Questions and Answers

Payment of rates by tenant

Question: I am living in a rented house and pay monthly rent to the owner. The owner wants me to pay the yearly rates to the Municipality, claiming a clause added to the tenancy agreement for payment of such rates by me.

Please state the legal aspect of this issue.

Peter Fernando, Colombo 8.

Answer: Do you have a copy of the tenancy agreement. If not you may request for a copy from your landlord. Well if in the agreement signed by you, the owner has included that the tenant has to pay the annual Municipal rates, then you have no choice but to pay the rates as well. The monthly rental may have been fixed taking into account the payment of the rates also by the tenant. It is legal for the owner to request you to pay if it has been included in the agreement. An owner can even include maintenance and repairs by the tenant, similarly payment of water and electricity bills. Even telephone bills if the telephone is provided. These days cable TV rental are being included. It is all a matter or agreement between the two parties.

Non payment of increments

Question: When the EB examination was introduced to the Pharmacists' Service by the DGHS in 1977, a time limit of five years was given to pass the examination from 1982-1986. But the department held only examination within the prescribed period in the year 1984. The following EB examination were held beyond the prescribed period that is in 1987, in 1989 and 1991. I retired on 18.3.1991 then my age was 47. The department has to hold EB examination annually. I did not pass the exam within the prescribed period or beyond the prescribed period. As the department did not hold the EB examination annually within the prescribed period and had been holding the examination beyond the prescribed period namely of 1991. Would you agree that in the light of above facts I should be paid all increments due to me till 1991.

E. Vivekananthan, Manipay.

Answer: We cannot either agree or disagree with you on this matter as we see only the facts presented by you. We are not aware of the conditions by the Health Ministry in relation to the Efficiency Bar (EB) examination. We contracted the Director Administration Division of the Healthcare and Nutrition Ministry, who is in charge of the Examinations. She agrees that the examination was not held in certain years.

If requested by you directly they are willing to certify that the EB exam was not held in these particular years. With that certified information you may have to appeal to the Secretary of the Ministry regarding the payment of increments which you claim are due to you.

Re. Transfer of 'gift deed' as per a 'condition'

Question: 1. I gifted my house and property in which my wife and I live to my daughter on a gift deed in 1996 retaining our life interest subject to the conditions:

1.(i) right of the donor to revoke the gift at any time and (ii) to take, receive and enjoy the fruits, issue and income, rents and profits (life interest) of the property described in the schedule during the lifetime of the donor and my wife.

2. After the transfer of the 'gift deed' my daughter married an employee of the same institution that she was employed in. For their convenience I told the couple that they can stay with us in the same house we live which is gifted to my daughter. They married in November 2007. Since their marriage to date (2 years) my son-in-law did not spend a cent on the maintenance of his wife or for the household in any form. Family expenses were borne by my daughter from her salary and my pension. He sent money to his people at Matara. He is indebted to banks and lending institutions. He is wicked to his wife and even to us. Now that my wife and I are in our 80s. His intention is to sell this property after our deaths for which my daughter (his wife) too will agree through fear.

3. Since I do not like selling this property (which is our ancestral home) after our death, I told my daughter to retransfer the property back to me as per the 'conditions' in the gift deed to her mentioned in para one above. She is willing to retransfer to avoid the land sale by her husband after our death in the future through fear.

4. My question is, in the event of the retransfer of the gift deed back to me as per the 'condition' on the gift deed referred it in para one above:

(1) the son-in-law will insist that his signature for the re-transferring deed is necessary but, he will not sign the deed, then how should I proceed with the re-transfer.

(2) Is it compulsory to have the son-in-law (donees husband) to sign the retransferring deed?

(3) Is it necessary to have the son-in-law's signature in the retransferring deed when there is a 'condition' in the gift deed "that the gift deed will be revoked when the donor needs it back.

(4) If the retransferring deed is signed by the donor and donee only what will be the legal validity?

I shall be very thankful and grateful for a very early advice.

W. A. de Silva, Ratmalana.

Answer: Usually it is revocation of the deed in which case you don't require any signature other than that of the donor. However, you have stated of a condition in the gift deed's 'transfer' in which case you can re-transfer the gift deed without any problem. The parties to the re-transfer are the donor and the donee. That will be yourself, your wife as donor and your daughter as the donee. Your son-in-law does not come into the picture at all for the purpose of the retransfer of this gift deed. You don't require his signature at all. All you require is your daughter's signature and the signatures of your wife and yourself.

At the same time you can prepare a last will with all the life interest. If not on demise of both of you, your daughter will have problems and your son-in-law can claim his legal share. Your will can be in favour of your daughter only. Of course there is nothing preventing your son-in-law from selling once your daughter inherits the property and if she is forced to agree. You may include the grandchildren if any in the will before your demise which can make the sale difficult or prolonged.

Loss of original plan of DC case No. 18435

Question: I shall thank you if you would be so good as to help me in the present predicament to rid myself of it by explaining to me to take steps to come out of it.

1. The plan I am in possession is a true copy of the original. How to obtain the original plan of it.

2. Can I proceed with the case in DC Court's Galle, although I have filed a case for demarcation Case of my lots 30A, 30B, of the plan? I am having now the original final decree, which is available with me.

Thanking you in anticipation of an early response in your esteemed column in the Daily News.

G. Gamini Pala, Anangama.

Answer: (1) If the true copy you are in possession of was prepared by the surveyor who originally surveyed the land it is as good as the original. Similarly, if it was prepared by a registered, licensed surveyor who had access to the original documents and has certified himself as a 'true copy', it is also as good as the original. If either is not the case and if the surveyor who originally surveyed the land is still living you can contact him.

(2) Your second question is not clear as we are not sure as to what you mean by the case in DC whilst you have also stated that you have obtained the original final decree.

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Obtaining passport for minor without father's consent

Question: I got married in 1994. Our marriage was duly registered under general law by a marriage registrar. In 1998 my husband disappeared deserting me. I came to know that he had given a false name and address. I have a son fathered by him and in (my) son's birth certificate, my husband's name is mentioned as the father. My son was born in 1996 and now he is 13 years old. I need the father's consent to get my son a passport. I can't trace the father. The name, address and every detail he had given me were bogus. So far I have not taken any legal step against this. (1) please let me know how I can get a passport for my son. (2) Is it possible for me to divorce him? What is the procedure?

Kanthie Perera, Kaduwela.

Answer: We really feel sorry for you and other women like you who have been cheated in life. You cannot obtain a passport for your son without the consent of both parents. Once the child reaches the age of 18 you can obtain a passport without the parents consent. The requirements of parents consent for minors is required in order to protect children from being taken out of the country by one parent without the knowledge or consent of other. Often happens is the case where husband and wife have a dispute.

However, you are advised to apply for the passport and meet one of the senior officials in-charge of the passport division who may be able to help you after calling for sufficient proof of your predicament.

Based on the facts stated by you, it is possible for you to obtain a divorce, if you can provide proof of the circumstances described. You should contact a lawyer in order to proceed with the divorce proceedings. If you cannot afford the cost of going to a lawyer, you may contact the Legal Aid Commission for free Legal Aid. You may contact the Nugegoda office at the Nugegoda Court Complex. Tel. 2809068, contact Ms Thamara Damayanthi AAL, Legal Officer or LAC headquarters, No. 129, Hulftsdorp, High Court Complex, Colombo 12. Tel. 5335329, 5627338, contact Mrs. Nelum Gamage, Director General.

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