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Prevent ; De Sampayo aul Schneider JJ.DULLEWE et at. v. DULLEWE et al.32—D. C. Kattjy, 28,349.
Partition Ordinance, 1868, a. 9—Action for damage* against parties to apartition action for depriving plaintiff of his share bp not dis-closing same to Court—Act of omission.
A purchaser from one of the bein of X instituted a part it tooAction on the footing that only the children of the brothers of Xwere the heir* of X, and that the sisters of X were not heirs.After preliminary decree the children of the brothers came to asettlement with the children' of the sisters and gave them in thetestamentary case a smaller portion than they would have been(entitled to had the sisters been intestate heirs. On the report ofthe Commissioner in the partition case being received, the plaintiffissued notice to the defendants (children of the brothers) to showcause against the scheme of partition being confirmed, and as theydid not appear to. show cause, final decree was entered. Thechildren of. the sisters thereafter brought this action for damagesagainst some of the children of the brothers under section 9 of thePartition Ordinance. 1863.
Held, that they were not entitled to damages.
The act of omission contemplated in section 9 implies some elementof wilfulness and intention to produce a prejudicial result; theomission must be of an set which one ik bound to do.
T HE facts are set out in the judgment.
Hayley, for defendants, appellants.
M. W. H. dc Silva (with him H. Y. l*erera), for plaintiffs, res-pondents.
July 0, 1922. Df. Sampayo J.—
The plaintiffs brought this action for dftnmges in pursuance of theprovisions of section 9 of the Partition Ordinance on the groundthat in D. C. Kandy, 21,604, which had been brought for the parti-tion of two lands, the defendants caused the plaintiffs to be deprivedof their share of the lands. The circumstances of the case aresomewhat peculiar, and on one or two points require serious con-sideration. Abraham Dullewe Adigur died in 1904 issue less, and lefthirn surviving two sisters, Tikirikumarihamy and Lokukumarihamy,and a brother Punchi Banda, and the childreu of a predeceasedbrother, Meddurrm Banda. The pluintiffs are the children of the twosisters,' Tikirikumarihamy and Lokukumarihamy, who are now
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dead. The first-, second, and third defendants are children of Med-duma Banda, and the fourth defendant is a purchaser of a sharefrom Medduma Banda, junior, who is .another child of MeddumaBanda, brother of the Adigar. At the trial the case against thefourth defendant was withdrawn, as it was bound, to fail, becausethe fourth defendant purchased long after fhe conclusion of thepartition action (D. C. Kandy, 21,664).
The Adigar left a large estate, and among other lands he was theowner of two lands called Walawwawatta and Gorakgahawela. Inthe year 1910 in execution against the children of Punchi Banda,who had in the meantime died, half of half share, i.e., one-fourth share,of the two lands, was sold,- and purchased by one Don ManuelAppuhamy. The case No. 21,664 above referred to, which was anaction for the partition of the said two lands, was brought on July 19,1912, by Don Manuel Appuhamy, claiming for himself a one-fourthshare, and assigning to the children of Medduma Banda, namely,the first, second, and third defendants to the present action, halfshare of the land, and to the children of Punchi Banda the remain-ing one-fourth share. The case took its usual course, and on June 24,1918, a preliminary decree wast entered by the . Court declaring the:parties entitled to the property in the above proportion, and orderinga partition. A commission was issued to effect the partition, mdthe Commissioner having submitted a scheme, of ‘partition, the Courton March 2, 1915, confirmed the same and entered final decree,allotting divided portions to the various parties.
The standpoint of the two brothers of the Adigar and of theirchildren was that the two sisters were married out in diga, and werenot, therefore, heirs of the Adigar, and that the two brothers becamesolely entitled to the two lands in question and other propertyof the Adigar in the proportion of half'share to each of them. Thatquestion was fought out in two previous actions, Nos. 19,609 and21,809, of the District Court of Kandy,' in both which the claim 'of the sisters was rejected by decree both in the lower Court and inappeal, and it was held that the two brothers alone were entitled tothe property as the sole heirs of the Adigar. The decree in the firstcase was given in the District Court in 1908 and in appeal in 1911,and the decree in the second case was given in the . District Court in1911 and in appeal in 1913. The subject of these two actions wassome other property of the Adigar’s estate, but the District Judgehas rightly considered that the decisions in those cases show that thesisters of the Adigar were not his heirs, and that the plaintiffs hadno title on that footing to any share in the lands Walawwawatta andGorakgahawela, and were properly not made parties to the parti-tion action No. 21,664. But an older made in the testamentary case2,375, in which the estate of the Adigar was administered firstby his brother Punchi Banda, and on his death in 1907 by LokuBanda, the first defendant in the present- action, is said to have
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given them a title to one-third share of the said two lands. Ad-ministration had been taken out and proceeded with on the footingthat the only heirs of the Adigar were his brothers, and the sisterswere not named as respondents at all. In February, 1913, however,Tikirikumarihamy, sister of the Adigar and mother of the fourthplaintiff in this action, and the first, second, and third plaintiffs,children of the other sister, who had died in 1905, applied to theCourt by petition for a judicial settlement of the administrator’saccount, and prayed that the administrator “may be compelled tomake a judicial settlement of the said estate, on the footing that thepetitioners are entitled to a half share thereof.” The parties, how-ever, appear to have made an amicable arrangement among them-selves, and in terms thereof an order was entered on March 19, 1914,declaring the petitioners “entitled to an undivided one-third shareof the estate of the said deceased” in the proportion of one-sixthto the first petitioner (Tikirikumarihamy) and one-sfxth to the otherpetitioners, and the defendants and their co-heirs to the remainingfour-sixths of the estate in proportion to their respective interests.It will be noticed that this order was entered after the date of thepreliminary decree in' the partition action No. 21,664, but before thedate of the final decree. The present action for damages is broughtapparently because the defendants omitted to inform the Court of thesettlement in the testamentary suit before final decree in the parti-tion decree was entered. It is alleged, that they “ fraudulentlymade the Court to understand that they (the defendants) were thesole heirs of the late Dullewe Adigar,” and had a partition decreeentered in their favour.
In the partition action the defendants, in addition to the defend-ants in this action, were their brother Medduma Banda, junior, andthe four children of Punchi Banda, deceased. The present defend-ants acted exactly in the same way as the other defendants in thepartition action, and did nothing more or less. I cannot understandwhy they should be selected as the parties responsible to the plain-tiffs in damages. As. a matter of fact, it was Don Manuel Appu-hamy as plaintiff, who, on the report of the Partition Commissionbeing received, had notice issued to all the defendants to show causewhy the scheme of partition should not be confirmed and final decreeentered. It took a long time to serve this notice, and when it wasfinally served, and the matter came before the Court, none of thedefendants appeared, and only the third and sixth defendants (notdefendants in the present action) appeared by a proctor. In thesecircumstances, the question naturally arises whether the defendantsin this action can be made liable under section 9 of the PartitionOrdinance, which enacts that ‘‘nothing herein contained shall- affectthe right of any party prejudiced by such partition or sale to recoverdamages from the parties by whose act, whether of commission oromission, such damages had accrued.” There was certainly no
“act of commission" done by them. Was their failure to informthe Court of the settlement in the testamentary case, an "act ofomission " such as the section contemplates ? It seems to me thatthe expression "act of omission" implies some element ofwilfulness and intention to produce a prejudicial result, and thatthe omission must be of an act which one is bound to do. Is theirabstention from objecting to the steps taken by Don ManuelAppubamy to carry out the preliminary decree for partition asordered such an act of omission ? I doubt it. The plaintiffssingularly failed to establish their allegation that the defendants"fraudulently made the Court to understand that'they were the soleheirs of the Adigar." As the District Judge rightly found, thepreliminary decree was quite correct, and the plaintiffs had no caussto complain of it. As regards the final decree, even if the Court wasinformed of -the settlement, there would have been a practicaldifficulty in introducing it into the partition case. Don ManuelAppuhamy was not a party to the settlement, and was not boundby it, nor were two out of the four children of Punchi Banda. Theymust get their full shares under any circumstances. Is the share,which the plaintiffs got under the settlement, to come out of thedefendants’ shares alone ? Or is the plaintiffs' one-third share tobe proportionately reduced ? In either case the settlement by whichthe defendants and their co-heirs were to get four-sixths sharesand the plaintiffs one-third share of the estate would itself be upset.These perplexities make it difficult to say that the defendants wereguilty of a culpable act of omission.
There is another and more important aspect of the matter. Theground of the District Judge's judgment is that the plaintiffs had notitle to any interest in the two lands before the settlement, as theywere not heirs of the Adigar, but that by the consent order in thetestamentary case one-third share of the lands was "transferred"to them. The Court did not and could not make such a transfer.A proprietary decree is not a mode pf transfer, it can only be, undercertain circumstances, the basis of an estoppel. If there was atransfer, it could only have been by the defendants and their co-heirs,the respondents, to the' application for judicial settlement, and inthat case the transfer would be obnoxious to the provision of section.17 of the Partition Ordinance and invalid, and the plaintiffs shouldbe in no better position than they were before. Again, what is thereal meaning of the consent order ? It does not declare the plaintiffsentitled to one-third share in the lands in question, or in any parti-cular property. It declares them entitled to one-third share of the" estate." I think it has not the effect of giving to the plaintiffsone-third share in every individual asset of the estate. It at bestdeclares that in the ultimate distribution of the estate they shall getwhat may be equivalent to one-third shai’e of the whole. Conse-quently I think the plaintiffs never had title to one-third share of
the specific leads which were partitioned by the action No. 21,664.and were therefore hot prejudiced by any act done or leit- undone bythe defendants.
The above being my opinion on the main questions in the case,it is unnecessary for me to deal with the defendants’ plea of pre-scription. 1 need only say as at present advised that if I had todecide that point I should have said the plea was good. For thereasons above stated, however, I think the judgment under appealshould be reversed and plaintiffs* action0 dismissed, with costs, inboth Courts.
Schneider J.—1 agree.
DULLEWE et al. v. DULLEWE et al