087-NLR-NLR-V-30-ABDUL-AZIZ-v.-THAMBY-APPU-et-al.pdf
1928.
( 314 )
Present: Garvin J. and Jayewardene A.J.
ABDUL AZIZ v. THAMBY APPU et al.
-5—D. C. Avissaysdta, 23.
Partition action—-Sale after final judgment, but before formal decree—Validity,
Where, in a par bit ion action, the Court approved of the scheme ofpartition proposed and made order allotting the shares in severaltyin accordance with the scheme, but no final decree was entered,—Held., that the order allotting the shares constituted the finaljudgment in the; action and that a conveyance made after suchjudgment, but before the final decree was entered up, was valid.
T
HIS was an action for declaration of title to an allotment ofland, which formed part of a larger land, in respect of which
proceedings were instituted for partition. Interlocutory decreewas entered on April 22, 1913, declaring the shares to which theco-owners were entitled. , A commission was issued for the partitionof the land and a scheme of partition was forwarded to the Courtby the Ccmmissioner.cn March 14,1914; the learned District Judge
Appui
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confirmed the scheme of partition, reserving to the fourteenth
defendant an opportunity to prove his title to a certain allotment ^6d«ZAzfein severalty which, it was proposed, should be given for his ». Thambtf
share.
This was done by an order entered on May 1,1914. Ob July 29the same year one Eheliyagoda, to whom the lot in sidt had beenallotted under the scheme of partition, conveyed it to AhamadoLebbe, who sold it to the plaintiff. A formal decree for partitionwas entered in the case on May 3, 1918 ; Eheliyagoda conveyed thesame allotment on August 1, 1919, to the third defendant.
The learned District Judge held that the defendant’s titleprevailed.
H. V. Perera, for plaintiffs, appellants.
Navaratnam, for defendants, respondents.
June 7, 1928. Garvin J.—
The allotment of the land which is the subject of the contest formspart of a larger land in respect of which proceedings were institutedunder the Partition Ordinance. An interlocutory decree wasentered in those proceedings on April 22, 1913, declaring thefractional shares to which each of the co-owners was entitled.
Among those co-owners was one Edwin Eheliyagoda. A com-mission was issued for the partition of the land, and a scheme ofpartition was forwarded to the Court by the Commissioner with thereport on June 28, 1913. On March 14, 1914, a proceeding tookplace in Court, in the course of which the scheme submitted by theCommissioner was considered and the learned District Judge directedthe confirmation of the partition "proposed reserving, however, to thefourteenth defendant, whose proof of title had apparently not beencompleted, an opportunity to prove his title and obtain, as and forhis 1 /12th share, a certain allotment in severalty which, it Wasproposed under the scheme, should be allotted as and for that share.
On May 1 this defendant adduced the necessary proof and thefollowing order was entered::—
“The fourteenth defendant Si&appu is present. He producerdeed No. 1,800 of November 25 (illegible). The 12thshare which was allotted to the first defendant to go tofourteenth defendant. Amend decree by allotting thatshare (lot B) to (illegible) defendant. ’*
On July 29,1914, Edwin Eheliyagoda', to whom the lot marked Ahad been allotted under the' scheme of partition, sold and conveyedthe same to one Ahamado Lebbe, who in the year 1921 conveyed itto the plaintiff. On August 1, 1919, Eheliyagoda passed another
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1928. conveyance to the same allotment to the third defendant. TheOabvik J. question for determination is which of the two conveyances made by
Eheliyagoda is to prevail. The earlier conveyance of July 29,1914,
^Thamby “ favour of Ahamado Lebbe was also registered earlier than theAppu deed under which the third defendant claims. But it is suggested onbehialf of the third defendant that a formal decree for partition whichwas entered on May 3, 1916, had the effect of blotting out the titlewhich Eheliyagoda had purported to convey to the plaintiff’spredecessor, Ahamado Lebbe, in consequence of which the latertransfer in favour of the defendant prevails. It is argued that theformal decree of May 3,1916, must be regarded as a final judgment,and that the rights of the parties to the shares in severalty must bedeemed to have been ascertained and declared as at that date.But what is conclusive is the final judgment, and nofrthe mere formaldecree. It is urged by the appellants that the orders of March . 12,1914, constitute the form of the final judgment. Now, it seems tome that that contention is clearly entitled to prevail. On the firstof these two dates an entry on the record shows that the learnedJudge approved the scheme of partition which had been proposed..He went further and allotted shares in severalty in accordance withthe scheme to those who were entitled. But there is perhaps somesubstance in the contention that this order made on that date cannotbe treated an a final judgment for the reason that he left it open to,the fourteenth defendant to adduce formal proof of his title and takethe share in severalty which had been marked out in respect ofthat undivided share. On May l, when that proof had beenadduced, all that remained to-be done was done, when the Judgethereupon made an order which must be construed into a directionthat the final decree should be entered in this case in accordancewith the scheme of partition. It is true that the actual wordsused by him are “ amend decree accordingly. ” This, fornmla wasclearly employed because the District Judge had, assumed that somesort of formal decree had' been entered embodying his order madeon March 14, 1914. It transpires that no such formal decree hadbeen entered. Had it been entered there can be no question thatthe later order would have completed the determination of matterswhich remained to be determined and would have been a' sufficientauthority for. the entry of a formal decree in terms of the scheme ;but the mere circumstance that a decree had not been drawn up interms of his order of March 14; 1914, does not present any difficulty;for the orders taken together still remain, in my opinion, a finaljudgment determining all those questions which remained fordetermination at that date and must be construed to be a directionthat a final decree should be entered in terms of the scheme.. Theformal decree of May 3, 1916, upon which counsel for the thirddefendant relies, was clearly based upon the view of the then acting
District Judge that these two orders amounted to a final judgment.There was no other adjudication and no other judgment than that towhich I have referred. If those orders, therefore, did not amount -,to a final judgment, there is no foundation for the decree upon whichthe defendant relies. For these reasons the judgment under appealmust be set aside and judgment entered for the plaintiff declaringthe second plaintiff entitled to this land. The plaintiffs will beentitled to their costs, both here and in the Court below. –
1928.
Gabvin J-
Abdul Aziz-v. ThambyAppu•
Jatewabdene A.J.—I agree.
Appeal allowed.