ABEYESUNDERE, J.—Simon Singho v. Magie Nona
1967 Present: Abeyesundere, J., and Siva Supramaniam, J.SIMON SENGHO, Appellant, and MAGIE NONA and others,RespondentsS. C. 57JG6—D. G. Panadura, 9728
Partition action—Final decree—Allotment of lot. F to a number of persons—Omissionto specify the share given to each of them—Subsequent partition action in respectof lot F—Power of Court to examine the interlocutory decree entered in the earlieraction.
Whore a final decree entered in a partition action assigns a particular lot(lot F) to a group of persons without specifying the share to which each of thosepersons is entitled, it is open to the Court, in a partition action institutedsubsequently in respect of lot F, to loolc beyond the final decree and examine theinterlocutory decree in the earlier action in order to ascertain the shares in■which those to whom lot F was allotted in that action were to hold that lot.
A. PPEAL from a judgment of the District Court, Panadura.
II. W. Jayeicardeije, Q.C., with L. W. Athulathmudali, for plaintiff-appellant.“
D. Welcome, for 1st to 5th defondants-respondents.
March 7, 1967. Abeyesundere, J.—
This partition action is in respect of the corpus depicted on plan marked
The title of the plaintiff and the 5 defendants depends on the decreeentered in partition action No. 21278 of the District Court of Kalutarain 1940. By the final decree in the last mentioned action the corpus inthe instant case was allotted as lot F to Simon Singho (the plaintiff inthe instant action), Podi Nona (mother of the defendants in the instantaction) and Podi Nona’s 5 children (the defendants in the instant action).In that final decree the shares in which those to whom lot F was allottedwere to hold that lot were not specified. But the interlocutory decreeentered in the earlier partition action states that the plaintiff in the instantaction is entitled to 10/20 shares, the aforesaid Podi Nona is entitled to5/20 shares and her 5 children (the defendants in the instant action) areentitled to 5/20 shares.
The learned District Judge who tried the instant action did not examinethe interlocutory decree in the earlier partition action to ascertain theshares in which those to whom lot F was allotted in that action were tohold that lot. He has stated in the judgment that in view of the decisionof this Court in the case of Leelaratne and another v. Nikulas and others 1it is not open to him to look at the interlocutory decree entered in theearlier partition action to determine the shares in which lot F was to beheld by those to whom it was allotted by the final decree in that action.For that reason he did not adopt the shares allotted to the parties1 (1965) 68 C. L. TF. 111.
miABEYESUNDERE, J.—S^non Singho v. Magie Nona
concerned in the interlocutory decree entered in the earlier partitionaction, and in the interlocutory decree entered in the instant actionassigned to the plaintiff 5/35 shares and to each of the 1st to 5thdefendants 6/35 shares. The plaintiff has appealed from the learnedDistrict Judge’s decree.
In the aforesaid case of Leelaratne and another v. Nikulas and othersthe final decree entered appears to have specified the shares in which the4 persons to whom lot 6 was allotted were to hold that lot. The problemthat arose in that case was whether it was open to the District Judge,having regard to the interlocutory decree, to hold that Pettappu, whowas the person to whom a 1/4 share had been allotted by the final decree,was not the correct person to receive that share and that such share shouldcorrectly have been allotted to the 5th defendant in that case. In the casebefore us there is no need to alter the persons to whom lot F has beenallotted by the final decree in the earlier case. The problem arising inthe instant case is to ascertain the shares in which the persons to whomlot F was allotted were to hold that lot. As the final decree in the earliercase is silent in regard to the shares in which the persons to whom lot Fwas assigned were to hold that lot, it was open to the trial Court to havereferred to the interlocutory decree entered in the earlier case to ascertainthe shares that had been assigned to the persons to whom in the finaldecree lot F was allotted. The judgment in the aforesaid case ofLeelaratne and another v. Nikulas and others does not, in the set of factsoccurring in the instant case, prevent the interlocutory decree from beingread for ascertaining the shares in which those to whom lot F was allottedwere to hold that lot. We are fortified in the view we have expressedin this judgment by the decision of this Court in the case of Carlinahamyv. Juwanis1.
For the aforesaid reasons we vary the judgment and interlocutorydecree of the learned District Judge—
by substituting therein, for the shares of the respective parties set
out therein, the following new shares :—
Plaintiff is entitled to 1 /2 share1st defendant is entitled to 1/10 share2nd defendant is entitled to 1/10 share3rd defendant is entitled- to 1/10 share4th defendant is entitled to 1/10 share5th defendant is entitled to 1/10 share ;
by the deletion of the order that the plaintiff shall pay a sum of
Rs. 31*50 as costs of contest and by the substitution therefor ofthe order that 1st to 5th defendants shall pay the plaintiff asum of Rs. 31*50 as costs of contest.
The appellant is entitled to his costs of the appeal.
Siva Supbamaniam, J.—I agree.
Judgment and decree varied.
1 (1924) 26 N. L. B. 129 at page 134.
SIMON SINGHO, Appellant, and MAGIE NONA and others, Respondents