WUIAMHATNE, J.—Dantanarayanu a. S'ouuhamy
1978Present : Wimalaratne, J., Rajaratnam, J. and
DAVID DANTANARAYANA, Petitioner-Appellantand
A. NON AH AMY, Defendant-Respondent
S.C. 10/77 (Inty)—D. C. Matara 7583/P
Partition action—Interlocutory decree entered leaving share unallotted—Power of Court to amend such decree allotting share tointerveniem—Practice—Administration of Justice Law, No. 25 of1.975, sections 463. 464, 643; 644-—Partition Law, No. 21 of 1977,section 69—Partition Act (Cup. 69), sectio?is 26, 70.
Where the question arose as to whether a Court which hasentered interlocutory decree' for partition leaving a share unallottedcan subsequently allot that share to an intervenient and amend theinterlocutory dec- ee accordingly—
Held: (1) That in a partition action to which the provisions ofthe Administration of Justice .(Amendment) Law, No. 25 of 1975,applied, the interlocutory dec.ee entered can be amended only asprovided for in sections 463 (4). and (6) which empowered a courtto correct any clerical or arithmetical mistake or any error arisingfrom any accidental slip or ortiifsipri or to amend the decree to bringit in conformity with the judgment. There is no provision to addparties alter interlocutory decree had been entered.
(2) That however a practice has evolved in our Courts for allottingunallotted shares on proof of title even after interlocutory decreeTias been entered, rielofe that li> doflt! there should be clear proof or‘rule and the party claiming title to such unallotted share shouldgenerally be called to lead evidence in proof of his title.
Case referred to :
Ariyar.atne v. Lapie, 76 N.L.R. 221.
^^PPEAL from an order of the District Court, Matara.
N. Devendra, for the petitioner-appellant.
A. C. Gooneratne, Q.C., . vvith M. Zarook, for the 14thdefendant-respondent.
Cur. adv. vult.
February 13, 1978. Wimalaratne, J.
There arises for consideration in this appeal the questionwhether a court which has entered interlocutory decree forpartition leaving a share unallotted can subsequently,allot thatshare to an intervenient and amend the interlocutory decreeaccordingly ; and if so, the quantum of proof necessary beforesuch share is allotted.
The plaintiff instituted this action for the partition of a landcalled Thudawagewatta alias Kitihennedigewatta, and traced titlefrom one Jeewathhamy. Jeewathhamy transferred 1/3 share toDineshamy and another 1/3 share to Devenarayana. There wasdispute regarding the devolution of title to those 2/3 shares. OnJeewathhamy’s death, the balances 1/3 share devolved on hiswife Ceciliana Wijenarayana, and five children, one of whom
I* ij|982 (HO/10)
WJMALAJRATISTE. J.—Ha nlanartiyana v. Nonahamy
was William, who became entitled to 1/30 share. On William’sdeath his widow Nonahamy became entitled to 1/60 share, andhis five children to 1/60 jointly.□
The plaintiff averred that Nonahamy transferred her 1/60 shareby deed No. 10615 dated 6.11.47 to W. D. David, the 2nd defendant,and that the five children of William also transferred theirinterests to W. D. David on deed No. 42570 dated 24.11.57..Nonahamy was therefore not made a party to the action.
At the trial the plaintiff, who had purchased 1/24 share fromone of the children of Dineshamy, gave evidence and said thatNonahamy did not transfer her 1/60 share to the 2nd defendantas averred in the plaint, and suggested that that share be leftunallotted. No steps were taken to add Nonahamy as a partydefendant. The learned District Judge entered -judgment andinterlocutory decree on 28.10.75 leaving a 1/60 share unallotted.
On 6 4.76 Nonahamy intervened and filed a statement movingthat she be added as a defendant and claiming the 1/60 share.The learned District Judge (who was not the same Judge whohad recorded evidence at the trial) made Nonahamy the 14th"defendant and amended the interlocutory decree allotting theunallotted 1/60 share to her.
On 1.9.76 the petitioner David Dantanarayana filed a motionstating that Nonahamy had transferred her 1/60 share to himupon deed No. 10615 dated 5.11.47 (which is the same deedreferred to in the plaint). He moved that he be added as adefendant and that he be allotted that share. This matter wasfixed for inquiry, after notice to the 14th defendant and thelearned District Judge by his order dated 24.11.76 refused thepetitioner’s application. The present appeal is from that order.
It has been argued on behalf of the appellant that the DistrictJudge had no jurisdiction to amend the interlocutory decreeentered on 28.10.75 and that the amendment allotting the unallot-ted share to Nonahamy is of no validity in law. The contention oflearned Counsel for the respondent is that there could be noobjection to this amendment as the learned Judge who recordedthe evidence at the trial had come to a finding that Nonahamyhad title to that share, and the amendment of the interlocutorydecree was only done with a view to bringing the decree inconformity with the judgment.
When interlocutory decree was entered, as well as when it wassubsequently amended, the law in force was the Administrationof Justice (Amendment) Law, No. 25 of 1975. Section 644 f 2) ofthat Law required the Court, at the conclusion of the triql, topronounce judgment, and thereafter to enter an im rriocutory
W'iAIALAKATNE, J.—Dantanarayuuu v. Nunuf.amy
decree in accordance with the findings in the judgment. Therewas no special provision to amend an interlocutory decree soentered. Therefore only such general provisions regardingamendment of decrees would apply. The general provisionswere contained in section 463 (6), which empowered a court tocorrect any clerical or arithmetical mistake in any judgment,or any error arising therein from any accidental slip oromission ; and in section 464 (4) which empowered a court toamend the decree to bring it in conformity with the judgment.
Nor was there provision to add parties after interlocutorydecree had been entered. Section 643 (1) empowered the courtto add a person who, in the opinion of the court should be orshould have been made a party, or who applied to be added as aparty to the action only at any time before interlocutory decreewas entered. Indeed, section 69 of the new Partition Law, No. 21of 1977, is more stringent in that parties can be added only at anytime before judgment is delivered. This provision has beenintroduced perhaps because of the judgment of a Divisional Benchin Ariyaratne v. Lapie, 76 NLR p. 221, which held that section70 of the former Partition Act (Cap. 69) was not wide enough topermit the court to allow a party to intervene after judgment hadbeen pronounced in terms of section 26 of that Act, but beforeinterlocutory decree had in fact beep, signed.
The District Judge who recorded the evidence of the plaintiffhad not added Nonahamy as a party defendant. He could havedone so under section 643(1), but he did not do so very probablybecause of the averment in plaint, and in at least one statementof claim, that Nonahamy had transferred her interests on deedNo. 10615 dated 6.11.47. He had ordered that 1/60 share to remainunallotted, and there was no finding in his judgment, thatNonahamy was entitled to it. The learned Judge who inquiredinto Nonahamy’s application had, therefore, no jurisdiction eitherto add Nonahamy as a defendant or to allot the unallotted shareto her.
But a practice has evolved in bur courts of allotting unallottedshares on proof of title even after interlocutory decree has beenentered. The reason is to avoid unnecessary delay and expensein compelling a person entitled to such share to institute aseparate action for declaration of title to that share. Before thatis done there should be clear proof of title, and the mere consentof parties would not be sufficient, because in a partition actionthere is a duty imposed on the court to examine the title of eachparty and to hear and receive evidence in support thereof. Theparty claiming title to such unallotted share should generally becalled upon to lead evidence in proof of his title.
l*et'era r. Republic of LauXa
The learned District Judge who made the order dated 12.5.76had not'called upon Nonahamy to lead evidence in support ofher title. Nonahamy had filed only a statement of claim, and noteven an affidavit supporting her claim. In the absence of apositive finding in the judgment entered alter the trial thatNonahamy was entitled to a 1/60 share, the learned DistrictJudge ought not to have allotted that share to her. I would,therefore set aside the order of the District Judge dated 12.5.76.and also the consequential amendment of the interlocutqrydecree. Accordingly, the original interlocutory decree dated28,10.75, is restored. The Commissioner has filed a final planNo. 2015 dated 4.10.76 in accordance with that interlocutory decreeand in terms of that plan lot 4 represents the unallotted 1/60share. The appellant and the 14th defendant are at liberty to
make their claims to that lot in a separate action.
This appeal is accordingly allowed, with costs payable by the14th; defendant-respondent.
R-^jaratnam, J.—I agree.
Ratwatte, .T.—I agree.
DAVID DANTANARAYANA, Petitioner- Appellant and L. A. NONAHAMY, Defendant-Re