MACDONBLL C.J.—Jandiris v. Deve Renta.
1932Present: Macdonell C.J. and Lyall Grant J.JANDIRIS et al. vDEVE RENTA el aL
47—D. C. Galle, 26,265.
Evidence—Document qdmitted in appeal—Exhibittaken from record—Courts
Where it is sought to produce in appeal a document which has beendiscovered as an exhibit in the record of a previous action, referred toin the course of the proceedings,—
Held, that the document may be admitted under section 40 of theCourts Ordinance.
^j^PPEAL from a judgment of the District Judge of Galle.
Rajapakse, for plaintiffs, appellants.
; N. E. WeerasoQria (with him Wikramanayake), for defendants,'respondents.
, February 9, 1932. Macdonell C.J.—
This is a partition action of a rather complicated character, and theCourt should be much indebted to the care.with which-Mr. Rajapaksefor the appellant elucidated the story, but now that it has been fullyargued on both sides the number of points in dispute has been narroweddown to three in number.
The case of the first and second plaintiffs is that one HendayamanMendiris was the owner of one-half of the land to be partitioned and theyseek to establish this by the following evidence. They say that the
MACDONELL C.J.—Jandiris 9. Deve Renta.
original owner of the whole land was* one Franciscu de Silva, possiblyby virtue of a not produced deed of 1839. He died leaving a widow,.Edirimuni Sanohamy, and an only child, a son, Sadris de Silva; byinheritance they would be entitled to one-half each and there is sufficientevidence that these rights did come to them by inheritance. ThisEdirimuni and Sadris, respectively widow and son of the deceasedoriginal owner Franciscu, granted to Mendiris, under whom theplaintiffs claim, a planting agreement on deed No. 6,001 of October 8,1841, P 3. There was considerable argument before us as to the meaningof this document and a special translation had to be made during thecourse of the appeal for the use of the Court, but the document is certainlycapable of meaning that Mendiris acquired under it some rights to thesoil, as well as planting rights. The plaintiffs in their case put theirrights to the soil under P 3 at one-twelfth, but the deed itself is silentas to the extent of the rights to the soil, if any, which Mendiris acquiredunder it; the question will be referred to again later. Seven years,later on August28,1848,the sameEdirimuni, widow of Franciscu the
original owner,andoneHakkini.Balohamy, widowof Sadris the*
. before-mentioned only child of that Franciscu, joined in a usufructuarymortgage No. 4,700, 30 D 3, of all their interest, which would be three-fourths of the wholeland,in favourof one Thenga, andon October 19,
1848, that is inthesameyear, i.e.,about seven weekslater, the same
Edirimuni, widow of Franciscu, conveyed in full dominium to the sameThenga by deed No. 2,898, marked X, the whole of the interest in thesoil which she had inherited from her husband Franciscu; this interestwould be one-half. Thus Thenga, usufructuary mortgagee of three-fourths, became also full owner of a one-half. On February 1, 1855, thesame Thenga by deed No. 265, P 1, conveyed to, Mendiris one-fourthof the soil.
This deed No. 2^898 of October 19, 1848, X, was not produced at the-trial and its absence led the learned trial Judge to raise the relevantquestion, how could Thenga, only a usufructuary mortgagee in 1848,convey a dominium in 1855 on P 1, and as the plaintiffs did produceas part of their evidence the pleadings in case D. G. Galle No. 23,317,P 17, filed April 20, 1865, and brought by Mendiris in connection withthis land, the replication in which does refer to an exhibit as establishingMendiris* right to one-fourth of the land, it was an omission on theirpart not to search for and produce that exhibit, which if they hadsearched for, they would have found to be this deed No. 2,898, X. Onthe other hand the usufructuary mortgage of 1848, 80 D 8, was not onthe defendant’s list of documents and only became known to the plaintiffs-by being produced by thirtieth defendant 'when giving evidence. After’judgment in the present case and appeal lodged, plaintiffs searchedthe record of D. ■ C. Galle, No. 23,317, P 17, yet again, discovered the*exhibit therein document No. 2,898, X, and applied for leave to produceit. The Begistrar-General states that the original in his records istattered and illegible. We' decided to admit the document X underthe power given by Ordinance No. 1 of 1889, section 40. Certainly,this power must be exercised with every caution, partly because theSupreme Court is not in civil.matters a Court of trial but of appeal and
MACDOXELIj C.J.—Jandiri* v. Deve Renta.
review, and chiefly perhaps because of the danger that evidence notproduced below but sought to be produced to it for the first time, willbe manufactured for the occasion. This is a very real danger whichwas fully before us in considering the application to admit X. but weconsidered that in the present case the danger was reduced to a minimum.For one thing, the evidence was documentary and not oral, and foranother, tin* document sought to be put in did not come from thecustody of the plaintiffs or from anyone connected with them but fromthe custody of a Court of record and from among the records of thatCourt. This document X establishes that Thenga had the right toconvey to .Mendiris in 1855 one-fourth of the land on P 1.
The next material event was that in 1858 by deed No. 812, 30 D 1,Sadris’s widow Hakkini Balohamy aforementioned- and hi's threechildren joined in selling one-half to one Dines who later on in 1865 bydeed No. 2,048, 1 16, 80 D 2, sold this one-half to one Jangiri and to one.Nnndoris, semble for an undivided one-fourth each; Nandoris. it may bementioned, was a son of Mendiris. These two purchasers on P 18 afterwardspartitioned the land by action D. C. Galle, No. 25,487. This partitionaction necessitated the usual surveyor's plan and report, P 14, of dateMarch 6, 1874, and in his report the surveyor specifies the personsthen in possession as being .Mendiris, his son Nandoris, and one Amawho was Mendiris' son-in-law, for three-fourths of the land, and Jangirisfor the remaining one-fourth. This shows that Mendiris was in.possession at the date of that partition action, 1874, but it does notspecify what fractional rights to the soil he claimed to be possessed of.
On January 17, 1877, Mendiris obtained by Fiscal's transfer of thatdate, P 2, 30 D 4, a conveyance to him of two-twelfths of this landwhich two-twelfths had on August 9, 1871, been sold in execution againstits owner Andris de Silva and purchased by Mendiris. This Andrisde Silva was one of the defendants in the case of April, 1865, D. C.Galle, No. 28,817, the pleadings in which are exhibit P 17 as has beensaid. It was an action by Mendiris claiming to be quieted in hispossession of one-half of certain planting rights. The defendants in theiranswer admitted his title to one-fourth of the soil but only admitted histitle to one-fourth, of the planting rights instead of to the one-half whichhe claimed. Why was Andris de Silva macle a defendant in that case?Obviously because he claimed rights in the land in question. The result ofthe case is not known but it must have been unfavourable tot Ajadris deSilva since the Fiscal’s conveyance 30 D 4 bears No. 23,317, the verynumber of the action brought by Mendiris in April, 1865. It was argued forthe respondent that 30 D 4 proved nothing in the absence of further evi-dence that Andris did own the two-twelfths sold. This being a partitionaction a party, in Ahis case the plaintiff, must prove his title but theproof required of him must be reasonable having regard to dates andcircumstances. The party produces a conveyance to hjs predecessorsin title of two-twelfths on a Fiscal’s transfer over 50 years old, therebeing nothing oral or written to suggest that the two-twelfths did notpass to him on it. It was argued that this was not evidence which ina partition action a Court should hold to be sufficient proof that the.two-twelfths duly passed, but no authority was cited for this argument.
MArDOXKIjJj <*..!.—JatuUrix v. Derr Ifcnlti.
These then are the documents, P 1 and P 2 or 30 I) 4, on which plaintiffsseek to show that Mendiris owned five-twelfths of the soil out of thesix-twelfths or one-half which they claim for him in their plaint. To-my thinking the proof they furnish is ample, and nothing, documentaryor oral, has been produced to contradict them. The only difficultyis the remaining one-twelfth, the claim to which is based on P 3, theplanting agreement. Now the translation made for this Court is capableof meaning that Mendiris got by it some rights to the soil. But it issignificant that Mendiris in his replication in the case of 1865, D. C-Galle, No. 23,317 P 17, accepts the defendants' admission that heowns one fourth of the soil—he had acquired this fraction on P 1 in 1855—but does not claim that he is entitled to anything more than one-fourthof the .soil. (The two-twelfths he could not mention, since they onlycame to him in 1877, twelve years later.) Yet if he had obtained anyfraction of the soil by the planting agreement P 3, one would have expectedhim to say so in that replication. His explicit assertion of right toone-fourth is very like an admission that he does not assert right toanything more. Nor does the surveyor's report of March 6, 1874, in thepartition action D. C. Galle, No. 25,437, help to establish such a rightin Mendiris. That report states that three-fourths of the soil belonged toMendiris and Nandoris, his son, and Ama, his son-in-law, by purchase,but does not say in what proportions. Nandoris had acquired a one-fourth on P 13 and Meudiris another one-fourth on P 1, and it is quitepossible that Ama’s share accounted for the other one-fourth. Theevidence comes to this; no document is produced specifically statingthat Mendiris got one-twelfth on the planting agreement P 3 or at anyother time, and there is one document, the replication in P 17, whichby its silence suggests that he did not then, in 1865, own that one-twelfth.But there is no evidence to show that he obtained a one-twelfth atany time subsequent to 1865. If so, the plaintiffs' claim that Meiidiris-was entitled to this one-twelfth, additional to the five-twelfths whichthey have proved that he was entitled to, must- fail.
With the plaintiffs the thirteenth defendant also appeals. He*establishes certain rights to share in the land on deeds P 8, P 9, P 10,-all duly registered, and his claim was not contested on appeal. Thejudgment appealed from says “ the claim of forty-first defendant isdefeated by the registration of P 8, and P 9, and was not pressed at thetrial ”, yet in his preliminary decree the learned District Judge omitsthe thirteenth defendant altogether. The appeal of the thirteenthdefendant must therefore be allowed also.
With regard to the costs of this appeal: in the Court below thesufficiency of P 1 to convey a one-fourth to Mendiris was contested,,and the judgment appealed from holds that- P 1 was not valid to conveythe one-fourth it purported to convey. The plaintiffs then had to*come to this Court to get the decision now made in their favour that P 1was valid to convey a one-fourth. During the course of the appealbut not at once, the respondents' Counsel did' admit that P 1 was validto convey the one-fourth but he contested strongly the validity of P 2,30 D 4, to convey the two-twelfths. In whatever way one looks atthe case, it seems to me that the plaintiffs had to make appeal to this:
Scneviratne v. Scneviratne
Court to get the rights to which they are now declared to be entitled.If so, there seems no reason to deprive them of the costs in appeal wheresubstantially they have succeeded.
Before dismissing this matter it is necessary to say a word or twowith regard to the judgment in this case. One is grateful to the learnedDistrict. Judge for the valuable summaries which he has made of theevidence of the first plaintiff and of the thirtieth defendant, the two chiefwitnesses called, but the judgment itself in a very complicated caseonly runs to 14 lines. That judgment does not make it really plainwlial fraction of the land learned District Judge thinks Mendiriswas entitled to and, as 1 have pointed out, it omits altogether to dealwith .the case of thirteenth defendant. With all respect this does notseem to me to give t.o the parties involved, to say nothing of the Court ofAppeal before which the case may ultimately come, the considerationto which they are entitled in so difficult a matter as the present case.
The order in this case must be as follows:—Appeal allowed with costs.The case is to go back to the learned District Judge with .the declarationthat Mendiris was entitled to a five-twelfths share of the land and notto any less fraction, also with the declaration that the thirteenthdefendant is entitled to share as claimed by him; likewise an orderthat the learned District Judge do allot shares on such basis.
Lyall Ctrant J.—I agree.
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JANDIRIS et al. v. DEVE RENTA et al