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Present: De Sampayo J. and Schneider A. J.W1KAWARDANE et al. v. RATNAHLE.44—D. O. Colombo, 53,707.
Vendor and 'purchaser—Warrant and defend—Partition action—Notice byvendee to vendor—Action for damages for failure to warrant anddefend—Defence that vendor cannot intervene in partition action—Object of notice.
The defendant sold a land to the plaintiff. Subsequently thirdparties instituted an action for the partition of a portion of theland. The plaintiff intervened, and gave notice to warrant anddefend to the defendant. The defendant gave evidence for theplaintiff; plaintiff’s claim was rejeoted. Subsequently, plaintiffinstituted this action againBt defendant for damages for failure towarrant and defend title. The defendantresisted the claim on theground that he was not^t-liberty to intervene in the action, as apartition action could be among co-owners only, and that, there-fore, he was not liable under the Roman-Dutch law for eviction.
Retd, that the defence was bad. There was nothing in thePartition Ordinance to prevent the vendor from intervening in thepartition action.
The object of a notice to the vendor is simply to notify that thetide is in dispute. It is left to the vendor either to make himselfa party, or in any other manner assist the proof of the tide conveyedby him.' It is not essential that he should become a party.
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J. 8. Jayawardene, for defendant, appellant.
E. W. Jayawardene, for plaintiff, respondent.
Our. adv. vuU.
October 6y 1920. Da Sampato J.—
This is an action ex evictione for damages against the defendantfor failing to warrant and defend the title to a land which the defend-ant had sold and conveyed to the plaintiff. An action for partitionof the southern portion of the land among certain third parties wassubsequently brought. The plaintiff intervened in that action, andgave notice to the defendant of that action, and called upon him towarrant and defend the title. The defendant did not make.himselfa party to the action, but only gave evidence as a witness for theplaintiff. He failed to establish his title, and the other parties tothe action was declared entitled to the land. The defendant resiststhe plaintiff’s present claim on the ground that he was not at libertyto intervene in the action, as a partition action could be amongco-owners only, and that, therefore, he is not liable under the Homan-Dutch law for eviction. His counsel relies on Murugan v. Murugu-piUai.1 That judgment was my own, and I expressed an opinion,which was not necessary to the decision of the case, that the objectof the notice under the Roman-Dutch law was to enable the vendorto intervene in the action where the vendee’s title was disputedand to take up the cause of the vendee, and that was not possiblein a case where the action in which the dispute arose was a partitionaction. I wish to say that I there appear to have taken too narrowa view of the law. The expression used in Voet 21, 2, 20 is utlitieassisted, which does not necessarily mean that the vendor shouldmake himself a party to the action. The object of his doing so,if he so chooses, is, as explained by Voet, to prevent collusion, andnot to convert the litigation into one against himself. At the sametime, Voet points out other ways of fulfilling the vendor’s-obligation,such as by becoming the purchaser’s procurator in rem suam, or bysupplying the purchaser, whose title is attacked, with assistance andproof for establishing the title (adminicula ac probationer ad jusafferendum suppedidet). In accordance with these principles,Pereira J. observed in Menika v. Adakappa Chetty,2 that it was theduty of the vendor to have himself added as a party to the action“ or otherwise render to the defendants in that case (that is to say,his vendees) all the help that it was in his power to render, anddefend the title of his vendees against the attack made on it by. the plaintiffs/9 and I myself in the later case, Jinadasa v. Duraya,8remarked that the object of the notice was to enable the vendor tointervene in the action and undertake the defence “ or otherwise to
* 1 (1914) S Bal. N. 0. 14.* (1913) 17 L. B. 93.
8 (1918) 20 N, L. B. 168.
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assist in the litigation.” Moreover, there is nothing in the PartitionOrdinance to prevent the vendor from intervening in a partitionaction, and the learned District Judge observes that the practice isto allow him to do so. Silva v. Daniel1 is a case of that kind, theCourt only holding that the vendee was not entitled in the partitionaotion itself to a decree for refund of the purchase money in the eventof the vendor failing to warrant and defend the title. See also SuseAppoo v. Don Adrian de Silva.*
In my opinion, the District Judge’s decision on the issue of lawraised is right, and the appeal should be dismissed/ with costs.
The defendant (appellant) sold a land to the plaintiffs. A portionof that land was subsequently included in a land sought to be parti-tioned by some third parties, who claimed adversely to the plaintiffsand the defendant. The plaintiffs intervened, and gave due noticeto the defendant to warrant and defend their title. The defendantassisted the plaintiffs by giving evidence in the action for partitioninsupport of the title he had conveyed to the plaintiffs. Decree wentagainst the plaintiffs’ claim and they suffered eviction. The defend-ant made no application to be made a party to the partition action.He is sued in this action by the plaintiffs for damages consequenton his failure to warrant and defend title. His defence is that theaction does not lie against him, because the object of the notice isto enable a vendor to intervene in the Action in which the title isdisputed, and the defendant was not entitled to intervene in anaction for partition. The learned District Judge over-ruled thisdefence and gave judgment for the plaintiff.
In my opinion, too, the defence is unsustainable. In practice avendor of any of the parties to an action is allowed to intervene ina partition action for the purpose of warranting and defending thetitle he has conveyed. There is nothing I can see against thepractice. Such intervention cannot create confusion or complexityThe intervenient’s interests are identical with those of the purchaserwho is already a party. His intervention would not, therefore, bringinto the action any new element or interest. On the other hand,it seems to me expedient that such intervention should be allowed.A vendor has the right on receiving notice to make himself a partyto the action, in order, aB Voet 21,2,20 putsit, “ to prevent collusion.”It is desirable, therefore, that no impediment, unless it is absolutelynecessary, should be allowed to stand in the way of his intervening.The practice received sanction in the provision of section 18 of the. Civil Procedure Code, and it has been recognized by this Court since1872. In .this connection I might mention the cases of Silva v.Daniel1 and Suae Appu v. Atapottu Kankanama?
‘ Bam. (1872-1876) 62.» (1883) 6 8. O. O. 213.
* 6 8. C. C. 213.
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1920. But it was argued that the contrary view was taken in 1915 inSoamxDER the case of Murugan v. MurugupiUai.1 That ease was not decidedA j.upon the ground that a vendor had no right to intervene in a parti-
Wtonmr **°nuPfn an entirety different reason. It is no authority
done v. Upon the question involved in this appeal. It is only a obiter dictumRatnaike in that case which refers to the question involved in this appeal.
Moreover, there is no lawful Justification for the assertion that theobject of the notice to a vendor is to enable him to intervene inthe action in which the title is disputed. Voet 21, 2, 20 states thatno action would lie to a person from whom a thing has been eviotedon account of eviction unless he has given timeous notice to his“ autor” that the action has been commenced, and also a copy ofthe plaint. It is noteworthy that the terms of the notice are simplyto convey information without any request as to what the autorshould do. He proceeds to say that the notice is given, not for thepurpose of transferring the suit to him and to his forum, but ratherin order that he may render assistance (ut lite assisted) in the actionand undertake the defence in the forum of the party sued andestablish his title. Headds: ” This notice having been given whetherthe autor takes part in the suit in order to prevent collusion orsuffers that the purchase constitute him procurator in rem suam,whether he does not openly associate himself with the suit, butsupplies the defendant with assistance and proof for the assertionot the right, or whether he does none of these after being cited, butaltogether neglects the suit, the purchaser has recourse against hisautor after eviction, provided the purchaser himself has not failed *to defend it with all his power.” (Berwick's Translation.)
Voet says again (21, 2, 22): “ There are two objects in givingnotice, the one that vendor may be made more certain, and theother that being informed he may do something or undertake thedefence.” (Berwick's Translation.)
Voet also says (21, 2, 25): “ For although the law has imposedthe defence on the vendor in so far as, according to what has beenshown further up, he is bound to assist in the suit (lite assistere) andfurnish the purchaser’s case with proof, it does not however thencefollow that an unjust defence should be carried on.” (Berwick'sTranslation.)
These passages in Voet amply indicate that the object of thenotice is simply to notify that the title is in dispute. It is left tothe vendor either to make himself a party, or in any other mannerassist the proof of the title conveyed by him. It is not essentialhe should become a party.
For these reasons I would dismiss the appeal, with costs.
1 (1914) 3 Bat. N. C. 14.
WIRAWARDANE et al. v. RATNAIKE