404DALTON A.C.J.—Vythiampillai v. Sadanatha.
1933Present: Dalton A.C. J. and Drieberg J.VYTHIAMPILLAI v. SADANATHA.
■ 197—D. C. Jaffna, 16,400.
Partition action—Intervention after interlocutory decree—Burden of proof onintervenient—Discharge of onus.
A party, who has obtained an interlocutory decree in a partition action,is not bound to prove his title afresh against an intervenient who hasfailed to establish his right to intervene.
^ PPEAL from an order of the District Judge of Jaffna.
.V. E. Weerasooria (with him Gnanapragasam and Subramaniam), forseventh, eighth, and ninth added parties, appellants.
H. V. Perera (with him Kandiah), for substituted intervenient,respondent.
Cur. adv. vult.
June 26, 1933. Dalton A.C.J.—
The partition action out of which this appeal arises commenced in theyear 1921. The land the subject of the partition consists of that extentof land subdivided into lots 1 to 6, as set out on plan No. 4,122 of July 1,1922, and on plan No. 4,288 dated February 7, 1923, produced in the case.Although in each plan the extent appears to be the same, the land has notbeen subdivided in the same way. In the course of time and muchhandling, the record of the case, including the journal entries, has becomeso much mutilated that it is difficult to trace with accuracy the differentsteps in the action taken since its commencement. Owing also to thecareless way in which the records have been kept I find it very difficult tofind my way about them. It would appear, however, that the plaintiffallotted an undivided 1 /6th of the land to himself and to the tenth tothirteenth defendants, and the remaining undivided 5/6th to the firstdefendant Vetharaniya Visuvanatha in his capacity as trustee of theAthivaramadam, a charity inn in India, to which institution this sharewas stated to belong. After trial an interlocutory decree was entered inMarch, 1922, decreeing the shares to the parties as set out in the plaint.There has never at any time apparently been any dispute as to theundivided l/6th share allotted to the plaintiff and the tenth to thirteenthdefendants, all' the subsequent disputes relating to the remaining 5/6thshare.
Various additional parties seem to have been added at different times,to whom it is not necessary now to refer, except to the present appellantsand the respondent. In February, 1924, the present appellants inter-vened, and were added as the seventh, eighth, and ninth added parties.They claimed the undivided 5/6th that has been given by the interlocutorydecree to the first defendant as trustee of the Athivaramadam.
On this intervention the trial Judge held in his judgment of November14, 1927, that these intervenients were not entitled to any interest in theland to be partitioned. He held that the 5/6th share claimed by them
DALTON A.CJ.—VythtatnpiUat v. Sadanatha.405
was the property of the Athivaramadam (issue 11), that the trustees ofthe madam had been in possession of thds land since 1872 (issue 13), thatthe first defendant was entitled to that share as trustee (issue 14), andthat the absence of any vesting order in his favour was immaterial to thiscase (issue 13). A commission was therefore ordered to issue for thepartition of the lots 1 to 6 as directed in the interlocutory decree. As Ihave stated, so far as the first defendant was concerned the decree wasin his favour as trustee of the Athivaramadam. I might add here itseems clear from the judgment that, as the case was presented to the trialJudge, the charity inn, the Vetharaniar Athivaramadam as he calls it,was part of the institution, the Vetharaniar temple, one of the richesttemples in Southern India, which he points out had a number of landsscattered over the Jaffna peninsula.
From this decision the intervenients, the seventh, eighth, and ninthadded parties, appealed successfully. The Supreme Court, in its order ofJuly 18, 1928, held that although the first defendant was trustee of theVetharaniar temple in India, to which so far as I can ascertain it wasnever denied up to that time that the madam which was on the tank bundnear the temple was appurtenant, the first defendant as such trustee hadfailed to show any title to the 5/6th share of the land in dispute. Theintervenient appellants on the other hand, it was held after a review ofthe evidence, had shown they had “ for many years past ” been in posses-sion of the land, whereas there was no evidence that the land had everbeen in possession of the temple. It was therefore ordered that theinterlocutory decree entered be varied by declaring the intervenientsentitled to the interest they claimed.
From this decision of the Supreme Court the first defendant commencedproceedings to obtain leave to appeal to the Privy Council, but did notproceed with them.
The next step with which we are concerned is an intervention on July18, 1929, by one Suntharavalliamma claiming that she was trustee of themadam, that the 5/6 share in dispute has been donated to the madamin 1872, and that therefore this undivided 5/6th of the land sought to bepartitioned should be allotted to her as such trustee. Before, however,she could proceed with her claim she died, and the respondent to thisappeal was substituted as intervenient in her place. He claims to be hergrandson, and to be trustee of the madam, under! an appointment by theheirs of Suntharavalliamma. After a hearing pn this intervention atwhich evidence was led on both sides, on July ^5, 1932, the trial Judgeheld that the present respondent had established his right to intervene,and further that the Athivaramadam was entitled to the 5/6th share ofthe land in dispute. From that decision the seventh, eighth, and ninthadded parties, the earlier successful intervenients, now appeal.
The first matter that the present substituted intervenient has toestablish is his right to intervene. The trial Judge and also counsel forthe substituted intervenient in the lower Court have not, it would seem,given this question the attention it requires, for if 'the right to interveneis not established the claim must fail. They have given most of theirtime and attention to the question whether the land in dispute is theproperty of the madam. The learned Judge does indeed in the opening
DALTON A.C.J.—Vythiampillai v. Sadanatha.
words of his judgment say that the intervenient has established his claimas trustee of the Athivaramadam at Vetharaniya by documents tointervene, but it would certainly have been helpful to have the reasonsfor that conclusion as I am unable to find any satisfactory evidence on therecord, documentary or otherwise, to show that the intervenient is trusteeas he claims.
An examination of the evidence, commencing with the substitutedintervenient respondent, shows that he claims to have been appointed bydeed trustee of the madam in 1930 by the heirs of Suntharavalliamma onher death. It would seem that this deed was produced by him when hewas in the witness box, and was marked R2, but it is not now forthcomingnor has it been specifically referred to by the trial Judge in his judgment.What has happened to it- no one can now say. We have not therefore hadthe benefit of seeing what it contains, or who were the individuals whomade the appointment. On the question as to who were the heirs ofSuntharavalliamma, the witness does not say who the heirs were. Hestates that Suntharavalliamma had four daughters and two sons, but headmits that one at any rate of the surviving daughters had not signedthe deed of appointment. Whether the other surviving sons and daughtersor the children of deceased children of Suntharavalliamma joined in hisappointment he does not say. There is no witness but himself as to hisappointment as trustee. Even assuming that the right of succession tothe trust such as is alleged, about which he is silent, is to be effected inthis way, his evidence is to my mind quite inconclusive as to his properappointment.
The next point arising on the evidence is as to Suntharavalliamma’sclaim to be trustee. On this question also, in support of her intervention,the only witness is the present respondent, her grandson, at the time hegave evidence a young man of 25 years of age. He admits he knewnothing about the case before his grandmother’s intervention in 1929.He states, however, she became trustee of the madam on the death of oneSevanthinatha Kurukkal, when she succeeded to the management of themadam and its properties. Sevanthinatha Kurukkal, he states, died aboutforty years ago. He died, he states, leaving four daughters includingSuntharavalliamma. The witness states his grandmother had threesisters and no brothers, but there is no explicit statement that Sevanthi-natha had no other children, as he might possibly have had by anotherwife. There is no clear or definite statement in his evidence as to whowere Sevanthinatha Kurukkal’s heirs. Which was his eldest daughteris not stated. As to Suntharavalliamma being trustee, it is admitted shenever had any deed of appointment. All that the witness can say on thatpoint is “we agreed amongst ourselves to allow Suntharavalliamma tomanage the madam”. He, having regard to his age, could clearly nothave been any party to such an agreement on Sevanthinatha’s death orfor many years afterwards.
There is no evidence, beyond the statement of this young man, that hisgrandmother was ever trustee at all! He states she acted as trustee forabout twenty-five years, that she took the income from the land in disputeand remitted every year to the madam in India. He assumes she must
DALTON A.C.J.—Vythiampillai v. Sadanatha.407
have left accounts, but can produce none nor can he produce any otherevidence to support his statements about her. What she was doingduring the previous proceedings in this case from 1921 to 1929, if she wasin possession of the land, he does not say. The evidence in support ofSuntharavalliamma’s intervention is, in my opinion, worthless, and thereis no other evidence on the record to support her claim.
The only witness, apart from a brief official witness, that respondentcalls to support his intervention, namely, Sittampalam Mudaliyar who livesnear the land, does not mention Suntharavalliamma at all. His evidencewould lead due to conclude that the first defendant was the trustee of thelands in dispute. The first defendant, respondent admits, is a closerelative of his. He does deny, however, that first defendant was thetrustee of the madam, although he admits he was trustee of the Vetharaniyatemple. This latter piece of evidence constitutes, so far as I have beenable to ascertain, the first suggestion (and even here it is not very definitelymade) that the Athivaramadam at Vetharaniya was a separate founda-tion or institution in no way appurtenant to the Vetharaniar Athivaratemple.
Up to this point then the evidence, in my opinion, quite fails to establishthat the substituted intervenient had any valid appointment as trustee,or that he was trustee as he claims. It does not show further, in myopinion, that his grandmother Suntharavalliamma was ever trustee atall, or that she had any right to intervene. There are further defects inthe claim now put forward, if one go back in point of time prior to the deathof Sevanthinatha Kurukkal, for there is, in my opinion, no evidence ofany value that the parties to the deed of 1872 (R1 or P14) relied upon bythe intervenient, under which Sevanthinatha Kurukkal was appointed,were the heirs of Kanthappa Kurukkal as claimed. It is, however,sufficient to say for the purpose of this intervention that neither theintervenient nor the substituted intervenient has disclosed any right tointervene.
In view of this conclusion it is not necessary to consider the effect ofthe judgment obtained by the present appellants against the first defend-ant as trustee, as against the present respondent, or whether, variousunregistered old deeds prior to 1840 were properly admitted in evidence,or other questions raised on the appeal before us.
One further matter must be mentioned. The appellants are the holdersof a decree of the Court declaring them entitled to the land in dispute.It was argued on behalf of respondent that in the event of a subsequentintervention they must be put to the proof of their title afresh as againstthe present respondent and his grandmother. The learned trial Judge,however, rightly held that the respondent had first to establish his rightto intervene. The burden of proof was on him and if he fails in dis-charging that onus, the matter ends. There is no requirement for aparty who has obtained an interlocutory decree to prove his title afreshagainst every successive intervenient (Appuhamy v. Gunaraine') wheresuch intervenients have not discharged the onus that lies uponthem.
1 Wijeicardena’s Reports 60.
POYSER J.—Rodrigo v. Peiris.
For the reasons I have given, the learned Judge was wrong in holdingthat the respondent established his right to intervene as trustee of theAthivaramadam at Vetharaniya. His claim should therefore have beendismissed. The interlocutory decree of July 25, 1932, must therefore beset aside, and the earlier decree in favour of the appellants must be restored.The appeal is allowed with costs in both Courts.
Drieberg J.—I agree.
VYTHIAMPILLAI v. SADANATHA