Sirimalie v. Pinchi Ukku
1958Present: Weerasooriya, J., and Sansoni, J.T. SIRIMALIE et al., Petitioners, and D. T. PINCHI UKKU,
S. C. 51—Application in Revision in D. C. Kandy, 4,380jP
Partition action—Interlocutory decree—Legality challenged—Right of Supreme Courtto exercise remsionary power—Duty of Court to examine the tide and share ofeach party—Civil Procedure Code, s. 753—Partition Act, No. 16 of 1951, s. 25.
The Supreme Court has sufficient powers under the Courts Ordinance and•under section 753 of the Civil Procedure Code to examine, by way of revision,the legality and propriety of the interlocutory decree which has been entered.in a partition action and the regularity of the proceedings at the trial.
The 9th defendant in the present partition action appeared even before sum-mons was served on her and was present in Court on the date of trial. Sheuvas not represented by a lawyer and had not filed a statement. At the trial a.new position was taken up by the plaintiff who had pleaded differently.
Held, that it was the duty of the Court to have asked the 9th defendant-whether she wished to give evidence or to cross-examine the plaintiff whoseevidence was directly against her interests. Section 25 of the Partition Actrequires the Court to examine, and hear and receive evidence of, the title andinterest of each party.
•tXPPEAL from a judgment of the District Court, Kandy.
H. D. Tambiak, for the 8th, 9th and 10th defendants-petitioners.
<0. R. Gunaratne, for the plaintiff-respondent.
Cur. adv. vult.
SANSONI, J.—Sirimalie v. Pinchi Ukku
August 7, 1958. Sanso.ni, J.—
The petitioners, who are the 8th, 9th and 10th defendants, have appliedto revise the interlocutory decree entered in this partition action. They'allege that the plaintiff’s husband has given false evidence at the trial!in order to deprive the petitioners of their share in the land sought to be-partitioned.
According to the pedigree set out in the plaint Tennewattegedera-Dingiriya was the former owner of the land. He died leaving six children ::Rankira, Menika, Kiriya, Subaddara, Appuwa and Howkenda. Ran-kira’s 1/6 share was claimed by the plaintiff upon a series of deeds.Menika, owner of 1 /6 share, died leaving as her sole heir her daughterRankiri, who died leaving as her heirs, according to the plaint, hersix children Rana, Ha tana, Dingiriya (1st defendant), Sirimalie (8thdefendant), Ukku (9th defendant) and Anagi (10th defendant), each ofwhom became entitled therefore to 1 /36 share ; Rana died leaving hisdaughter the plaintiff as his sole heir. The plaintiff thus claimed 1/6plus 1/36 or 7/36 share of the land. It is not necessary to set out the-devolution oi the shares of the other four children of Dingiriya forthe purposes of this judgment.
The 1st, 2nd and 3rd defendants filed a joint answer in which theyadmitted (in paragraph 5) the averment in the plaint that Rankiri died-leaving as her heirs the six children already mentioned, but when theyset out the shares of the parties in paragraph 10 of the answer they didnot concede any shares to the 8th, 9th and 10th defendants. There wasan obvious contradiction, which was left unexplained, between para-graphs 5 and 10 of the answer.
According to the journal entries the 9th defendant appeared in Courton 26th August, 1954, and the 10th defendant appeared on 24th October,.1955, although summons had not been served on them. The 8th defen-dant did not appear at all, although summons had been served on her.The trial was heard on 29th June, 1956, when the parties present were-the plaintiff and 7th and 9th defendants. The only parties representedby lawyers at the trial or at any previous stage were the plaintiff and.the 1st, 2nd and 3rd defendants.
The proceedings at the trial appear to have commenced with a state-ment by the plaintiff’s proctor that there was no dispute as to the shareclaimed by the plaintiff. One would ordinarily understand from thatstatement that 7 /36 share claimed in the plaint was still being claimed bythe plaintiff. There is no mention of any contest regarding the 1 /36 share-allotted in the plaint to each of the 8th, 9th and 10th defendants. Thetrial Judge was not informed that evidence would be led which wouldnot only differ materially from the pleadings filed, but would also deprivethose defendants of any share of the land and increase the share whichthe plaintiff had claimed in the plaint.
The only witness called on behalf of the plaintiff was her husbandwho, in giving evidence, stated that when Rankiri the daughter of Menikadied her share devolved on Kiribaiya, whereas according to the plaint
SANSONI, J.—Sirimalie v. Pinchi Ukku
and the answer of the 1st, 2nd and 3rd defendants Rankin’s sharedevolved on her six children Rana (the plaintiff’s father), Hatana and 1st,8th, 9th and 10th defendants. The witness further stated that thesesix persons were the children of Kiribaiya. There was a furtherdeparture from the pleadings when the witness went on to say that ofthese six children of Kiribaiya the 8th, 9th and 10th defendants went-out in diga and forfeited their rights to inherit any share of this land.'Thus the plaintiff, instead of inheriting 1 /36 share from her father Rana,inherited 2/36 ; the 1st defendant also inherited 2/36 share instead of1/36 ; and the 8th, 9th and 10th defendants got no shares at all.
It does seem strange that both the plaintiff and the 1st defendant hitheir pleadings should have made the same mistake as to who the child orchildren of Rankiri were ; as to whose children Rana, Hatana, 1st, 8th,9th and 10th defendants were ; and as to the rights which the 8th, 9thand 10th defendants had in this land. No marriage certificates to prove■.the alleged diga marriages were produced, nor was any attempt madeto explain how the mistakes came to be made in the pleadings. I haveno doubt that if the learned Judge’s attention had been drawn to thesematters he would have made a more careful investigation than he did.If he had been told, for instance, that the 8th, 9th and 10th defendantshad been brought into court as co-owners but that they were to getnothing in the land in view of later discoveries with regard to theirparentage and diga marriages, he is not likely to have accepted the■ evidence of the plaintiff’s husband without close scrutiny.
But I think the more serious objection to the manner in which thistrial was conducted is the fact that the 9th defendant , who was presentin Court, seems to have been totally ignored. She appeared even beforesummons was served on her. It is true that she filed no statement, but’her presence at the trial surely indicated that she had come to watch herinterests. She does not seem to have been asked whether she acceptedthe new position taken up by parties who had pleaded differently, norwhether she wished to give evidence, or even to cross-examine theplaintiff’s husband whose evidence was directly against her interests.
It seems to me that the trial was of an entirely unsatisfactory natureand the interlocutory decree based on the evidence led at such a trial^should not be allowed to stand. The 8th, 9th and 10th defendants pleadthat they were unaware that the judgment deprived them of their sharesuntil a surveyor partitioned the land. They then took steps to have theinterlocutory decree vacated, and when the matter came up for inquiryin the lower Court the proctor for the 1st, 2nd and 3rd defendants saidthat he had no objection to such a course being taken but the plaintiff’sproctor objected that the Court had no jurisdiction to act in the matter.The judge then dismissed the application on the ground that he had no.'jurisdiction, and the present application was thereupon filed.
The petitioners have filed what they claim are certified copies of thedeath certificate of Rana (the plaintiff’s father), according to which hisparents were Rankiri and Kiri Puncha, and of the birth certificate of the
Premadasa v. Assert
8th defendant, according to which her parents were the same two persons.These documents prima facie support their claim that the evidence ledat the trial is not strictly true.
The final decree has not been entered yet in this case and I have nodoubt that this court has sufficient powers under the Courts Ordinanceand under Section 753 of the Civil Procedure Code to examine the legalityand propriety of the interlocutory decree which has been entered and theregularity of the proceedings at the trial. I am supported in this viewby the recent judgment of Gunasekara, J. (with whom Pulle, J. agreed)in H. W. Amarasuriya Estates Ltd. v. Ratnayake h If the allegationsin the petition and affidavit are true, manifest injustice has been done tothe petitioners. The present situation need not have arisen if the Courthad been fully apprised of the departure from the pleadings as far as the8th, 9th and 10th defendants were concerned, and if the 9th defendantwho was present at the trial had been given a hearing. It should beremembered that section 25 of the Partition Act, No. 16 of 1951, requiresthe Court to “ examine the title of each party and hear and receive evi-dence in support thereof, and try and determine all questions of law andfact arising in regard to the right, share and interst of each party ”. Inthis case the trial judge has failed to perform these duties and it is nottoo late for us to require him to perform them at another trial.
I would therefore set aside the interlocutory decree and remit the casefor a fresh trial upon such points of contest as the parties might raise.The plaintiff must pay the petitioners their costs in the proceedings beforethis court.
Weerasooriya, J.—I agree.
Decree set aside.
T. SIRIMALIE et al., Petitioners, and D. T. PINCHI UKKU, Repondent