News

News

Supreme Court rules 2-1 in favour of Lakmani Welgama
By Santhush Fernando
The Supreme Court in a 2-1 majority judgment has held that public figure and businessman of yesteryear, Upali Wijewardene's death for the purpose of his vast inheritance should be taken as from April 21, 1988 as being the earliest on which it could be established, allowing his widow Lakmani Ratwatte Welgama to be the administrator of the properties of the wealthy businessman.

The verdict was the culmination of a long-drawn out battle for the colourful personality's vast business empire which included chocolate factories in Malaysia, horses in Australia, offices in Singapore and vast tracts of real estate, a host of companies and a newspaper in Sri Lanka.

The right to inheritance of Upali Wijewardene's properties by his widow was contested by his two sisters Ms. Anoja Wijesundera and Ms. Kalyani Attygalle. The Bench comprised Chief Justice Sarath Silva and Justice Nihal Jayasinghe who held with the majority view while Justice Shirani Bandaranayake gave a dissenting order.

In his order, the Chief Justice stated ( with Justice Jayasinghe agreeing ) that the hearing of this case was adjourned for a considerable period to enable the parties to come to a settlement. It was only thereafter that the matter went into argument.

The late Upali Wijewardene went missing when he was returning to Sri Lanka from his Malaysian home for his 44th birthday on 13 February, 1983 in his private Lear jet with six others. The aircraft was last reported over Medan. None of the bodies were found, though Indonesian fishermen had later found the spare wheel of the aircraft.

The dispute between Upali Wijewardene's widow and his sisters was originally set to be settled with the appointment of his nephews on the board of his many companies, but the dispute was rekindled by the failure of Ms. Welgama to file the inventory and final accounts as directed by Court or to render accounts as agreed in Clause 3 of an agreement between the parties.

The sisters also stated that the date of Upali Wijewardene's death should be taken as February 13, 1983 ( the date he went missing ) and that Ms. Welgama intermeddled or dealt with the assets of the deceased for her own benefit.

Ms. Welgama told Court that Mr. Wijewardene's liabilities in fact exceeded his assets with about Rs. 50 million due to the Inland Revenue Department, and Rs. 200 million due to the People's Bank, and that action was taken on a Power of Attorney she had of his to avoid bankruptcy.

She said that the sisters of the late Mr. Wijewardene acquiesced in such restructuring which was done on the basis that Mr. Wijewardene was alive, and on the authority of the power of attorney by accepting directorships in companies that came into existence even after February 13, 1983 in terms of the Settlement Agreement.

During the long-drawn case, the question raised by the parties relate to the principal fact in issue; being the date of death of Upali Wijewardene, which had been addressed from different aspects of fact and the application of principles of law.

The Chief Justice states " it has to be borne in mind that we have to examine the issue solely from the perspective of a testamentary action. We are here, not concerned with the circumstances relevant to the disappearance of the ill-fated aircraft, but with the estate of Mr. Wijewardene.

" The dispute is, to state it plainly, as to the property of Mr. Wijewardene and the manner in which it should be accounted for, if as at February 13, 1983, being the date of disappearance, Mr. Wijewardene owned no property, there would be no dispute ".

The order goes on to state that "... the date of death must necessarily be decided on the basis of the application of the presumption in Section 108 of the Evidence Ordinance, as amended.

This process of reasoning may not be amenable to common sense or logic, but, from the perspective of the law, the reasoning has to be applied so that at any given point of time, it produces a clear and unambiguous answer as to whether a person is considered as alive or dead. There cannot be any intermediate period of doubt or ambiguity.

The preceding analysis shows that rights and obligations in relation to property and transactions are workable only on a clearly defined line of demarcation in which a person is considered to be alive or dead up to a specified date and dead thereafter.

As at the date of death thus determined, the estate comes into being and the rights and obligations in relation to property and transactions that survive after death, pass to their heirs or persons to whom they are devised or bequeathed ".

When the aircraft in which Upali Wijewardene was travelling disappeared on February 13, 1983, and was not heard of thereafter, the obvious question that arose in relation to his property rights and obligations was whether they could be dealt with on the basis that he was alive or on the basis he was dead, the Chief Justice states.

The Chief Justice then quoted Sections 107 and 108 of the Evidence Ordinance which relate to "presumption as to life and death" that the presumption of life continues for thirty years unless proved otherwise by proving that the person has not been heard for seven years ( prior to the amendment that reduced it to one year ).

So, if Mr. Wijewardene was presumed to be alive, Ms. Welgama and others who dealt with his property functioned on the premise that he was alive and they acted for and on his behalf. No evidence was proved to the contrary that Mr. Wijewardene was in fact dead.

Ms. Welgama availed herself of an amendment to the law on April 21, 1988 (reducing the seven year period to one year) and filed for Letters of Administration pleading that Mr. Wijewardene should be presumed dead in terms of Section 108 of the Evidence Ordinance.

The Chief Justice states that nine years after agreeing to Ms. Welgama being granted the Letters of Administration, in April 1997 she filed papers alleging that Mr. Wijewardene died on February 13, 1983.

The respondents consented to the grant of Letters of Administration and have therefore acquiesced in the course of action taken by Ms. Welgama attending to the affairs of Mr. Wijewardene in terms of the Power of Attorney, the Chief Justice held.

In the circumstances, the Chief Justice held that the date of death for the purpose of the estate should be taken as April 21, 1988 as being the earliest date on which it could be established in terms of the law, that the presumption of death applies.

Nihal Jayamanna PC., with Ronald Perera, V. Choksy, Ms. Noorani Amerasinghe, Ms. Uditha Collure and Dilan de Silva instructed by Samararatne Associates appeared for Mrs. Welgama.

Wijeyadasa Rajapakse PC with Navin Marapane appeared for the respondents Mrs. Helena Anoja Devi Wijesundera and Mrs.Anula Kalyanidevi Attygalle.

Top

Back to News