Questions and answers

Question:

Property issue under Fideicommissum Law

My grandfather wrote his property to my father under the Fideicommissum Law. In this deed he specifically mentioned that my father cannot sell, transfer or lease the property to anybody where it is punishable act. Therefore he had only fiduciary rights. However he sold the property with my eldest sister in 1962 to his son, under a sales agreement which was strictly prohibited in the deed. Under this circumstances according to my understanding it is thought to be an illegal deed because of the following reasons.

1. My father has no write to sell the property in 1962.

2. My sister had no write to sell the property because my father was alive at the time of writing the property.

According to above reasons please let us know whether this agreement should be treated as null and void.

Vijelakshmi Kotte – sent by email

Answer:

The Fidecommisum Law has been repealed by the Abolition of Fidecommisa and Entail Act No. 20 of 1972. If your father transferred the property to someone then the action has to be taken that time.

However, please go to the nearest Legal Aid Commission centre with the relevant documents for further clarification.

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Question:

Gifting a land with life interest

I gifted my land to my elder son without reserving the life interest of my wife. My actual intention was to gift this property to my son subject to life interest of my wife and me. However I couldn’t add that clause to the deed mistakenly. It is a revocable deed. Can I include the life interest of my wife to the deed now If so please advise me.

Piyasena – Matara

Answer:

As it is a revocable deed you can cancel it and rewrite the deed of gift with life interest of your wife. If both parties (donor and donee) are willing to add the new life interest clause then a deed of declaration can be executed by the donor (you) and donor / donee have to sign it.

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Question:

Getting a divorce for sexual impotence

I am 65 years. I got married when I was 39. Even though it is 26 years after we got married, I am still a virgin due to my husband’s sexual impotence. I fulfill all my duties as a wife. He is unable to fulfill any of his matrimonial duties either.

He also sold his property and spends money lavishly without caring for me. I now live in a property belonging to me.

I want to divorce my husband because I am scared he would come back to me after treating me so badly. Can I file a case against him and claim compensation

Daily News reader

Answer:

You can file a divorce case in the District Court against your husband on the grounds of sexual impotence at the time of marriage and malicious desertion. If your husband has property or money you can claim a permanent alimony from him in your divorce action. You can also file a maintenance case against your husband in the Magistrate's Court claiming a monthly payment for your maintenance.

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Question:

Registration of a power of attorney

I am a law student. Is it necessary to register a power of Attorney Please advise me.

Pubudu - Welikala

Answer:

According to Section 03 of the Power of Attorney Ordinance, 'Any attorney desiring to have his power of attorney registered under this Ordinance shall be entitled to have the same so registered, and shall for that purpose produce the same to the Registrar-General, together with a copy thereof certified by a notary public to be a true copy, and shall make an affidavit to the effect that to the best of his knowledge and belief such power of attorney is genuine and still in force.

And the Registrar-General shall, after satisfying himself of the correctness of such copy, register the power of attorney and file such copy and shall endorse upon it and upon the power of attorney a certificate signed by him stating the fact of such registration and the date thereof, together with a reference to the volume and folio wherein such registration is recorded and such copy is filed, and shall return the power of attorney to the person producing the same. Such registration shall be recorded in a book to be kept in the form prescribed in the Schedule.”

Therefore, it is clear that the registration is not mandatory and it may be registered only if the Attorney is desirous of getting the Power of Attorney granted to him or her registered.

When even the registration of deeds is not mandatory, one cannot take up the position that Powers of Attorney have to be registered. In any event, the above section makes it clear that the registration is the discretion of the holder of the Power of Attorney.

However registration of a Power of Attorney is more recognised, prevent fraud and malpractice.

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Question:

Summons issue of a divorce case

I am employed in Japan on a contract basis. There is a condition in my contract saying it is compulsory to serve my company at least one year continuously.

I have been working in Japan for six months and still doing my job. I received summons issued by a District Court in Sri Lanka for a divorce case filed by my wife against me.

It is difficult to come to Sri Lanka due to my job condition. Is it possible to nominate someone to appear on behalf of me If not what will happen to the case

Vipulasena - Japan

Answer:

As you have already accepted the summons the case will be fixed for an ex-parte trial if you or a registered Attorney on behalf of you will not appear in courts. But you can prepare a special power of attorney nominating a trusted person to sign proxy, other documents and appear in courts on behalf of you.

Anyway you have to be present in courts during the trial to give evidence. Your power of attorney holder can appear in courts till the trial commences.

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Question:

Employees entitled to EPF

I am going to join a private sector job. Please advise me as to who is entitled to Employees Provident Fund.

Susanthi – Avissawella

Answer:

Under the Employees Provident Fund Act No. 15 of 1958 all employees except a)Government Servants, b)Local Government Employees, c)Domestic Servants, d) Employees in charitable institutions maintained for the purpose of religious worship or social service where the number of employees are less than 10, e) Employees of industrial undertakings imparting technical education to juvenile offenders or to deaf or blind persons are entitled for Employees Provident Fund.