( 190 )
November 15and 21.
WLTEWABDENE v. SEETALAHAMY et al.
D. C. Eatnapura, 910.
Partition Ordinance, No. 10 of 1863, s. 17—Meaning of " owner
The word " owner ” in section 17 of- Ordinance No. 10 of 1868 meansan owner who is a party to the legal proceedings instituted undee theOrdinance.
De Silva v. Carlina, 9 S. C. C. 141, questioned.
N the 29tb June. 2899, the plaintiff instituted this actionagainst three defendants for partition, and in his plaint he
allotted to himself thirteen-sixteenths of the land, to the firstdefendant one thirty-second share, to the second defendant onethirty-second share, and to the third defendant the remainingtwo-sixteenth shares. Some time after the filing of the action, i.e.,on the 12th September, 1899, one 0. M. Obeyesekere purchasedone-eighth share of the land from certain persons whom the libel of
( 191 )
partition had not named as entitled to any share, and on the 6thNovember, 1899, petitioned for declaration of his right and forpartition to him of his share. He was made the fifth addeddefendant in the case.
At the trial the District Judge disallowed the claim of the fifthadded defendant, on the ground that the transfer in his favourwas dated later than the institution of the action.
Wendt, appeared for appellant.
Van Langenberg and Sehneider, for plaintiff, respondent.
Walter Pereira, for first added defendant, respondent.
Cur. ado. vult.
21st November, 1900. Bkowne, A.J.—
The District Judge has quoted no precedent for his decision.The current of reported authority then was against his ruling, thedecisions of this Court in I 8. C. C. 24 and 4 ibid. 52 having been,on 9 ibid., p. 141, held to define the operation of section 17 of thePartition Ordinance to be limited to the prevention of partitionproceedings from being defeated or embarrassed by alienationsor encumbrances made pendente lite; and in that decision itselfit was held, “ though not without doubt, ” that the prohibition ofthe section was against alienation by “ owners ” who are partiesto the proceedings. I do not know whether these authoritieswere reconsidered in 7,717, D. C., Colombo, “ Lux ” Rep. 10, whena question was raised whether the prohibition could be givSnonly a limited operation, when the Legislature had declaredthat the act prohibited should not be lawful; and perhaps I maybe permitted to ask whether the act. prohibited, if done after orpending a certain event, could be one whit less unlawful, becauseparties had previously agreed to do what they did then.
The result • of such a ruling as has here been made could beonly that the appellant’s vendor himself (or the appellant con-stituted his attorney for that purpose) should come toward in thispartition action to prefer his claim. This would entail delay andfurther cost, and so the enforcement of the section, to a degreestricter than 9 8. C. 0. 14 construed it necessary, would workthat which the section was intended to obviate. I am notdisposed therefore to change the interpretation then given to thesection, but I would follow it, and set aside the order and remitthe proceedings for fifth added defendant’s claim to be investi-gated. The objection was apparently taken by the Court, and Iwould not give costs.
November 16and 21,
( 102 )
l900‘ Lawbie, J.—
Mottember IS„, .„ „„.,
and 21. The decision of this Court m the case of De Silva v. Gartina,
decided on 13th March, 1891, reported in 9 S. C. C. 141, seems
to me to be on all fours aud to govern the present case.
I am bound to follow that decision until it be overruled by
the Full Court, or until the Legislature re-considers the law as to
partitioning land in Ceylon. If my brother Browne and I had
been agreed that the decision in De Silva v. Oarlina was wrong,
we would have ordered this appeal to be listed for argument before
the Full Court, but as my brother is satisfied with that decision, I
acquiesce, not because I think it a good decision, but it is binding
on me and it must be followed.
•I am unable to approve of it, the words of the 17th section of theOrdinance seem to be very clear. These words were given effectto in Perera v. Perera, 9 S. C. G., p. 105. That case was originallyargued before Burnside, C.J., and myself; it is reported that wedid not agree. The ground of my disagreement was not as to themeaning of the 17th section, but as to whether the deed in thatcase was an alienation. If I remember right, that partition suitwas instituted when one of tbe co-owners was on her death-bed-It was held to be immaterial whether summons had been servedor not, because the action had been instituted upon her death, andthe judge who .decided the case did not share my doubt oropinion as to the notice of the death. The judges were unanimousin holding it was an alienation, and if an alienation that it wasvoid because executed after the institution of legal proceedings.I thought it was a mortis causa deed to distribute an estate after thegrantor’s death. It . seemed to me essentially a testament, thoughit took the form of a deed of gift with reservation of a life rent,and as I thought there was no alienation which the 17th sectiondeclared unlawful. After a co-owner’s death pending a partitionsuit, new parties must be added. T do not see that those whoappear as the devisees under a will can be objected to as fallingunder the 17th section, but that does not touch the questionwhether in the 17th section “ owners ” are limited to plaintiffsor defendants in the partition action. . I cannot understand howsuch a limited meaning can be given to owners, but I am boundby the decision in question, and I on that ground only yield tothe judgment proposed by my brother.
WIJEWARDENE v. SEETALAHAMY et al