( 289 )
Present: Fisher C. J. and Drieberg J.ARATCHILLAGEY APPUHAMY v. TIKIRI NAIDE et aL187—D. G. (Inly.) KegaMa, 1,312.
Partition—Order for partition—Scheme of partition approved—Nojudgment—Sale of undivided share—Validity—Ordinance No. 10of 1863, ss. 6 and 17.
In a partition action the Court confirmed the scheme of partitionproposed by the Commissioner but did not enter judgment asrequired by section 6 of the Ordinance.
Twenty years after, one of the parties sold an undivided shareto the plaintiff.•
Held, the sale to the plaintiff wets obnoxious to section 17 of thePartition Ordinance and that the plaintiff did not obtain a validtitle.
Ibrahim v. Rahim Beebes1 distinguished.
HP HIS was an action for declaration of title to two lots of a land-A called Kosgahaliyaddekumbura. The land was the subjectof a partition action in D. G. Kegalla, 1,312, and on March 6,1903,the Court confirmed a scheme of partition proposed by the Com-missioner which allotted the lots in question to two persons, UkkuEtana and Appu Nachira, who were entitled each to $ of the land.The Court did not enter judgment as provided by section 6 of thePartition Ordinance. Ukku Etana died and her share devolved onAppu Nachira, who thus became entitled to £ share. Appu Nachirasold this share to Dingiri Naide, who by deed of October 19, 1925,registered on November 2, 1925, sold it to the plaintiff. Plaintiffclaimed to be entitled to the divided lots, which representedthe undivided interests of Ukku Etana and Appu Nachira. OnDecember 21, 1925, Appu Nachira sold the divided lots to the firstand second defendants.
The learned District Judge held that the entering up of the decree
was a ministerial act, and that the sale to plaintiff was good.
R.L. Pereira, for second and third defendants, appellant.
Hayley, K.C., and Koch, for plaintiffs, respondent.
January 17, 1929'. Dbiebebg J.—
The plaintiff-respondent brought this action for a declaration oftitle to the lots 2 and 3 in plan 4,285 filed in D. C. Kegalla, 1,312.Ukku Etana and Appu Nachira were each entitled to an undivided£ of the lands, of which lots 2 and 3 are a part. This land was the
1 19 N. L. R. 293.
233. N. 9487 (ll/46>
I 200 )
1829. subject of a partition action (D. C. Kegalla, 1,312), and on March 6,p_r——, 1903, the Court confirmed a partition proposed by the Commissioner,,j. which it; was alleged allotted lot 2 to XJkku Etana and lot 3 to AppuAracMQagey ^ao|“Ea* The Cpurt, however , did not enter judgment as required byAppuhamg section 6 of the Ordinance. The statement of the title of the partiesas it appears in the pleadings—for the deeds relied on were not putin evidence—is as follows :—The respondent says that Ukku Etanadied and that her £ share devolved on Appu Nachira, who thusbecame entitled to an undivided J share. Appu Nachira sold thisshare by a deed of October 6, 1925, registered on October 10, 1926,to Dingiri Naide, who'by the deed of October 19,1926, registered onNovember 2,1925, sold it to the respondent, who pleads that at thetime of his purchase he was not aware of Ukku Etana’s rights tolots 2 and 3 resulting from the partition action. He claims to beentitled on these deeds to the divided lots which represent theundivided interest of Ukku Etana and Punchi Kira. The respond-ent alleged that the first defendant, who is. not a party to thisappeal, fraudulenty induced Appu Nachira to convey the lots 2 and.3 to the second and third defendants, who are the present appellants,by deed 39,702 of December 19, 1925. The appellants rely on thisdeed, which was registered on December 21, 1925.
The appellants say that their deed is for lots 1 and 2 of the portionmarkedB in the plan 4,285;. respondent’s claim referred to the sharesof Ukku Ettana and Appu Nachchira in Kosgahaliaddecumbure,which is lot B, of which lot 1 was allotted to Appu Nachira andlot 2 to Ukku Etana. Mr. Koch, for the respondent, accepts thisas correct, and the action must be regarded as having been broughtfor lots 1 and 2 of the portion B. .As we have decided that therespondent’s action should be dismissed, it is not necessary tocorrect this error in the pleadings, but the decree of this Coifirt willstate that the dismissal of the action is with reference to theseMocks.
At the trial the issues agreed on were: (1) Is the case No. 1,312,D. C. Kegalla, still pending ? (2) If so, are the deeds pleaded byplaintiff void by reason of thier having been executed during thependency of the said partition case ? The Judge recorded that hewas asked to note that all the parties rested their cases on thesetwo issues alone.
After argument the learned District Judge held that section 17 ofthe Partition Ordinance referred to cases where the Court refusedto allow a partition, but that in this case the Court granted apartition and that the mere entering up of the decree was a minis-terial act which might be done at any time. He came to thisconclusion on the ruling on Ibrahim v. Rahim Beebee he thereforeentered judgment for the respondent for the land with costs and
1 (1916) 19 N. L. R.293 ; 3 C. W. R. 350.
C 291 )
■damages against the appellants and the first defendant, it havingbeen agreed the judgment should be so entered if plaintiff succeeded-on issues. The second and third defendants have appealed. In my-opinion the issues framed are not decisive, but we are not concernedwith this, for Counsel' at the appeal were agreed that the decisionshould be limited to the issue, whether the conveyance relied on byAppu Nachira were executed during the pendency of D. C. 1,312,and this, it was agreed, depended on the question whether therespondent could claim for the order of March 6, 1903, the sameeffect as a judgment entered in pursuance of it.
It appears to me that there are good reasons for holding that itcannot have this effect. The title acquired under, the judgmentalloting divided shares to parties is an indefeasible one; it terminatesthe old title of common ownership and creats a new title whichhas to be registered as such under section 27 of the Land RegistrationOrdinance, No. 14 of 1891,and whichtheCourtbyits j lodgement conferson the parties. It is in the nature of a conveyance'. In this casethe Court did no more than approve of the scheme of partitionsubmitted by the Commissioner. To extend to this ordsr the effectof a judgment in rem assigning divided lots to the parties, with all theimportant results which follow on such a judgment, will be to relax,to a degree, dangerous and confusing, the provisions of the Ordinance.
In Menika v. Mudianse1 the Commissioner’s scheme of partitionwas submitted and the Judge notes that no cause was shown againstit,. though he did not formally confirm it. Wood Renton C.J.regarded the District Judge as having adopted tho'scheme, but as nojudgment had been entered he regarded the order as not havingthe effect of the judgment and allowed parties to intervene.
In Ibrahim v. Rahim Beebee (supra), which was relied on by thelearned District Judge, the Court found that the property should besold, and a formal decree of sale under section 4 was drawn up, andin pursuance of it a commission for sale under section 8 issued anda day was fixed for the sale. A few days before this date partiessought to intervene on the ground that there was no decree for sale.Wood Renton C.J. held that the decree, for sale could not bedeprived of its effect because the Judge, probably through inadvert-ence, had omitted to sign it. He directed that the Judge shouldsign the decree nunc pro tunc, and he refused the application forintervention. In this case, not only is there no judgment of partitionbut it is open to doubt whether the matter ever got beyond the stage-of approval of the Commissioner’s scheme, for we find parties afterthe lapse of twenty years dealing with undivided shares as if nopartition had been made. I would therefore allow the appeal andset aside the decree of the District Court against the first defendant
1 (1917) 4 C. W. R. 429.
as well, though he has not appealed. It is not possible to dismissthe plaintiff’s action against respondent and let it stand against thefirst defendant.
It was agreed at the trial that if the respondent failed on theissues framed his action should be dismissed with costs payable tothe first, second, and third defendants. Let a decree be entered!accordingly dismissing plaintiff’s claim to lots 1 and 2 of the portionB appearing in the plan 4,285 filed in D. G. Kegalla, 1,312. Therespondent will pay the appellants the costs of the appeal.
Fisher G.J.—I agree.
ARATCHILLAGEY APPUHAMY v. TIKIRI NAIDE et al