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NAGOOR PITCHE v. PAKEER et al.
D. C., Kandy, 13,455.
Partition case—Defendants not to be found—Ordinance No. 10 of 1863, s. 5—" It shall be lawful "—Application to issue commission for partition—Notice thereof, on whom to be served—Discretion of District Judge.
Under section 5 of the Partition Ordinance, a District Judge havingdecreed partition has no power to refuse to issue a commission forpartition, on the ground that notice of the application should bepersonally served on defendants who are not to be found in the Island.
Where in the absence of the defendants who were reported to be inIndia, notice of the application for a commission to partition had beengiven by the plaintiff to the party in actual possession of the property,who was the lessee of it,—
Held that the appointment of a commissioner to partition the land maybe made without personal service of the application on the defendants.
N this partition suit there were five defendants. The fifthdefendant only appeared and the remaining four were said
to be resident in Tanjore, South India. As their address was notknown, the summons intended for them- was, by order of theDistrict Judge, served on one A. M. Lebbe, who was in actualpossession of the property sought to be partitioned. The title ofthe parties having been proved, it was decreed that the plaintiffand the defendants were each entitled to an undivided one-sixthshare in the houses and grounds in question, and that the sharesof the plaintiff and of the fifth defendant be partitioned.
Thereupon plaintiff applied that a commission be issued to alicensed surveyor to partition the property. The District Judgeordered that notice of the application be given to the other side.Notice was given to the fifth defendant, and as the other defendantscould not be found, notice was served on A. M. Lebbe as before, hebeing the lessee of the property. The fifth defendant did notappear.
April 30 andMay 8.
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1901. The District Judge (Mr. J. H. de Sanun) held as follows: —
Apil 30 and
May 8.“ I have some difficulty about this matter. The Ordinance
'No. 10 of 1863, section 3, provides for service upon the person
in the actual possession of the property if any of the defendantscannot be found. Section 6 provides that the notice which theparties should receive of the day fixed for considering the returnof the commission shall be served in the same way as the originalsummons. Section 5 which provides for the issue of a com-mission is silent as to any notice being given to the other side whenone of the parties applies to issue a commission for partition.
“ Now it seems to me that, although the section does notexpressly provide for the giving of notice, it is clear fromits terms that notice should be given. It enacts as follows: —
“ ’ When a decree of partition has been given, it shall be lawful' for the Court, on the application of any party to the suit, to issue* a commission addressed to such' person or persons as shall be‘ agreed upon by allthe parties to such suitas shall bewillingto
‘ execute the same;or ifthe parties cannotagree uponany such
' person, then to some fit person named by the Court who shall‘ be willing to execute the same.’
“ When I indicated my difficulty to Mr. Beven, who appearsfor the plaintiff, hesaidthe action did notrequire notice tobe
given to the otherside,and that althoughhe issuednoticein
accordance with my order, notice was not really necessary.
“ I do not think so. The defendants are entitled to know whois to execute the commission and to agree or object to thecommission being issued to him. How can they do the one orthe other unless they have notice? As in my opinion the first,second, third, and fourth defendants, who are said to be in India,are entitled to receive notice, and as the Ordinance does hotprovide for the service of it in the same way as the originalsummons, I must fall back" on the Civil Procedure Code andrequire that notice be given as therein provided for service outof the Colony.
“ I shall most likely be told that the plaintiff does not knowwhere the absent defendants are, or may probably be found.That is his misfortune. He should endeavour to ascertain theirwhereabouts. I think that if he will only make some effort hewill be successful.
“ I refuse the motion on the ground that the first, second, third,and fourth defendants have not had notice of it.
Bawa, for appellant.
Cur. adv. mdt.
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8th May, 1901. Mokcreiff, J.—
This was a suit for the partition of certain house property atKandy. A partition decree was obtained on the 6th August. 1900,and thereafter the judge was approached on behalf of the plaintiffwith a view to the appointment of a commissioner under section 5of the Partition Ordinance of 1863. But on the 21st January,1901, the judge refused to appoint the commissioner named bythe plaintiff, and on the 4th February, 1901, he refused a proposalto affix notice on the premises affected by the partition decree.This he did saying, with regard to the former motion, that the noticehad not been served on the second, third, and fourth defendants;and with regard to the latter motion, that there must be someevidence that the second, third, and fourth defendants were outof the Island. It seems that there has been no personal serviceupon these defendants: it is believed that they are in India, andtheir addresses are unknown. According to the affidavit of theperson sent to India in the present instance to point out thesedefendants to the process server, he was unable to find them inTanjore, and although he proceeded to Trichinopoly in search ofthem, he did not find them. Mr. Bawa contends that personalservice is not necessary..
April 30 andMay S.
Now, upon application for sale or partition under section 2 ofthe Partition Ordinance, “ summons shall be served upon thedefendants, or such of them as can be found; or if they cannot be“ found, upon the person or persons in actual possession of suchproperty; or, if there be no person in possession, in such manner“ as the Court shall direct.”
Upon the passing of the decree of partition, “ it shall be lawfulfor the Court ”, under section 5, to appoint a commissioner topartition the property, and the commissioner shall proceed. “ inthe presence of all parties concerned, if they will appear.”
On the receipt of the return to the commission, the Court shalleither confirm or modify and enter final judgment, and of theseproceedings notice shall be issued under section 6 “to all theparties,” and it shall be served in .the same way as the originalsummons.
The learned judge thought that the words “ it shall be lawful,”used in section 5, gave him a discretion to refuse to appoint, andthat there was reason for requiring personal service on all thedefendants, on the motion to appoint a commissioner, which doesnot exist in the proceedings culminating in the partition decreeand at the stage of final judgment.
I do not agree with him. It seetns to me to be wholly unreason-able that personal service should be required on the motion for
April 30 andMay 8.
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the appointment of the commissioner and dispensed with on therelatively more important occasions of final judgment and decreeof partition. 1 cannot think that the Legislature contemplatedsuch a distinction. The judge findB that the plaintiff and the fifthdefendants are entitled each to an undivided sixth, and decreesthat their shares “be partitioned and allotted to them.” Heacknowledges and decrees .the plaintiff’s right, he orders theplaintiff’s share to be allotted to him without personal service onall defendants; but, when he is asked to take the next step, hesays: “ No. i have a discretion. I require personal service onall the defendants.”
Whether there is or is not a discretion, I fail to appreciate thelearned judge’s reason for distinguishing. But is there a dis-cretion? I think not. The words ” it shall be lawful ” imply onlythe conveyance of power and authority, but the context maymake it obligatory on the donee of the authority to exert it. Thejudge in this case has decreed that the plaintiff’s share shall beallotted to him; he has clothed the plaintiff with a legal right.Section 5 has given him a power to effectuate that legal right, andI think he has no power to refuse to do so. That I take to bethe sense of the judgments in Julius v. The Bishop of Oxford(5 App. C. 214).
If there had been words in section 5 indicating that personalservice on all the defendants is required, the power would be sofar qualified. But the only reference in the. section to the subjectis contained in the provision that the commissioner shall proceed“ in, the presence of all parties concerned (if they will appear),”the words which do not, in my opinion, mean that the plaintiff isto hail to the spot defendants whom he has searched for in vainin Tanjore and Trichinopoly.
I think that the judge should be directed to proceed to appointa commissioner for the purpose specified in section 5.
Lawrie, J.—I agree.
NAGOOR PITCHE v. PAKEER et al