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MATHER v. TAMOTHARAM PILLAI.
D. C. Jaffna, 2,429.
Partition suit—Reference to arbitration—Ordinance No. 10 of I860—Ordinance
No. 16 of 1866-rCivil Procedure Code, s. 691.
A partition suit is not a mere proceeding inter partes to be settled of .consent, or by the opinion of the Court upon such points as they chooseto submit to it in the shape of issues. It is a matter in which the Courtmust satisfy itself that the plaintiff has made out his title, and unless hemakes out his title his suit for partition must be dismissed.
Inpartition proceedings the paramount duty is cast by the
Ordinance upon the District Judge himself to ascertain who are theactual owners of the land. As collusion between the parties is alwayspossible, and as they get their title from the decree of the Court, whichis made. good and conclusive as against the world, no loopholes shouldbe allowed for avoiding the performance of the duty so cast upon theJudge.
In enacting the Ordinance No. 15 of 1866, the Legislature did notconfer on a Judge power to refer the matters in dispute in a partitionsuit to arbitration. –
The award of an arbitrator given upon such a reference is whollybad, and no interlocutory decree can be entered in terms of it.
HIS was an appeal against an interlocutory decree entered ina partition suit in terms of the award of an arbitrator.
The plaintiff, the defendants, the substituted defendants, and theadded parties applied to the Court to refer “ all matters and
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differences between them in the above-named action ” to aperson agreed to by them. The order of reference appointed thearbitrator named “ to determine all the said matters and differencesbetween the parties ”, and vested the arbitrator with ” all suchpowers or authorities as are vested in arbitrators under the Code ofCivil Procedure
In due course the arbitrator heard evidence and gave his awardthat certain shares of the lands belonged to certain parties, and thatthe cost of the partition suit should be borne by the parties inproportion to the shares of each.
The tenth, eleventh, and twelfth added parties, and the first andsecond substituted defendants, objected to an interlocutory decreebeing entered in terms of the "decree.
The District Judge (Mr. W.Sanders) entered of record as
follows:—“ The counsel for the parties^ who object to the award hasnot' been able to obtain a copy of the judgment of the SupremeCourt in which that Court is said to have held that a partition suitcould not be referred to arbitration. But in the present case allthe parties consented to the reference, and none of the grounds'mentioned in section 691 of the Civil Procedure Code have beenurged for setting aside their award.. Enter interlocutory decreein terms of the award. Objectors to pay the costs of theobjections ”.
The interlocutory decree being entered, the objectors, appealed.
H. A. Jayawardene, for appellants, cited C. R., Chilaw, 7,128,decided by Mr. Justice Grenier on the 22nd May, 1902, and Perisv. Perera (1 N. L. fi. 363). Collusion between plaintiffs anddefendants is always possible in partition cases. Bonser, C. J.,therefore held that the District Judge should take care that theinquiry should not' be conducted in a perfunctory way. HisLordship cast upon the Court the duty of satisfying itself not onlythat the plaintiff had made out his title, but also that all the partiesinterested in the land were made parties in the action. Further-more, it was the duty of the Court to determine what the respectiveshare of each party was, and, in case all the parties could notbe found, to allot severally the shares of the persons who haveproved their rights to them, and where an order to sell has been'made to retain in its hands the value of the shares of suchowners as have not come forward to prove their title to it. Inview of these special duties in partition cases, it is not competentto the District Court to refer a partition suit to arbitration.
Ramandthan, S.-G., for plaintiff,respondent.—The power
of modifying an award given to the District Judge under section
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1903.688 of the Civil Procedure Code and seotion 25 of the Arbitration
MayJIS.Ordinance, No. 15 of 1866, makes it possible to work the Partition
Ordinance together with the procedure enjoined for reference toarbitration. The Ordinance No. 15 of 1866, section 3, enacts thatall matters in dispute between the parties which may form thesubject of civil action may be submitted to arbitration, and thereis nothing in that Ordinance or in the Partition Ordinance,No. 10 of 1863, expressly prohibiting a reference to arbitration ofpartition suits. Granting that there is a special duty cast on theDistrict Judge to see that no one’s title to lands sought to bepartitioned is omitted to be inquired into, the only questionis whether certain issues regarding certain titles of certain share-holders may not be referred to arbitration. So long as the DistrictJudge has the power of modifying an award which is in excess ofthe reference or falls short of it, there does not seem to be anyreason why such definite questions of title in partition casesshould not be referred to arbitration, either by consent of theparties themselves or at the instance of the Court on grounds ofconvenience. Upon an award being brought into Court, if theDistrict Judge sees that the special question referred to the ■arbitrator has been fully and precisely dealt with and the awardrdoes not require to be revised in reference to the rights of anyother shareholder, why should not the District Court enter adecree in terms of the award? It has not been shown in thepresent case that there was collusion among the parties, or thatthere was an outstanding owner.
Van Langenberg, for eighth, ninth, tenth, and eleventh defend-ants, respondents.—The award is good and conclusive as betweenthe parties who consented to the reference, though it may not begood against all the rest of the world. The effect of the applica-tion made by the parties to a reference is that the partition action,by reason of such an agreement, ceases to be an action raisedunder the Ordinance No. 10 of 1863. The Court can now enterfinal decree according to the award, and that decree will bind onlythe parties to this case.
Wadsworth, tot twenty-first defendant, respondent.—If theaward binds the parties to this case it cannot be set aside, exceptfor one of the grounds mentioned in section 691 of the ChoiProcedure Code. It is not challenged now for any of thosereasons.
H. A. Jayawardene, in reply, cited judgment of Privy Councilreported in I. L. R. 9, AU. 191.
Cur. adv. vuIt.
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15th May, 1908. Layard, C.J.—
In this case the plaintiff seeks to partition a certain land betweenhimself and his co-owners.
On the 21st July last year all matters in difference betweenthem in the case were referred to arbitration. The arbitratorappointed duly made his award, and on the 18th January, 1908, theDistrict Judge, purporting to act under the provisions of section 4of the Partition Ordinance, No. 10 of 1863, directed that aninterlocutory decree of partition should be entered up in terms ofthe award. The first and second substituted defendants and thetenth, eleventh, and twelfth added parties appeal on the groundthat the reference to arbitration was illegal, and consequentlythe order of the District Judge of the 13th January is bad, andthey pray that the reference to arbitration and all proceedingssubsequent to the 20th July, 1902, be quashed, and that the case bereturned to the District Judge to be tried in manner provided bythe Ordinance No. 10 of 1863.
The question to be decided by us in this appeal is whether theJudge can, with the consent , of parties, make an order referring thematters to be decided by him in a partition suit to the arbitramentof a third party. The Legislature has by the Ordinance No. 10 of1863 provided a procedure by which co-owners can compel apartition or sale of a land held by them in common. The partywho demands partition or sale is to file a libel (plaint) in a Courtof competent jurisdiction, particularly describing the propertyand stating the extent of his share, and the names and residencesof the co-owners and mortgagees, and the extent of their respectiveshares and interests, and praying a partition or sale thereof, as thecase may be. The Court then issues summons to the partiesnamed by the plaintiff, calling upon them to appear and show causewhy a partition or sale of the common property should not bedecreed. If the defendants upon being served with a summons,in manner provided by the Ordinance, make default in appearance,section 4 provides the Court shall fix a day to hear evidence insupport of the application, and on the day of trial must hearevidence in support of the plaintiff’s title and the extent of hisshare, and of the title of defendants and the extent of theirrespective shares. If the defendants appear, and there are anydisputes between the plaintiff and defendants as to their respectiveshares, the Court has to examine the title of all the partiesinterested before it can decree a partition or sale of the commonproperty. It is obvious from the above that the Judge cannotorder a decree unless he is perfectly satisfied that the parties beforethe Court are entitled to the property alleged by the plaintiff to
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1903. be held by him in common with the defendants. The Court mustMay is. satisfy itself that the plaintiff has made out his title, and unless heL.a.ya'rd^c.J. makes out his title his suit for partition must be dismissed. Ithas been repeatedly held by this Court that the District Judge isnot to regard the partition suit as merely to be decided on issuesraised by and between the parties to the suit, and that the plaintiffmust strictly prove his title, and, only when he has done so to thesatisfaction of the Court, has he established his right to maintainsuch action. The paramount duty is cast by the Ordinance uponthe Judge himself in partition proceedings to ascertain who arethe actual owners of the land sought to be partitioned- As collusionbetween parties to a partition action is always possible, and as insuch a suit the parties get their title from the decree of the Courtawarding them a definite piece of land, and as a decree forpartition under section 9 of the Ordinance is good aud conclusiveagainst all persons whomsoever, whatever their rights may be,whether they are parties to the suit or not, it appears to me thatno loophole should be allowed to a Judge by which he can avoidperforming the duty cast expressly upon him by the Ordinance.
The Ordinance makes no provision by which the Court canthrow that duty on to some third person, and no provision is madein it for any reference to arbitration; consequently in my opinionthe Court has no more power to refer a partition suit to arbitrationthan it has to decide on issues raised by parties to the suit. Themere consent of the parties will not justify the Court referringthe case to arbitration; the Court must itself be satisfied that.the property sought to be partitioned is the property of theparties, and must satisfy itself as to their respective interests in it.It is admitted by counsel who appeared for plaintiff, respondent,that as far as the Partition Ordinance goes there is nothing whichwould justify a reference to arbitration of any proceeding takenunder it. It is, however, suggested that the Legislature in enactingby section 3 of the Arbitration Ordinance, No. 15 of 1866, that all ■matters in dispute between parties which may form the subjectof civil action may be submitted to arbitration, directly authorizedthe Court to refer any proceedings under the Partition Ordinanceto arbitration.
Now, the question to be decided in a partition suit is notmerely matters between parties which may be decided in acivil action; the Court has to decide in every such suit mattersin respect of which the parties need not necessarily be indispute and on which in this particular suit they are not atissue, viz., that the land is held in common by the plaintiff anddefendants, and they solely have title to the land sought to be
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partitioned. The Court has not only to decide the 'matters in 1S08.which the parties are in dispute, but to safeguard the interests of MayjlB.others who are no parties to the suit, who will, be bound by a Layabd, CJ.J.decree for partition made by the Court under the provisions ofthe Ordinance. It appears to me the Legislature, in enacting theOrdinance No. 15 of 1866, did not confer on a Judge power ina partition suittorefer themattersin dispute to arbitration, and
never intendedtodo so orto remove from the Judge the very
important dutycast on himby theOrdinance No. 10 of 1863, to
satisfy himselfbypersonalinquirythat the – plaintiff has made
out a title to the land sought to be partitioned, and that the partiesbefore the Court are those solely entitled to such land.
There further remains the question whether the Civil ProcedureCode in any way affects or modifies the special duty cast upon theJudge by the Partition Ordinance to inquire into the title of theparties in a partition suit. By the proviso to section 4 of thatCode it is enacted that nothing in the Code shall effect or modifyany special rules of procedure which by virtue of any Ordinancein force at the time of its passing may have been prescribed bysuch Ordinance, except it has been expressly repealed or modifiedby the Code. The Code contains nothing expressly repealing ormodifying the procedure laid down by Ordinance No. 10 of 1863to be followed by a Judge before making his interlocutory decreeunder that Ordinance. Consequently the provisions of chapter IVdo not apply to partition actions. Further, these provisions donot refer to the arbitration of matters other than those indifference between the parties, and, as I have pointed out above,the Court in a partition suit has to decide matters other thanthose in dispute between the parties, matters in which the partiesthemselves may have no difference.
For the above reasons I am of opinion that the • original-reference was void, and that the order of the District' Judgedecreeing a partition- in terms of an award made under suchreference was bad, and must be set aside.
Mr. Van Langenberg, for eighth to twelfth defendants, respond-ents, argued that though the Court might not be able to acceptthe award for the purpose of decreeing a partition in its terms,the Court might enter a final decree in terms of such- award’outside the Partition Ordinance. The object of the parties inagreeing to the reference was the mistaken belief that the parti-tion of the premises could be arrived at by a reference to arbitra-tion. Had they all agreed before such reference to convert theaction into one of ordinary procedure, there would be no harmin our entering a decree in terms of the award. The award,
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1903:however, actually settles the cost of the partition, end it is too late
May is. qow to change the whole nature of the action.
I*YABD,C.J. I order, therefore, that the judgment of the District Judge,dated the 13th December last, be set aside, and the reference toarbitration and all proceedings subsequent to such reference bequashed, and remit the case to the District Court to be proceededwith by the District Judge in manner provided by the OrdinanceNo. 10 of 1863. I further award the appellants the cost of thisappeal, as they were obliged to come to Court to obtain reliefagainst the judgment of the District Judge of the 13th Decemberlast; but as the appellants were as much to blame as the respond* ^ents for the original mistake all parties will bear their own costsin respect of the abortive reference to arbitration and of theproceedings in the District Court consequent thereupon.
1 fully agree with what has fallen from the Chief Justice as to.the scope and effect of the Arbitration Ordinance of 1866 and the.Civil Procedure Code. To my mind, once we realize (what has beenrepeatedly laid down by this Court) that a partition suit is not amere proceeding inter partes, to be settled by their consent or bycompromise or by the opinion of the Court on such points as they•choose to submit to it in the shape of issues, but that it is a matterin which in a sense the parties are all engaged in a contest with the•rest of the world and seeking to establish their title to the land,then it becomes clear that a reference to arbitration can have noplace in a proceeding under the Partition Ordinance. In an arbi-' tration the parties choose their own Judge. He looks only to thedetermination of matters which are in difference between them,and does not concern himself with examining points upon whichthey are agreed. In the present case, if the parties on appearinghefore him chose to agree that one A B was the original owner, andthat the one party claimed from him on a conveyance, while theother party denied the execution of the conveyance and claimedthe land by intestate succession to A B, then the arbitrator wouldonly have had to decide whether the conveyance or the inheritancewas to prevail; whereas in a proper investigation under thePartition Ordinance the most important question for the Judgewould be whether A B was the owner at all. Again, the arbitratorwould not be able to bring new parties into the litigation—a powerwhich is particularly necessary in partition proceedings.
T therefore agree in thinking that the reference and all proceed-ings under it should be quashed.
Grenier, A. J.—I agree.
MATHER v. TAMOTHARAM PILLAI