( 200 )
SATfflANADEN et al. v. MATTHES PULLE et al.
D. C., Negombo, 2,453.
Partition Ordinance—Its applicability to land subject to fidei commissum—The Entail and Settlement Ordinance, . 876.
Since the Entail and Settlement Ordinance, 1876, a Court ofcompetent jurisdiction may proceed under the Partition Ordinancein respect of land subject to a, fidei commissum.
N this case the plaintiffs sued the defendants for the sale, underthe Partition Ordinance, of a land held by them in common.
The defendants, in addition to questioning the correctness of theshares allotted to them in the plaint, pleaded that the land wasBubject to a fidei commissum, and could not therefore be soldunder the Partition Ordinance. On the trial date, after hearingarguments of counsel, the District Judge held as follows:—“ In“ my opinion the Court cannot order a sale unless the procedure“ prescribed by Ordinance No. 11 of 1876 is adopted, and a petition“ is presented under section 5 of that Ordinance. This has not“ been done, and the land cannot at present be sold. The Court“ is of opinion, therefore, that the plaintiff cannot bring a suit“ under the Partition Ordinance. The suit is therefore dismissed“ with costs.”
The plaintiffs appealed.
Sampayo, for appellants.
Domhorst, for respondents.
3rd November, 1897. Lawbie, A.C.J.—
In 1877 it was decided by this Court (affirming a judgment ofBerwick, D.J.) that property which was subject to a fidei com-. .missum could not be sold or partitioned under the Ordinance of1863 (Ram. 1877, 304).
That action was brought before 15th June, 1877, when theOrdinance No. 11 of 1876 came into operation.
Since then, by the 4th section of the later Ordinance, it is lawfulfor the District Court of the district in which property heldsubject to entail, fidei commissum, and settlement, is situate toauthorize a lease, exchange, or sale of the whole or any part orparts of such property, if it deems it proper and consistent with dueregard tor the interests of all parties entitled under such entail.
This removes the difficulty felt by the Court in the case referredto, and I see no difficulty in proceeding under the PartitionOrdinance.
I would set aside and remit the case for further investigation.
( 201 )
I agree. Plaintiff d Jes not admit that any valid fidei commissum
was either ever created, or, if created, still subsists. He could nottherefore be expected to petition under the Entail and SettlementOrdinance; but if the Court were to hold that a restriction onalienation did presently exist, I see no reason why it should notact under that Ordinance (whose provisions in section 6 are so akinin their object to the requirements of No. 10 of 1863, section 4, asto the ascertainment of all parties possibly interested) even with-out any formal petition being filed supplemental to the plaint.
In view of the antiquity of the alleged creation of the fideicommissum, I would suggest it may be a question whether itsrestrictions have not now expired.
SATHIANADEN et al. v. MATTHES PULLE et al