Kumarihamy v. Weeragama.265
Present: Hearne, Keuneman and de Kretser JJ.
KUMARIHAMY v. WEERAGAMA et al.
20—D. C. (Inty.) Kandy, 310.
Partition action—Compromise affecting rights of parties inter se—Binding on-parties to agreement.
By Hearne and de Kretser JJ. (Keuneman J. dissenting).
An agreement, which is entered into in a partition action, affecting onlythe rights of parties inter se, and which is expressly made subject to theCourt being satisfied that all parties entitled to interests in the land arebefore it and are solely entitled to it, is binding on the parties and is notobnoxious to the Partition Ordinance.
. ASE referred to a Bench of three Judges ; the facts appear from theW judgment of de Kretser J.
H. V. Perera, K.C. (with him Cyril E. S. Perera), for the first defendant,* appellant.—The question for decision is whether in a partition action theparties can, before the stage of investigation into title by Court is reached,enter into a compromise which is to take effect after the Court hasascertained the co-owners and their respective shares. The solution tothe problem may be obtained when one considers the nature of a partitionaction.
There is no positive rule of law imposing a duty on Court to make aninvestigation into title and to prevent collusion between parties. Theduty is only derived from the rule that decrees for partition are conclusiveagainst the world. The duty is to protect the interests of parties who arenot before Court, i.e., to see whether the parties appearing are entitled tothe whole property as against the rest of the world. In the present casethere is a very clear appreciation, of the duty of Court. A partition actionis firstly an action to partition a land owned in common, and, secondly,it decides certain disputes between the parties who are before Court.Parties are entitled to settle their own special differences. Such a settle-ment is contrary neither to the Partition Ordinance nor to any otherprovision of law. The cases of Nagamuttu v. Ponnampalam et al.', andSan chi Appu v. Marthelis et al.' are helpful.
There is nothing in the Partition Ordinance to prevent the settlementof a dispute between the parties who are before Court. Section 4 speaksof “ examination ” of title, and not of determination of title. All that isnecessary is that the rights of third parties are not prejudiced. Section408 of the Civil Procedure Code is available in partition suits. Theagreement in the present case is binding on the parties, and it is not opento any of them to resile from it.
N. E. Weerasooria, K.C. (with him L. A. Rajapakse), for the plaintiff,respondent.—The Court must in all cases of partition carefully investigateall titles, and must refuse to make title on admissions—Fernando et al. v.Mohamadu Saibo et al. ’; Mather v. Thamotheram Pillai'; Umma Sheefa v.Colombo Municipal Council"; Golagoda v. Mohideen’.. The jurisdiction ofthe Court to investigate title cannot be ousted by compromise of parties.
(1903) 4 Tamb. 29.4 (1903) 6 A'. L. R. 246.
(1914) 17 N. L. R. 297.6 (1934) 36 N. L. R. 38.
(1899) 3 N. L. R. 321." (1937) 40 N. L. R. 92 at94.
266DE KRETSER J .—Kumarjhamy v. Weeragama.
[de Kretser J. referred to Assana Marikar v. Punchimahatmaya'].
That case is referred to in Jayawardene on Partition at p. 310. Thepractical effect of an arrangement like the one in the present case wouldbe to destroy the principles laid down by the Supreme Court in variouscases.
A compromise entered into before any evidence is led is on a differentfooting from a compromise made after the evidence has been led. If the.former is permitted, Court may settle questions of title too summarily.Further, parties may act in cojlusion, and rights of third parties may beprejudicially affected. See J ayawardene on Partition, pp. 75, 245-255;Peris et al. v. Perera et aU; Abdul Hamidu v. Perera''; Godage v. Dias'.
H. V. Perera, K.C., replied.
Cur. adv. vult.
May 8, 1942. de Kretser J.—
The facts leading up to this appeal are as follows : —Plaintiff broughtthis action to have a land called Welgalahena partitioned on the footingthat two-thirds of it belonged to him and the remaining one-third to thetwo defendants, the first; of whom is a minor. He filed a pedigreeindicating how title to the land had devolved and according to it one LokuKumarihamy was entitled to one-third and had transferred that share toplaintiff.
The second defendant alleged that Loku Kumarihamy had previouslytransferred that one-third to her and plaintiff’s position thereupon wasthat the earlier deed had been revoked. Before evidence was taken thecontesting parties, in order to avoid prolonged litigation, came to termsand intimated to the Court that in view of this consideration they werewilling to make a compromise after the Court had been satisfied as to proofof the title.
A minor being interested, the Court considered the proposedcompromise and decided that it was beneficial to the minor and sanctionedit.
On a subsequent date the plaintiff wished to resile from the compromiseand defendants objected t® his doing so. The Court held that thecompromise would be binding in any other type of case but that in apartition case the Court had the duty of investigating the title of each ofthe parties and could not ignore that duty and that it would be obligatoryon the Court to investigate and allot to each of the contestants what thatparty was entitled to.
What we have to decide now is a pure question of law, viz., whether anagreement, entered into in a partition case affecting only the rights of theparties inter se and expressly made subject to the Court being satisfiedthat all the parties entitled to interests in the land are before it and aresolely entitled to it, is obnoxious to the Partition Ordinance.
A number of decisions of this Court have emphasized the duty of theCourt to investigate title fully and not treat a partition action as an actioninter partes. The emphasis is always on the necessity to investigate title.
i 11920) 8 O. W. R. JS2.? (1925) 26 N. L. R. 433.
* (1896) 1 N. L. R. 362 at 367. '1 (1928) 30 N. L. R. 100.
DE KRETSER J.—Kumarihamy v. Weeragama.267
To use the language of Layard C.J. in Mather v. Thamotherwm Pillai thejudge “ must satisfy himself by personal inquiry that the plaintiff hasmade out a title to the land sought to be partitioned and that the partiesbefore the Court are solely entitled to the land That position is clearbeyond any doubt. A judge cannot be too careful in Ms investigationand nothing can relieve him of that duty. He has every right to callfor evidence even after parties have closed their cases—Thayalnayagam v.Kathiresapillaiand it would be wise on Ms part to call for anencumbrance sheet and see what transactions have affected the subject-matter of the action. It is freely conceded that any agreement whichsought to relieve him of his duty would be obnoxious to the PartitionOrdinance and might, if allowed by him, convert the action into whatde Sampayo J. called a “ special ” action—Aseena Marikar v. PunchiMahatmaya
But the question is not whether he should investigate title and beassured that the parties solely entitled to the land are before him, butwhether once that stage is reached he should object to the parties soentitled adjusting any differences there may be among themselves.
No case has been cited to us which has disapproved of parties settlingtheir rights inter se. No provision in the Partition Ordinance refers tosuch a contingency and therefore there is none prohibiting it. It has longbeen established that the Civil Procedure Code governs such actions inthe absence of express provision, and the Code recognizes compromises.
While there is no case disapproving, there are dicta to the effect thatparties may settle questions which arise inter se, e.g., Nagamuttu v.Ponnampalam' and Sanchi Appu v. Marthelis et al*.
It is sought to distinguish these cases by the argument that they referto agreements made after the Court had decided the rights of the parties.I see no difference in principle between agreements at such a stage andagreements which are to take effect only when such a stage is reached.
Assena Marikar v. Punchi Mahatmaya (supra) is a peculiar case. Theretoo a contest had been settled by compromise and no objection was taken toit by this Court. In that case no further inquiry seems to have been heldand the decree may not therefore have had the effect of a final decree underthe Partition Ordinance though it did effect a partition. The Court’sobservation about it being converted into a “special” action waswedged in between other observations.
As I understood Counsel fqr respondent, the main reasons urged againsta compromise were—
It is possible after adjudication, but not at an earlier stage, because
the former does not oust the jurisdiction of the Court and thelatter does ; the latter is against public policy, because the resultwould be laxity on the part of a trial judge. "
Undisclosed parties may suffer, e.g., a person having a prescriptive
title or a mortgagee.
With regard to the first objection, there is no question of ousting thejurisdiction of the Court, and one must assume that trial judges will
1 (ISO3) 6 X. L. R. S4G.= 8 C. W. R. US.
– 5 Bat, 10.* 4 Tamb. 29.
s 17 X. L. R. 297.
DE KRETSER J.—Kumarihamy v. Weeragama.
perform their duty. It cannot be too strongly emphasized that theyshould fully investigate the title and make sure the land belongs solely tothe parties before it. A compromise ought to make them even morewatchful, if such a thing is possible.
With regard to the second point, when the judge finds that the rightsof third parties are affected, then he cannot give effect to a compromisebased on the assumption that only the parties before him were entitled torights in the land or had interests therein. Possession is necessarily oneof the points he must inquire into. For a person in possession hot to havenotice of the preliminary and subsequent surveys and of all otherproceedings, and for all persons parties to the action and living in theneighbourhood of the land to engage in a conspiracy of silence would beso extraordinary as hardly to deserve a special rule of law to provide forsuch a contingency.
The position of a mortgagee is 6nly slightly different. The plaintiff isrequired to disclose all mortgages, mortgagees being coupled with ownersin section 2 of the Ordinance. In section 4 the Court is enjoined not onlyto examine the titles of all the parties and to ascertain their shares butalso their, “ interests ”. In Girigoris Appu v. Meedin it was indicatedthat persons claiming any interests should be joined, and that Courtsshould follow the practice in equity and direct inquiries to be made.There is no provision of the law and no decision that a mortgagee cannotbe a party, and a vigilant mortgagee will always intervene to protect hisrights. Unlike other persons who must intervene or be bound by the' decree, whatever claims they may have had, mortgagees and lessees aregiven a special position by sections 12 and 13, and special provision ismade as to what rights they will have in case they are interested inundivided shares and a partition is ordered. If, therefore, a mortgagee isvigilant and if a judge does his duty, as we must presume he would, theexistence of any mortgage ought to be discovered. In spite of suchvigilance parties may be adversely affected, 'but that is not peculiar tomortgagees and the Partition Ordinance contemplates the possibility ofsuch a thing happening and provides for a claim for damages.
Too much emphasis has been laid during the argument on the possibilityof judges being careless and of parties being knaves. When consideringa question of law we cannot assume that the law contemplates suchsituations.
It seems to me that we have travelled far enough in making partitionactions elaborate and costly, and while that could not be helped whenemphasis was laid on the need for full investigation of the title of theparties to the land, it is unnecessary to make partition proceedingsneedlessly burdensome and to force contention unless we have some clearprovision which takes away the right of parties to settle their disputesinter se.
In this case the parties informed the Court of the reasons for thecompromise and expressly drew the Judge’s attention to his own obli-gations in the matter. A minor was affected and the Judge considered 1
1 4 Tamb. 105.
Robins v. Grogan.
the compromise from the point of view of the minor and found itadvantageous to the minor and then, after some time had elapsed, it wasnot the minor’s guardian who changed his mind but the plaintiff!
Section 500 of the Code says that an agreement entered without theapproval of the Court shall be voidable against all parties other than theminor. Here it is sought to make the agreement void as against the minor.
We are not concerned at this stage with what may happen next. Theparties may treat this as a special action ; the judge may not do his duty:third parties may come in. The effect of such developments cannot beforeseen and provided for. What we now decide is that, when the Courtis invited to investigate title and, having done so and having been satisfiedthat the parties before it alone have interests in the land to be partitioned,thereafter to allow the parties to compromise their dispute, there is nothingto prevent the Court allowing this to be done, and once it is allowed theparties are bound by their agreement.
The appeal is allowed with costs in both Courts.
Heabne J.—I agree.
Keuneman J.—I regret I do not share the opinion expressed by mybrother de Kretser. In this case the compromise is not based on oneparty abandoning opposition, but is an agreement to divide among theparties concerned a share of the land, the whole of which should go on thetitle to one party or the other. I think the District Judge was entitledin the partition proceeding to refuse to give effect to this conditional com-promise. But as my two brothers are agreed, the appeal will have to beallowed.
KUMARIHAMY v. WEERAGAMA et al