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Present: Sir Charles Peter Layard, Chief Justice, Mr. JusticeWendt, and Mr. Justice Grenier.
FERNANDO v. FERNANDO et al.
D. 0., Chilaw, 26,448.
Partition Ordinance (No. 10 of 1863).
Where the survivoroftwospouses marriedin community
of property was allotted in a partition suit the entire share in a:land, which formed part ofthecommunity,andthe children of
the marriage applied tohavethe'decree setaside,alleging that ■ it
was irregularly ' obtained,andthatthey wereentitled, at the date
of thedecree, by right of maternal inheritance, toanundivided,
half share of the portion allotted to their father,—
Held(by the Pull’ Court), that inthe absence ofanyallegation
of fraud in obtaining the decree, andin the absenceofany proof
that the children had not received their proper share out of thecommon estate, the decree could not be set aside merely on theground of irregularity.
HE plaintifE instituted this action on 6th November, 1886,.
for the partition of a land called Maduwawatta, under the-
provisions of Ordinance No. 10 of 1863. The plaintiff claimed,an undivided one-fifth share of the land and allotted one-fifthto the first defendant, two-fifths to the second defendant, andone-fifth to the third defendant. Decree was entered of consentOn 1st December, 1886, for the partition of the land in the aboveshares; and final decree of partition was entered on 26th April, 1888;.On 2nd July, 1902, the appellants intervened in the suit, allegingthat they were the children of Agida Fernando, who was marriedin community of property to the third defendant in November,.1872; that the said Agida Fernando died on 13th February, 1881;and that on her death the appellants, who were then minors, became(entitled to an« undivided one-half share of the one-fifth part ofthe land in question, which formed part of the common estate oftheir parents. The appellants prayed that the decree entered inthe case be set aside, and that they, be added as parties to thesuit and the same proceeded with according to law. The thirddefendant died on 22nd March, 1901, and an administrator wasappointed to his estate. Prior to his death, to wit, on 9th February,1901, the third defendant had mortgaged by bond No. 3,264 theshare allotted to.him in the partition decree to. C.. A. Hutson to secure •.
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the payment of a sum of Rs. 40,000. C. A. Hutson' sued theadministrator, of the third defendant on the said bond and obtaineddecree dated 10th February, 1902, and registered on 7th April,1902.
The District Judge (H. E. Freeman, Esq.) having disallowedthe application to set aside the partition decree by his order dated25th August, 1902, the intervenients appealed.
Walter Pereira (ff. J. G. Pereira and E. W. Jayewardene withhim), for the appellants.
Domhont, K. C., for mortgagee (C. A. Hutson).
Bawa, for parties noticed by the Supreme Court.
Cur. adv. vult.
11th August, 1903. Layard C.J.—
The judgment of my brother Wendt, which has just been deli-vered, expresses the united opinion of the Full Court. I only desireto add that if, as was argued, the partition decree was obtainedirregularly and was invalid and inoperative, the requirementsof the law as to the entering of partition decrees not having beencomplied with, I do not see how the applicants (appellants), areinjured thereby. I understood their counsel to argue that undersection 9 of the Ordinance No. 10 of 1863 a decree for partitionis only good and conclusive against persons not parties to the suit,when such decree has been “ given ” in manner provided by thePartition Ordinance, i.e., only in cases where the Court has neglectednone of the procedure required to be followed in such suits so as tosafeguard the interests not only of the parties to the suit but out-siders also. Assuming that contention is right, it does not appearto me that if we upheld it we would, be justified in interferingwith a decree purported to be given under the Ordinance to protecta person not a party to 'the suit and not bound by it. The decreeis binding on those who were parties to it and took no exceptionto its being entered up, and, on the contention of appellant’scounsel, is not binding on the appellants, and so there is no adequatereason why they should be allowed to come forward to disturb it.
This appeal arises. out of a refusal of the District Judge to setaside si partition decree. The action was brought in November,1886, to obtain a partition of a parcel of land on the footing thatplaintiff owned one-fifth of it, first defendant one-fifth,. second
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defendant •two-fifths, and third defendant, the father of the appel- 1908:lants, one-fifth, and in these proportions the land was eventually August 11.divided amongst them, and by a decree dated 80th May, 1888, Wendt J.the Court declared the parties’ title to their parcels in severaltyand certificates issued to them accordingly. The ground of appel-lants’ application, which was first presented in July, 1902, is thatof their father’s undivided one-fifth share a moiety had devolvedon them by the death of their mother on 13th February, 1881,and that by not having been named as parties in the partitionproceedings they have lost their undivided one-tenth share of theland. At the death of their mother the appellants were minors;no administration was taken to her estate until letters issued .tothe first appellant in May, 1902. The father, Manuel Fernando,apparently continued in possession of the joint matrimonial estateuntil his death on 22nd March, 1901. Administration to his estatewas in August, 1901, granted to one Alenso Perera. The appellantsattained majority on the -4th March, 1895, 9th November, 1897,and 13th February, 1901, respectively. They resided with theirfather and under his care and guardianship until his death.
In their affidavit, read in support of the present application, theappellants deposed in general terms that until after the death of theirfather they were ignorant of the existence of the partition action,and that the partition decree was obtained irregularly and wasinvalid and inoperative, the requirements of the law as to the enteringof such decrees not having been complied with, no evidence of titleor possession laid before the Court, and the decree entered upsimply upon the agreement' of parties. There is throughout thepresent application no suggestion of fraud. Neither is there anyproof or even suggestion that the appellants have in fact lostanything by the action of their father in consenting to the Court’sallotting the whole one-fifth share to himself without mentioningthe interest already vested in his children. Assuming for themoment that the partition proceedings were so irregular thatthey cannot stand if attacked, and that the appellants, who wereno parties to these proceedings, are entitled to attack them, theymust yet show *that they have suffered damage by the proceedingscomplained of. It may be that Manuel Fernando intended toconserve his children’s interest by giving them half, or perhapseven the whole, of the parcel to be allotted to him in severalty,or he may have intended in some other way to compensate them,and he may in fact have carried out this intention. Certainlythe appellants are now the owners of that entire parcel, as theyare the heirs of their father and they are in possession. It is true
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August ll.Wendt J.
that they take it subject to the respondent’s mortgage, – an incum-brance created by their father after the partition decree, butwithout some account of their father’s estate it is not possiblefor the appellants to show that he has not left to them more thanenough to compensate them for the loss of their one-tenthshare. It may even be that the .very money raised on this mortgagewas invested in the purchase of lands which have now becomethe property of the appellants. The first and second appellantsattained majority some years before their father’s death. Theydo not disclose what arrangement they then made with their fatheras to their share of the rents and profits. It is difficult to resist theimpression that but for the prospect of getting rid of the respondent’smortgage nothing would have been heard of the present application.The appeal is dismissed.
I am of the same opinion. The grounds upon which the appellantsbase their present application to set aside proceedings which theyallege are irregular and inoperative are totally insufficient. Theproceedings took place nearly eighteen years ago, and we havenot been placed in possession of materials in order to be able toascertain what transactions have taken place in the interval betweenthe appellants and their father in regard to the joint matrimonialestate of himself and the appellants’ mother. I do not understandthe appellants to charge their father with fraud, and it is morethan probable that, although the proceedings in the partition, actionwere defective and not in accordance with the provisions containedin the Ordinance, after the decree was entered up the parti-cular interests of the appellants in the joint matrimonial estate,which they lost by the decree, have been otherwise compensatedfor. At least there is no proof before us that this has not beenthe case; arid the present application is intended, I think, to takeadvantage of the laxity of procedure in partition cases which wasunfortunately but too common until this Court, in recent years,insisted on the provisions of the Ordinance being strictly compliedwith, as the decrees passed in them bind the whole world.
FERNANDO v. FERNANDO et al.