Somawathie v. Madawela and Others
MADAWELA AND OTHERS
SHARVANANDA. J.. WANASUNDERA. J..
WIMALARATNE, J.. RATWATTE. J. ANDSOZA. J.
S.C. NO. 24/82. S.C. NO. LA/23/82
A. APPLICATION NO. 399/77
C. KURUNEGALA NO. 3903/PFEBRUARY 28 AND MARCH 01.1983.
Partition — Finality of interlocutory and final decrees — Revision — When candeed purporting to convey a divided block be treated as conveying undividedinterest ?
Declaration — Section 12(1) and 48 of Partition Act — Interpretation —Expressio unius exclusio alter/us — Intervention after interlocutory decree.
When the boundaries of a purportedly divided block in a deed are insufficient foran exact and precise demarcation the deed conveys only undivided interests.
When there is no proper compliance with Section 12(1) of the Partition Law inthe matter of the declaration stipulated to be filed under that section and nonotice has been served on the claimants before the Surveyor as required bysection 22(1 )(a) of the Act then the Appeal Court can intervene by way ofrevision, to prevent a miscarriage of justice.
Although section 48 invests interlocutory and final decrees entered under thePartition Act with finality the revisionary powers of the Appeal Court are leftunaffected. The position is the same under the Partition Law.
The powers of revision and restitutio in integrum of the Appeal Court havesurvived all the legislation that has been enacted up to date.
When the language used in a statute has been interpreted by the Courts and thelegislature repeats the same or similar language it may be presumed (though nota canon of construction in the absence of indications to the contrary) that thelegislature uses such language in the meaning the courts have given. The maximexpressio unius exclusio alterius is not a maxim of universal application andmust be applied with caution. The exclusio is often the result of inadvertence oraccident and must not be applied where having regard to the subject matter itwould lead to inconsistency or accident. The words expressed could beillustrative only or used out of abundant caution.
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The District Judge has no power to allow intervention after entry of interlocutorydecree.
Cases referred to:
Ponna v. Muthuwa (1949) 52 NLR 59
Dias v. Dias (1959) 61 NLR 116
Ukku v. Sidoris (1957) 59 NLR 90
Mariam Beebee v. SeyedMohamed (1965) 68 NLR 36
Amarasuriya Estates Ltd vRatnayake (1956) 59 NLR 476
Sirimalie v. Pinchi Ukku (1958) 60 NLR 448
Siriwardene v. Janasumana (1958) 59 NLR 400
Seelawathie v. Weeraman (1966) 68 & NLR 313
Leisahamy v. Davith Singho (1970) 79 CLW 109
Isohamy v. Haramanis (1963) 66 NLR 57
Siriya v. Amalee (1957) 60 NLR 269
Gunasinghe v. Aron Appuhamy (1970) 79 CLW 110
Ex parte Campbell In re Catheart (1870) LR 5 Ch. App. 703.706
Perera v. Jayewardena (1947) 49 NLR 1
1 5. Barlow v. Teal (1885) 15 QBD 403. 404, 405
Greave v. Tofield (1880) 14 ChD 563. 571
Webb v. Outrim [ 1907] AC 81.89
Colquhoun v. Brooks (1888) 21 QBD 52. 65
Maurice & Co. Ltd. v. Minister of Labour [ 1968] IWLR 1337. 1345.
MohamedalyAdamjee v. Hadad Sadeen (1956) 58 NLR 217
Nono Hami v. De Silva (1891J9SCC 198
Jayawardena v. Weerasekera (1917) 4 CWR 406
Somawathie v. Madawela and Others (Soza.. J.)
APPEAL from judgment of the Court of Appeal
J. W. Subasinghe. Senior Attomey-at law with S.Mahenthiran & Miss £ M. S.Edirisinghe for plaintiff-appellant.
H. L. de Silva. Senior Attorney-at-law with Fritz Kodagoda for 7(a) to 7(c)substituted defendant-respondents.
Cur. adv. vult
June 29. 1983SOZAJ.
This appeal raises an important question regarding the finalityof interlocutory and final decrees entered in partition cases andthe powers of revision exercisable by the Court of Appeal.
By way of essential narrative we can begin with one EnsinaPerera who by right of purchase on deed No. 2124 of22.12.1942 (P1) became owner of the entire land sought to bepartitioned which comprises several allotments of landamalgamated and consolidated as oneland called
Veralugahapitiya. Puwakgahakotuwekumbura& Pillowa.
Puwakgahakotuwehena now garden. Beralugodehena aliasDemtagollehena. Puwakgahakotuwe Kahatagahamulahena anddepicted as Lots 1 to 10 of a total extent of 18 acres 3 roods 05perches in plan No. 2646 of 14.12.1942 made by G. A. de SilvaLicensed Surveyor marked P2 in the case. Ensina Perera by deedNo. 2828 of 22.7.1943 (7D1) conveyed "all that divided anddefined allotment of land in extent three acres from and out of allthose lots marked 10 and 9 in plan No. 2646 dated 14thDecember 1942 made by G. V. de Silva, Licensed Surveyor ofthe land called Puwakgahakotuwe Kahatagahamulahena" which,I might add, was the name Lots TO and 9 bore before theamalgamation and. consolidation — see the legend describingthe several lots by their names on the face of plan No. 2646 (P2).The boundaries given for the three acre extent were as follows :
North : remaining portion of lot No. 9;
East: land of Mr. Madawela R. M. and Handugala Villageboundary;
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South: garden of Bandirala Vidane and KapuruhamyAratchi;
West: Land of Kapuruhamy Aratchi and others.
Lot 10 is an extent of 2 acres 3 roods 22 perches and lot 9 is anextent of 2 roods 1 2 perches. Therefore an extent of 18 percheshad to be carved out from lot 9 so as to make up the three acresconveyed on the deed No. 2828. As no plan or fence has beenreferred to the northern boundary can be positioned in severaldifferent ways and the resultant 18-perch block can be in theshape of a trapezium or quadrilateral with no parallel sides. Inthese circumstances the extent conveyed by deed No. 2828must be regarded as undivided and undefined despite theasseverations of the grantor to the contrary. If authority is neededfor this view it will be found in the case of Ponna v. Muthuwa.;.In this case two deeds had been executed, one for the southern 2/3share of a land where the northern boundary was given as "the rockand the lolu tree forming the boundary of the remaining 1/3 shareof the land" and the other for the northern 1/3 share of the landwhere the southern boundary was given as "the rock on the limit ofthe remaining 2/3 share of this land and lolu tree". Gratiaen J. whodecided this case enunciated the test that should be adopted asfollows at page 61 :
"Where the words of description contained in the grant are
sufficiently-clear with reference to extent, locality and otherrelevant matters to permit of an exact demarcation of all theboundaries of what has been conveyed, then the grant is of adefined allotment. If however, the language is insufficient topermit of such a demarcation, the grant must be interpreted asconveying only an undivided share in the larger land".
Gratiaen J. held that the deeds failed the test of precision as thecommon boundary separating the northern and southern portionscould not be precisely located. Se also Dias v. Dias2.
Somawathie v. Madawela and Others (Soza. J.)
Hence if one looks at R. B. Madawela's deed No. 2828 and nomore, one would see that the extent of 3 acres conveyed by it isin truth undivided. Accordingly the plaintiff quite rightly broughther action to partition the entirety of the corpus depicted in planNo. 2646 but her failure to make R. S. Madawela a party andshow him an undivided 3 acres was a serious lapse. When theCommission was first issued to the surveyor plan No. 2646 wasnot furnished to him. The surveyor surveyed the land accordingto the boundaries pointed out to him by the plaintiffs husband inthe presence of the 1st defendant who represented himself andthe 2nd. 3rd, and 4th defendants, and prepared his plan No.3312 dated 4.11.69. In his return to the Commission thesurveyor drew attention to the fact that he had not beenfurnished with a copy of plan No. 2646 referred to in theschedule to the plaint. The corpus depicted in plan No. 3312was in extent 1 5 acres and 24 perches and one of its southernboundaries was significantly described as the barbed wire andlive fence separating the coconut garden of R. B. Madawela.Thereafter on 10.3.1970 the plaintiff's attorney-at-law tenderedplan No. 2646 and moved for the reissue of the Commission sothat the corpus could be resurveyed in accordance with this plan.In execution of the second Commission the surveyor preparedplan No. 3392 of 17.8.1970 adding to the corpus alreadysurveyed lots 3 and 4. Lot 3 was in the possession of the 1stdefendant while lot 4 was in the possession of R. B. Madawelaaccording to the surveyor's report. Yet no notice was taken of theclaim of R. B. Madawela and he was lost sight of. The trial washeld on 5.5.1972 and interlocutory decree was entered on thesame day. When the surveyor went to the land to partition it inaccordance with the interlocutory decree, R. B. Madawela foundlot 4 which was possessed by him and which had been excludedat the first survey, being treated as part of the corpus to bepartitioned. On the very day on which the final plan of partitionwas filed of record, namely, 6.1 1.1972, R. B. Madawela's proxywas filed by his attorney-at-law and an application for permissionto intervene in the action was made on his behalf. Although thejudge did not order him to be added. Madawela's name wasentered on the caption of the case as the 7th defendant underdate 6.1 1.1972. While Madawela's application was still pendinghe died and on 11.11.1976 and his heirs were added as 6(a). 6(b)
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and 6(c) defendants. The numbering was corrected during theproceedings of March 23. 1977 and these heirs were, by orderof Court, made the 7(a), 7(b) and 7(c) defendants in the case. Inthese circumstances they must be now treated as duly addeddefendants in the case. On the same day, that is. 23.3.1 977 theCourt made order dismissing the application for intervention andentered final decree. The 7(a), 7(b) and 7(c) defendants filed anapplication by way of revision in the Court of Appeal seeking tohave the interlocutory and final decrees entered in the case setaside and lot 4 in plan No. 3392 excluded from the corpussought to be partitioned. The Court of Appeal by its judgment of
set aside the interlocutory decree and all the orders madethereafter and the final decree. Madawela's heirs were directedto be added as parties and given an opportunity to file theirstatement of claim. The other parties were to be entitled to filefurther pleadings and trial was to be held de novo on thepleadings and on the basis of plan No. 2646 of 14.12.1942. Theplaintiff has appealed to this Court from this judgment of theCourt of Appeal.
The plaintiff-appellant's contention is that the decrees underchallenge are. under the legal provisions applicable, final andconclusive for all purposes notwithstanding any omission ordefect of procedure and even if all persons concerned are notparties to. the action. The 7(a). 7(b) and 7(c) defendant-respondents attack the proceedings which led up to the enteringof the interlocutory and final decrees on two main grounds:
There was no proper compliance with section 12(1) of thePartition Act No. 1 6 of 1951 which was operative at the time thiscase was filed. Under this provision it was imperative that aproctor should file a declaration under his hand certifying that allsuch entries in the Register maintained under the Registration ofDocuments Ordinance as relate to the land constituting thesubject-matter of the action have been personally inspected byhim after the registration of the action as a Us pendens, andgiving the names and. where such is registered, the addresses ofevery person found upon such inspection to be a necessary partyto the action under section 5 of the Act. If in fact the Proctor whogave the declaration had personally inspected the registration
Somawaihie v. Madawela and Others (Soza. J.)
entries he could not have missed Deed No. 2828 of 22.7.1943in favour of R. B. Madawela executed by Encina Perera. Thedeclaration dated 18.8.1969 filed in this case did not discloseMadawela's name.
•2. In the Surveyor's report attached to plan No. 3392depicting the corpus sought to be partitioned the name of R. B.Madawela is disclosed as being the person in possession of lot 4but no notice was issued on him as required by section 22(1) (a)of the Partition Act.
In view of the conclusive and final effect attaching to partitiondecrees, can the Court of Appeal interfere by way of revision?
The concept of finality and conclusiveness of partition decreesembodied in our statutes owes its inspiration.to English law andnot to Roman-Dutcli law – see Voet 10.2.24. An old Englishstatute of 1697 (8 & 9 Will .3 c.31) provided that when finaljudgment was entered it "shall be good, and conclude all
persons whatsoeverwhatever right or title they have and
may at any time claimalthough all persons concerned are
not named in any of the proceedings nor the title …. truly setforth." A similar provision was included in section 1 2 of our localOrdinance No. 21 of 1844 but its applicability was restricted todecrees f<pr partition only and not to decrees for sale. When thePartition Ordinance No. 10 of 1863 came to be passed provisionwas made in its section 9 to give conclusive effect to decreeswhether for partition or sale. Section 9 reads as follows:
'The decree for partition or sale given as hereinbeforeprovided shall be good and conclusive against all personswhomsoever, whatever right or title they have or claim to have inthe said property, although all persons concerned are not namedin any of the said proceedings, nor the title of the owners nor ofany of them truly set forth, and shall be good and sufficientevidence of such partition and sale and of the titles of the partiesto such shares or interests as have been thereby awarded inseveralty:
Provided that nothing herein contained shall affect the right ofany party prejudiced by such partition or sale to recover
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damages from the parties by whose act, whether of commissionor omission, such damages had accrued.”
The words "as hereinbefore provided” however enabled theappellate courts to interfere whenever such steps as wereimperative under the ordinance or essential to the investigationof title or obligatory under the rules of natural justice had notbeen taken.
In the course of time it became apparent that the object of thelegislature to invest decrees under the Partition Ordinance withfinality was not being achieved. Hence when the Partition ActNo. 16 of 1951 came to be enacted special attention was givento the need to ensure finality for decrees of partition and saleentered under the Act. This Act by section 48 provided that theinterlocutory and final decrees entered in terms of its provisionsshall “be good and sufficient evidence of the title of any personas to any right, share or interest awarded therein to him and befinal and conclusive for all purposes against all personswhomsoever, whatever right, title or interest they have, or claimto have, to or in the land to which such decrees relate andnotwithstanding any omission or defect of procedure or in theproof of title adduced before the court or the fact that all personsconcerned are not parties to the partition action; and the right,share or interest awarded by any such decree shall be free fromall encumbrances whatsoever other than those specified in thatdecree." The expression "encumbrance" as used here wasdefined to mean "any mortgage, lease, usufruct, servitude, fideicommissum, life interest, trust or any interest whatsoeverhowsoever arising except a constructive or charitable trust, alease at will or for a period exceeding one month, and the rightsof a proprietor of a nindagama." The provisions of section 44 ofthe Evidence Ordinance were made inapplicable to decreesunder the Act. Hence no attack was possible on the ground offraud or collusion or lack of competency of the court. But thestatute itself provided that the decrees were not final andconclusive against a person who was not a party to the actionand did not claim his right, title or interest directly or remotelyunder the decree if he proves that the decree had not been
Somawathie v. Madawela and Others (Soza. J.)
entered by a court of competent jurisdiction or that the actionhad not been duly registered as a Hs pendens. So some roomwas left for collateral attack.
But although the Act stipulated that decrees under the PartitionAct are final and conclusive even where all persons concernedwere not parties to the action or there was any omission ordefect of procedure or in the proof of title, the Supreme Courtcontinued in the exercise of its powers of revision and restitutionin integrum to set aside partition decrees when it found that theproceedings were tainted by what has been called fundamentalvice. In the case of Ukku v. Sidoris3 T.S. Fernando J. (as he thenwas) declared as follows at page 93.
"While that section (i.e. section 48 of the Partition Act) enactsthat an interlocutory decree entered shall, subject to thedecision of any appeal which may be preferred therefrom, befinal and conclusive for all purposes against all personswhomsoever, I am of opinion that it does not affect theextraordinary jurisdiction of this Court exercised by way ofrevision or restitutio-in-integrum where circumstances inwhich such extraordinary jurisdiction has been exercised in thepast are shown to exist."
The jurisdiction of the Supreme Court to exercise its powers ofrevision and restitutio in integrum despite the new legislation wasrepeatedly affirmed in a number of cases, e.g. Mariam Beebee v.Seyed Mohamerf. Amarasuriya Estates Ltd. v. Ratnayake5. andSirimalie v. Pinchi Ukku6.
The pattern of interference by the Supreme Court followed thetraditional lines: failure to effect due service of summons which is avitiating factor more fundamental than an omission or defect ofprocedure – Siriwardene v. Janasumana7; service of a notice insteadof summons – Leelawathie v. Weeraman8; incapacity of a party and
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failure to have a guardian-ad-litem appointed – Ukku v. Sidoris(supra); settlement prejudicial to minors and failure of the judgeto comply with the provisions of section 500 of the CivilProcedure Code – Leisahamy v. Davith Singho9; differencebetween land sought to be partitioned as described in the plaint andland depicted in preliminary plan – Amarasuriya Estates Ltd. v.Ratnayake (supra); party dead at the time of the entry of the decreeand no substitution effected – Isohamy v. Haramanis10. MariamBeebee v. SeyedMohamed (supra); inability to attend trial for causesbeyond control resulting in the judge not observing the audi alterampartem rule of natural justice – Siriya v. Amalee" no properexamination of title – Gunasinghe v Aron Appuhamy 12. It is notnecessary to multiply instances further. It- became clear that section48 had still failed to achieve the desired finality and conclusivenessfor decrees under the Partition Act. The death of a party, forinstance, who was during his lifetime neither interested in nor inenjoyment of any interests in the corpus sought to be partitionednor indeed entitled to any rights was often exploited by designingpersons who were only bent on prolonging the case for their ownends. Failure to serve summons, incapacity of parties owing tominority or unsoundness of mind and omission to effect substitutionon the death of a party were most frequently the grounds on whichthe stability of decrees under the Partition Act was beingundermined.
The Law Commission made recommendations aimed ateliminating the existing avenues of attack on partition decrees. TheCommission felt that depriving the original court of the power togrant relief in cases where decrees were bad for want of jurisdictionor where the proceedings were null and void would result in nohardship as the extraordinary powers of revision and restitutio inintegrum vested in the Supreme Court were left intact. Theamendments to section 48 suggested by the Law Commission wereincorporated into section 651 of the Administration of Justice(Amendment) Law. No. 25 of 1975 which replaced, inter alia, the
Somawathie v Madawela and Others (Soza. J.j
Partition Act. One of the main changes was the wide-rangingdefinition given to the expression "omission or defect ofprocedure". The expression was henceforth to include anomission or failure –
to serve summons on any party,
to substitute the heirs or legal representative of a partywho dies pending the action or to appoint a person torepresent the estate of the deceased party,
to appoint a guardian ad litem over a party who rs aminor or a person of unsound mind.
But if in consequence of the omission or failure to servesummons on a party or to effect substitution in the case of adead party or to appoint a guardian ad I item over a party who is aminor or of unsound mind, such party’s right, title or interest inthe subject-matter of the action is extinguished or otherwiseprejudiced, and he had no notice whatsoever of the partitionaction prior to the date of the interlocutory decree, an applicationcould be made in the manner and in accordance with theprocedure prescribed in the section no later than 30 days afterthe date of the return of the surveyor to the Commission topartition the land or of the return of the person responsible forthe sale, as the case may be. for special leave to establish suchright, title or interest notwithstanding the entry of theinterlocutory decree. The relief granted will be limited to theright, title or interest of the successful party and to that extent theinterlocutory decree can be amended or modified, and where aclaim has been established to the whole land, even set aside andthe action dismissed. I might add that when the Partition Law No.21 of 1977 replaced the provisions in the Administration ofJustice Law relating to partition actions, similar provisions wereincluded in the new Law. The new Partition Law No. 21 of 1977however extended the availability of this relief to a fourth class ofpersons – parties to the action who had duly filed theirstatements of claim and registered their addresses but failed toappear at the trial owing to accident, misfortune or otherunavoidable cause.
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It should be observed that in these provisions for relief foundin the Administration of Justice (Amendment) law No. 25 of1975 and later in the Partition Law No. 21 of 1977. "personsconcerned" who had not been made parties despite the fact thatthey had a right, title or interest in the subject-matter, are notincluded. Yet such "persons concerned" who have been thevictims of a miscarriage of justice can always invoke the powersof revision and restitutio in integrum vested in the Court ofAppeal. In the case of Mariam Beebee v. Seyed Mohamed (supra)Sansoni C.J. delivering the majority decision of the DivisionalBench that heard this case said as follows at page 38:
"The power of revision is an extraordinary power which isquite independent of and distinct from the appellatejurisdiction of this Court. Its object is the due administrationof justice and the correction of errors, sometimescommitted by the Court itself, in order to avoid miscarriagesof justice. It is exercised in some cases by a Judge of hisown motion, when an aggrieved person who may not be aparty to the action brings to his notice the fact that, unlessthe power is exercised, injustice will result. The Partition Acthas not, I conceive, made any changes in this respect, andthe power can still be exercised in respect of any order ordecree of a lower Court."
Even the Law Commission whose recommendations of 11 thSeptember, 1971 to the Minister of Justice were incorporated inthe Administration of Justice (Amendment) Law No. 25 of 1975felt that any hardship that may be caused by making partitiondecrees inviolate could always be relieved in fit cases by theexercise of the extraordinary powers of revision and restitutio inintegrum vested in the Supreme Court. There is no doubt that thedictum of Sansoni C.J. which I have just cited was still applicableafter the passage of the Administration of Justice (Amendment)Law in 1975. The powers of revision and restitutio in integrum ofthe Supreme Court were left intact. I might add that theyremained unaffected even after the enactment of the PartitionLaw No. 21 of 1977.
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Further it must be observed that after the Divisional Bench ofthe Supreme Court had held in the case of Mariam Beebee v.Seyed Mohamed (supra) that section 48(1) of the Partition ActNo. 16 of 1951 (Cap 69) did not preclude the Supreme Courtfrom exercising its powers of revision in appropriate cases inrespect of interlocutory and final decrees entered under the Act.the then National State Assembly enacted section 651 (1) of theAdministration of Justice (Amendment) Law No. 25 of 1975following closely the language of the old section 48(1) andelaborating only on the meaning of "omission or defect ofprocedure". Section 651(1) was later superseded by section48(1) of the Partition Law No. 21 of 1977 again retaining almostthe identical language. It is well recognised that where caseshave been decided in Courts on particular forms of language in astatute and in later statutes on the same subject and passed withthe same purpose and the same object. Parliament uses thesame forms of language which have earlier received judicialconstruction, it must be presumed, in the absence of anyindication to the contrary, that Parliament intended the forms oflanguage used by it in the later statutes to be construed in thesame manner as before. This is. of course, not a canon ofconstruction of absolute obligation but a presumption that theLegislature intended the language used by it in the later statuteshould be given the meaning already attributed to it by thecourts. As Sir W. M. James L. J. said in the case of Ex parteCampbell. In re Cat heart'3:
"Where once certain words in an Act of Parliament havereceived a judicial construction in one of the Superior Courts,and the Legislature has repeated them without any alteration ina subsequent statue. I conceive that the Legislature must betaken to have used them according to the meaning which aCourt of competent jurisdiction has given to them".
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Soertsz S.P.J. cited this passage as authority for a like propo-sition which he stated as follows in the Divisional Bench caseof Perera v. Jayewardene'4 :
"it is a well established principle that when a word has
received a judicial interpretation and the same word is re-enacted. it must be deemed to have been re-enacted inthe meaning given to it''.
The principle is an aid to construction and has been appliedin a number of cases, e.g. Bartow v. Tea/15-, Greaves v.Tefietd^&, and Webb v. Outrim17. See also Maxwell on TheInterpretation of Statutes 12th edition (1969) pp. 71,72:Craies on Statute Law 7th edition (1 971) p. 141 : Bindra onThe Interpretation of Statutes 6th edition (1975) pp. 257,258.
Accordingly the use by the Legislature in successiveenactments of a form of words substantially similar to the formof words in section 48( 1) of the repealed Partition Act No. 1 6of 1951, supports the assumption that the Legislatureintended to leave unaffected the powers of revision andrestitutio in integrum vested now in the Court of Appeal inconformity with the construction adopted by Sansoni C.J. inMariam Beebee v. Seyed Mohamed (supra).
While on the subject of interpretation, I would like to refer toone further matter. A point was made of the fact that in thenew Partition Law No. 21 of 1977 a special reservation of thepowers of the Supreme Court by way of revision and restitutioin integrum has been included in subsection 3 of section 48 afterinsulating partition decrees from attack on grounds of fraud andcollusion. It was submitted that the maxim expressio unius estexclusio alterius applies. The maxim is that the express
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mention of one thing implies the exclusion of another. But it isnot of universal application and great caution must be exercisedin applying it. As Lopes. L. J., said in the case of Colquhoun v.Brooks18
"It is often a valuable servant, but a dangerous master tofollow in the construction of statutes or documents. Theexclusio is often the result of inadvertence or accident, andthe maxim ought not to be applied when its application,having regard to the subject-matter to which it is to beapplied, leads to inconsistency or injustice."
Where the words expressed are intended to be illustrative only,the rule is inappropriate (Maurice & Co. Ltd. v. Minister ofLabour19). Nor should the maxim be applied where what isexpressed has been put in by way of abundant caution (Bindra(supra) p. 137).
The saving of powers of revision and restitutio in integrum wasprobably put into subsection 3 of section 48 of the Partition LawNo. 21 of 1977 out of abundance of caution because of thedecision of the Privy Council in the case of MohamedalyAdamjee v. Hadad Sadeen20. In this case the Privy Councilfollowing the decisions of Burnside C. J. in Nono Hami v. DeSilva21 and Sir Alexander Wood Renton in Jayawardene v.Weerasekera22. held that a partition decree is conclusive againstall persons whomsoever, and that a person owning an interest inthe land partitioned whose title, even by fraudulent collusionbetween the parties, had been concealed from the Court in thepartition proceedings, is not entitled on that ground to have thedecree set aside, his only remedy being an action for damages.Lord Cohen who delivered the judgment of the Board went on tosay that although the law abhors fraud and equity has anundoubted jurisdiction to relieve against every species of fraud,still to say that fraud vitiates everything obtained by it is toobroad a proposition. When adequate relief can be had at law andwhen in fact there is a full, perfect and complete remedyotherwise, it is not the course to interfere.
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Whatever the reason for the saving of the powers of revisionand restitutio in integrum in section 48(3) of the Partition LawNo. 21 of 1977, to say that these powers will not be availableoutside the area of fraud and collusion would be to leave victimsof miscarriages of justice where there is no fraud and collusionwithout remedy. The expressio unius rule should not be appliedwhere to do so would produce a wholly irrational situation andgross injustice. Further there is nothing to support an inferenceof legislative intent on the basis of the maxim expressio uniusexclusio alterius. The omission to reserve specially the powers ofrevision and restitutio in integrum of the Supreme Court insection 48(1) of the Partition Law No. 21 of 1977 does notsupport the conclusion that these powers that were already therehave been impliedly taken away. Nothing less than an expressremoval of these powers would be required to achieve such aresult.
The pronouncement of Sansoni C.J. in regard to therevisionary powers of the Court in Mariam Beebee v. SeyedMohamed (supra) therefore remains applicable even after theenactment of the Administration of Justice (Amendment) LawNo. 25 of 1975 and the Partition Law No. 21 of 1977. Thepowers of revision and restitutio in integrum have survived all thelegislation that has been enacted up to date. These areextraordinary powers and will be exercised only in a fit case toavert a miscarriage of justice. The immunity given to partitiondecrees from being assailed on the grounds of omissions anddefects of procedure as now broadly defined, and of the failureto make "persons concerned" parties to the action should not beinterpreted as a licence to flout the provisions of the PartitionLaw. The Court will not hesitate to use its revisionary powers togive relief where a miscarriage of justice has occurred.
In the instant case R. B. Madawela the original intervenient wasa "person concerned". He was a necessary party. The deed in hisfavour would have come to the plaintiff's notice when the LandRegistry was searched before her purchase from some of EnsinaPerera's heirs. She would have come to know of it had shecaused a search to be made, as any prudent plaintiff should havedone, before she filed the present case. But be that as it may. Thedeclaration under section 12(1) of the Partition Act No. 16 of1951 which was the law in operation at the time this case wasfiled, was a legal imperative. Section 12(1) stipulates that after
Somawathie v. Madawela and Others (Soza. J.)
the partition action is registered as a Us pendens the plaintiffmust file or cause to be filed in the case a declaration under thehand of a proctor certifying that he personally inspected all theregistration entries relating to the land which is the subject-matter of the action and stating the names of all the personsfound by him to be necessary parties to the action under section5 of the Act. Where the address of any such party is registered,this too should be mentioned. The purpose of this declaration isto satisfy the conscience of the Court that all persons who areseen upon an inspection of the entries in the Land Registry to bepersons entitled to a right, share or interest in the land sought tobe partitioned are before it. In fact it is only after the declarationis filed that the Court issues summons. It is the declaration thatgives the green light for the case to proceed. Inexplicably thedeclaration which the Proctor filed in the instant case failed tocarry the name of R. B. Madawela although the deed in hisfavour by Ensina Perera is duly registered — see the extract ofregistration entries marked X3. This glaring blemish taints theentire proceedings. It amounts to what has been called'fundamental vice'. It transcends the bounds of procedural error.The plaintiff's husband who represented her at the surveyevidently informed the surveyor at the first survey that what waslater brought into the corpus as Lot 4 was R. B. Madawela's land.Undisputedly R. B. Madawela had made a young plantation onLot 4. The 1st defendant who is Ensina Perera's son and in facthad witnessed the deed on which Madawela bought, did notcontradict the representations made to the surveyor on the firstoccasion by plaintiff's husband concerning Madawela's land.Even when the surveyor reported Madawela's claim and hisownership of the young plantation to Court, no effort was madeat least at that stage to comply with the requirement that noticeshould be served on claimants before the surveyor. At the trialsurveyor's report would have been read but its contents appearto have received scant attention. It must be borne in mind thatthe surveyor's report is invariably found to be very relevant to thecareful investigation of title — another imperative requirement. Ifas a result of such persistent and blatant disregard for theprovisions of the law a miscarriage of justice results as here, thenthis Court will not sit idly by. Indeed the facts of this case cryaloud for the intervention of this Court to prevent what otherwisewould be a miscarriage of justice.
Sri Lanka Law Reports
(198312 Sri L.R.
But in the circumstances of this case the extent to which theCourt should intervene in the exercise of its revisionary powersshould be given some thought. To set aside all the proceedingswould be too sweeping and cause unnecessary hardship,inconvenience and delay. The substantial relief which R. B.Madawela wanted when he first intervened was the exclusion oflot 4 in plan No.3392 of 17.8.1970 made by S. T. GunasekeraLicensed Surveyor marked X9 although 'he could very well havestaked a claim for an undivided 3 acres from the whole land toinclude Lot 4. As it is there is a well established fence on thenorth of Lot 4 and, as I said before, even the plaintiff's husbandreferred to this Lot as R. B. Madawela's land at the firstpreliminary survey. Hence it is reasonable to infer that after hispurchase in 1943, R. B. Madawela fenced off a portion with theconsent of Ensina Perera who was the owner at that time of theentire remainder, and began possessing it as his own. This is Lot4 in plan X9. Accordingly it would meet the ends of justice ifwithout setting aside the interlocutory decree it is only amendedby excluding from the corpus decreed to be partitioned. Lot No.4 in plan No. 3392 (X9). I also order. The final decree and theproceedings leading up to it from the stage of the interlocutorydecree are set aside. I might add that the District Judge had nopower to allow the intervention after the entry of interlocutorydecree. This can be done only by a superior Court acting inrevision. After the interlocutory decree is amended as directedthe action can proceed in accordance with the law. Subject tothis variation the appeal is dismissed with costs payable to the7(a), 7(b) and 7(c) defendants.
SHARVANANDA, J. – I agree
WANASUNDERA. J. — I agreeWIMALARATNE, J. — I agree
RATWATTE. J. — I agree
Interlocutory Decree varied.
Final Decree set aside.
SOMAWATHIE V. MADAWELA AND OTHERS