2012 (pages 197 & 198 of the Brief) which satisfies the requirements of Section 438 of the Civil Procedure Code. In addition, as stated in Court by the Counsel for the Appellants – the 6^th Respondent is a Chartered Accountant. Her support for her husband and her capability to understand the language of Law is evidenced through her continued participation in Court Process (Page 130 & 131 of the Brief)

(y) The Court-records confirm also that the Court did use the above mentioned Affidavit by the 5^th Respondent, which fits Section 438,  to discipline the Petitioners’ Attorney at law (Page 38 of the Brief). To then set is aside as invalid is to deny Equal Footing as the Judge, to the 5^th Respondent. It is submitted that the setting aside of the Affidavit after it was used by the Court for its own Administrative  purposes  is to deny litigants - Equal Opportunity as the Legal Fraternity,  to participate in Court Processes.

(z) Relatively speaking – the Petitioners’ Affidavit fits the category facilitated by Section 439 of the Civil Procedure Code – confirming the lesser literacy of the Petitioners relative to the 5^th& 6^th Respondents.

(aa) It is submitted that giving preference to that Affidavit over the one that fits Section 438 would be appropriate if the Deceased was a female and was not able to understand the language of the Court / the Law and therefore confirms a structure where external legal help is needed to follow the path of Law.

(ab) The Deceased worked  as a Chemist in Sri Lanka as well as Overseas and earned the right for the value of his work related wealth - to be represented by members of the family with similar attributes - rather than home-makers whose Affidavit qualified under Section 439 of the Civil Procedure Code.

(ac )Both sisters of the Deceased confirm that their father distributed his wealth prior to his death and prior to their marriages. (Pages 118 & 124 of the Brief). The Court has the responsibility therefore to inquire as to whether any part of that wealth went to the Deceased from the father and therefore qualifies as Muthusum which needs to be separated from his acquired wealth to show heritage value included in that Estate.

(ad)It is submitted that - combined with the refusal by  the Court to approve the filing of the  Affidavit in a format acceptable to the Court, setting aside the Affidavit amounts to denial of fundamental Right of the Brother (5^th Respondent) to Object to the Petition, on Equal footing as the other heirs of the Deceased – be it to support  or to oppose.

(ae) On 31 May 2011, the Court highlighted  similar problems in the Affidavit of the Petitioners and ordered that they be rectified and the Affidavit be refiled.  The denial  of such an Opportunity to the 5^th Respondent has the effect of the Court disadvantaging the 5^th& 6^th Respondents of their rights on Equal footing as the Petitioners. (Page 32 of the Brief)

(af) Due to Rights of  Heirs not being addressed specifically in the processes leading to the Decision dated 26 February 2015, it is submitted that the Order  declared on 26 February 2015 amounts to an Interlocutory Order and not a final Judgment.

B (iv) Section 198 of the Civil Procedure Code states as follows:

[198. When the action is for an account of any property and for its due administration under the decree of the court, the court, before making the final decree between the parties, shall order such accounts and inquiries to be taken and made, and give such other directions, as it thinks fit.]

It is submitted that the creditors  listed in the Petition are confirmation that  Administration is essential.  The Court by virtue of Section 198 of the Civil Procedure Code  is vested with the duty to order that those accounts be inquired into.  It is submitted that the final decree cannot be made before this process is satisfied. Hence the Order made is confirmed to be Interlocutory.

Part 2

B (iv) – Inquiry from a different angle:

(a)    On page 5 of the Application filed on 16 March 2015, the Appellants state as follows:

Errors  in  Fact–

‘If the Proceedings  were driven by Effects of the action – then the following approach seems the better fit:

“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in  dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. ” Lord Esher, M.R.cited  by Hon Justice SaleemMarsoof, P.C., J.  inStorerDuraisamy Yogendra  &BalasubramaniamThavabalan  Vs. VelupillaiTharmaratnam’

(b)   In S. RajendranChettiar& Others Vs S. Narayanan ChettiarS.C.Appeal No. 101^A / 2009,  escalated from  the  District Court case No. 428/T in the District Court of Colombo in relation to the  Trustees of the Hindu Temple known as “Sri Kathirvelayuthan Swami Kovil”,   Dr.Shirani A. Bandaranayake, J includes in her Honor’s reasoning the following:

[Therefore to ascertain the nature of the decision made by a civil Court as to whether it is final or not, in keeping with the provisions of section 754(5) of the Civil Procedure Code, it would be necessary to follow the test defined by Lord Esher MR in Standared Discount Co. v La Grange (supra) and as stated in Salaman v Warner (supra) which reads as follows:

“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”

 In Salaman v Warner (supra), Fry, L.J., also had expressed his views regarding an appropriate interpretation that had to be given to final and interlocutory decisions. Considering the difficulties that had been raised regarding the correct interpretation for final and interlocutory orders, it was stated that the attention must be given to the object of the distinction drawn in 15 the rules between interlocutory and final orders on the basis of the time for appealing. Fry, L.J. had accordingly stated thus:

“I think that the true definition is this. I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined.”

 Considering all the decisions referred to above, the aforesaid statement clearly has expressed the true meaning that could be given to a judgment and an order in terms of section 754(5) of the Civil Procedure Code.

 The order made by the Additional District Judge on 14.05.2008, was in terms of section 46(2) of the Civil Procedure Code and it is not disputed that the rights of the parties were not considered by the District Court. In such circumstances it would not be probable to state that the said order made by the District Court had finally settled the litigation between the appellants and the plaintiff.

Considering the circumstances of the appeals it is abundantly clear that at the time the said order was made by the District Court, the litigation among the parties had just begun as the plaintiff as a Trustee of the ‘Puthiya Sri Kathiravelayuthan Swami Kovil’ and its temporalities had instituted action before the District Court of Colombo, seeking inter alia,

1.       the appointment of Receiver under section 671 of the Civil Procedure Code for the preservation and maintenance of the Trust property;

2.       the removal of the 2nd to 4th appellants and the 1st respondent as trustees of the Trust; 16

3.       3. the 2nd to 4th appellants and the 1st respondent to account for Rs. 34,000,000/- of Trust money which had been illegally and immorally appropriated by the 2nd to 4th appellants and the 1st respondent for their personal use.

………………………………

………………………………….

Considering all the abovementioned it cannot be said that the decision given by the District Court could have finally disposed the matter in litigation. In Ranjit v Kusumawathi (supra), Dheeraratne, J. after considering several decisions referred to earlier and the facts of that appeal had stated thus:

“The order appealed from is an order made against the appellant at the first hurdle. Can one say that the order made on the application of the 4th defendant is one such that whichever way the order was given, it would have finally determined the litigation? Far from that, even if the order was given in favour of the appellant, he has to face the second hurdle, namely the trial to vindicate his claim.”

Considering the decision given by Dheeraratne, J., in Ranjit v Kusumawathi (supra) it is abundantly clear that the order dated 14.05.2008 is not a final order having the effect of a judgment within the meaning of sub-sections 754(1) and 754(5) of the Civil Procedure Code, but is only an interlocutory order. For the reasons aforesaid, both appeals (S.C. (Appeal) No. 101A /2009 and S.C. (Appeal) No. 101B /2009), are dismissed and the judgment of the High Court dated 21.11.2008 is affirmed.]

( c) It is submitted that the Order if given in favour of the 5^th& 6^th Respondents, would have required for the matter to proceed to complete the picture – in terms of Administration. But as it stands – the Order confirms that no further inquiry is needed into this aspect. Hence the awarding of Certificates of Heirship – on the basis of this Order would block the path of Due Process needed to settle creditors - at least one of whom is a Respondent  (Page 178 of the Brief) and whose wife wrote to Barclay’s Bank – effectively assuming the Administrator’s position.

(d )It is submitted that if the Deceased himself were to delegate authority to manage his wealth - he would have chosen the one with equal or higher skills as himself to preserve and protect his savings.  On the face of the information before the Court this is the 5^th Respondent with the support of the 6^th Respondent. The Court owes the Deceased this honor of representation reflecting his higher level participation in maintaining social order.  It is humbly submitted that this is along the same lines as Mr. Parathalingam P.C. representing the Appeal Respondents – as highlighted by his honor in Court. The parallel of Mr. Parathalingam P.C. - in the case of litigants – is the 6^th Respondent empowered by the delegated power of the 5^th Respondent. The way the lay person interprets the law is Equally important as the way the legal expert does. Hence the Experience base as highlighted by the Judges hearing the above mentioned  matterChettiar v Chettiar:

“There is a note in the Supreme Court Practice 1970 under RSC Ord. 59, r 4, from which it appears that different tests have been stated from time to time as to what is final and what is interlocutory. In Standard Discount Co. v La Grange and Salaman v Warner, Lord Esher MR said that the test was the nature of the application to the Court and not the nature of the order which the Court eventually made. But in Bozson v Altrincham Urban District Council, the Court said that the test was the nature of the order as made. Lord Alverstone C.J. said that the test is: ‘Does the judgment or order, as made, finally 12 dispose of the rights of the parties?’ Lord Alverstone C.J. was right in logic but Lord Esher MR was right in experience. Lord Esher MR’s test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord. 14 (even apart from the new rule) has always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution – every such order is regarded as interlocutory: See Hunt v Allied Bakeries Ltd., so I would apply Lord Esher MR’s test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported case, Anglo-Auto Finance (Commercial) Ltd. V Robert Dick, and we should follow it today. This question of ‘final’ or ‘interlocutory’ is so uncertain, that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way” (emphasis added).

(e)The Deductions claimed in the Petition (Page 178 of the Brief) are examples of areas requiring Administration. These have not been addressed by the Court at all.

(f )(i) IT IS SUBMITTED THAT THE ORDER AS DELIVERED HAS THE EFFECT OF COMPLETING  THE PICTURE FOR THE PETITIONERS BUT,

(ii) LEAVES UNADDRESSED THE RIGHTS OF OPPOSING RESPONDENTS WHO AS PER THEIR UNDERSTANDING OF THE LAWFUL REQUIREMENTS,  NEEDED THE MATTER TO PROCEED TO INCLUDE THEIR ‘FACTS’ TO STRUCTURE THE PICTURE THROUGH WHICH THE SAID  WEALTH WAS DEVELOPED IN THE CUSTODY OF THE DECEASED, AND

(iii) FAILED TO FACILITATE THE EXPRESSION AND INCLUSION OF THE LEGITIMATE BELIEFS NEEDED TO INHERIT THE WEALTH OF AN ELDER AT ITS HIGHEST VALUE,  PROCESSED THROUGH THE LAWS OF THE SOCIETY THAT HE WAS VERY MUCH A PART OF.

(iv)IT IS SUBMITTED THAT THE VALUE OF THE WEALTH INVOLVED IS RELATIVE TO THE STRUCTURES AND PROCESSES THROUGH WHICH IT PASSES. TREATING AN INTERLOCUTORY ORDER AS A FINAL JUDGMENT WOULD EFFECTIVELY DENY THAT HIGHER VALUE TO THE LIFE OF THE DECEASED – AS REPRESENTED BY HIS ESTATE - TO THE SOCIETY HE WAS PART OF. THE THRESHOLD NEEDS TO BE RAISED TO REPRESENT THE TRUE VALUE AS PER THE CHARACTER THAT MR. SUBRAMANIAM YOGANATHANCONFIRMED. THE CONFIRMATION THAT THE ORDER WAS INTERLOCUTORY IS THE FIRST STEP NEEDED TO ESCALATE THE VALUE OF THE MATTER TO ITS EARNED