27. Section 81 of the principal enactment, is hereby repealed and the following section substituted therefor :-
| 81.
| | (1) Every party to a partition action or any other person required to file a memorandum under this Law, (hereinafter referred to as "the nominator") shall file, or cause to be filed in court, a memorandum, substantially in the form set out in the Second Schedule to this Law, nominating at least one person, and not more than three persons, in order of preference, to be his legal representative for the purposes of the action in the event of his death pending the final determination of the action. | | |
| | (2)
| | | (a) One of such nominees shall, in the order of preference in which their names are set out in the memorandum, be deemed to be the legal representative of the nominator for the purposes of the action, on the death of such nominator. |
| (b) In the event of the death or incapacity of any of the nominees whose names are set out in the memorandum, the person next nominated in order of preference shall be deemed to be the legal representative for the purposes of the action, in the event of the death of the nominator. |
| (c) The person or persons so nominated shall subscribe his or their signatures to the memorandum signifying consent to be so appointed as legal representative. The signatures of the nominator and those of the nominee or nominees so consenting to be appointed shall be witnessed by an Attorney-at-Law or Justice of the Peace or a Commissioner of Oaths : |
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| | (3) The court may at any time before the final determination of the action, on its awn motion or on the application of any party, require a party to the action or any person required to file a memorandum under the provisions of this Law, to file such memorandum on or before a date appointed for such purpose by court. | | |
| | (4) A nominee may, at any time prior to the death of the nominator apply, with notice to the nominator, to court by way of motion to withdraw his consent to be such nominee and in such event the court shall make order that he ceases to be the nominee of the nominator and shall cause the name of such nominee to be struck off the memorandum filed by the nominator. | | |
| | (5) A nominator may, subject to the provisions of subsection (1) of this section, at any time before the final determination of the action make application, with notice to the nominees, to tender a fresh memorandum nominating one or more nominees. On the filing of such new memorandum, the previous memorandum of such nominator shall stand revoked and the nomination contained in such fresh memorandum shall forthwith take effect | | |
| | (6) On the death of a nominator, the person first nominated in the memorandum filed by the nominator in order of preference, shall be deemed to be the legal representative of such nominator for the purposes of the action from the time of his death. | | |
| | (7) A nominee deemed to be the legal representative of a deceased nominator shall be entitled to take all such steps for the purposes of the action as the deceased nominator would have been entitled to take had he been alive. | | |
| | (8)
| | | (a) A nominee shall not decline to act as the legal representative of the deceased nominator. He may however with the leave of the Court first had and obtained, by way of petition and after notice to the other nominees if any, of such nominator, apply for permission from court to be released from the office of legal representative of such nominator. |
| (b) In the event of the court granting such permission, the nominee who is next in order of preference in the memorandum filed by the nominator shall be deemed to be the legal representative of such deceased nominator, for the purposes of the action. |
| (c) Where an application under paragraph (a) of this subsection is made by a nominee who was the sole nominee or sole remaining nominee of a deceased nominator, such nominee shall notice the heirs of such deceased nominator regarding his application and in the event of the court granting permission as aforesaid, such court shall appoint a consenting heir of such deceased nominator to act as the legal representative of such deceased nominator for the purposes of the action. |
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| | (9) Notwithstanding that a party or person has failed to file a memorandum under the provisions of this" section, and that there has been no appointment of a legal representative to represent the estate of such deceased party or person, any judgment or decree entered in the action or any order made, partition or sale effected or thing done in the action shall be deemed to be valid and effective and in conformity with the provisions of this Law and shall bind the legal heirs and representatives of such deceased party or person. Such failure to file a memorandum shall also not be a ground for invalidating the proceedings in such action. | | |
| | (10)
| | | (a) On the death of a party or person who had failed to file a memorandum as required by this section, any party or person may apply to court by an exparte application, requesting that a person be appointed as the legal representative of such deceased party or person and the court may, on being satisfied after inquiry that such appointment is necessary, appoint a suitable person to be the legal representative of such deceased party or person for the purposes of the action. Such legal representative shall be bound by the proceedings had up to the time of such appointment. |
| (b) Such application and appointment shall not be a ground for the postponement of the trial or proceedings; |
| (c) In ordering pre-payment of costs the court shall take into account the date of institution of the action and the dates on which trial was held prior to such application and the stage at which the action is and any other matters which the court considers relevant. |
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| | (11)
| | | (a) An heir of a deceased nominator may, at any time after the death of such nominator, apply to court to have the legal representative of such deceased nominator removed and to have another person named in such application or the person next named in order of preference in the memorandum filed by the deceased nominator, appointed as such legal representative. The person who for the time being is the legal representative of the deceased nominator shall be made a respondent to such application. |
| (b) The court may, upon being satisfied that it is in the interests of the heirs of the deceased nominator to do so, remove such legal representative and appoint the person next named in order of preference in the memorandum filed by the deceased nominator or if there are sufficient grounds for doing so, appoint the person named in the application, as the legal representative of the deceased nominator. |
| (c) An application under this section shall he by way of petition and affidavit and the court may in its discretion, issue notice of the application to the other heirs, if any, of the deceased nominator, |
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| | (12) No proceeding under this Law shall be postponed or adjourned nor any step in the action postponed by reason of the death of a party or person required to file a memorandum under this Law. | | |
| | (13) An application under subsections (4), (5),(8)(a),(10)or (11)shall not be aground for the postponement of the trial. The court may however grant a postponement on the payment of costs by the person making the application, if it is of the opinion mat it is in the interests of justice to allow such postponement. | | |
| | (14) For the purposes of this section "legal representative" means, a person who represents me estate of a deceased party or person, for the purposes of the action, by virtue of a nomination, or of an appointment by court under this section.". | | |
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Sri Lanka Consolidated Acts