DIAS J.—Almeda v. Disanayaka.
1948Present : Dias and Basnayake JJ.
ALMEDA et al. Appellants, and DISANAYAKA el al. Respondents.
S. C. 15—D. C. Galle, X 306
Partition action—Final decree—Parly deprived of rights—Claim for damages—
Bona fides—Cause cf action—Proviso to section 9 of Partition Ordinance.
A person who brings an action for damages tinder the proviso to section 9of the Partition Ordinance cannot succeed unless he can show that the personsagainst whom he makes the claim have been guilty of a breach of a legal dutywhich they owed him,
Suweneris v. Mohamed (1928) 30 N. L. It. 11 (Divisional Court) doubted byBusnayake J.
TTlPPEAL from a judgment of the District Judge, Galle.
N. E. Weerasooria, K.C., with Vernon Wijetunge, for plaintiffs,appellants.
U.A. Jayasundere, for defendants, respondents.
Cur. adv. wit.
March 15, 1948. Dias J.—
The plaintiffs seek to recover damages from the defendants under theproviso to section 9 of the Partition Ordinance, alleging that the defen-dants, who are brothers, acting collusively instituted a partitition action,
C. Galle, L 935, with the intention of obtaining, and, in fact, obtaininga final decree in that action, whereby the plaintiffs lost their title to theland.
It has been found by the District Judge that the plaintiffs were entitledto certain undivided shares in the land in question; and that they werenot made parties to the partition action instituted by the two defendants
1 In the other case loo, the act can be ratified.* 3 Burge (old ed.) 169, 170.
DIAS J.—Almeda v. Disanayaka.
He holds that the effect of the final decree in that action was to wipeout the plaintiff’s title. There is, therefore, not the slightest doubtthat it was the act of the defendants in instituting and carrying throughthe partition case to the final decree stage which caused these plaintiffsto lose their title. Does that fact per se give the plaintiffs a cause ofaction under section 9 of the Partition Ordinance to sue the defendantsfor damages.
The law on this point was now been settled by the decision of theDivisional Court in Suweneris v. Mohamed1. A plaintiff cannot establisha cause of action merely by proving that the act of another has causedhim some unjustifiable harm. He must be able to go further and establishthat such act amounts to an injuria in the eye of the law. The fact thata party by availing himself of the provisions of the Partition Ordinanceobtained an indefeasible title to the land will not give these plaintiffsa cause of action under the proviso to section 9, unless they can go furtherand prove either that the defendants have done or omitted to. do anythingwhich a legal duty which they owed to the plaintiffs required them notto do or to omit ; or that the defendants have been guilty of some faultor unfairness, lack of care, or inquiry which they were under an obligationto make. In fact, to enable a plaintiff to succeed in a claim for damagesunder the proviso to section 9, the burden of proof is on him to showthat the persons against whom he makes the claim have been guiltyof a breach of a legal duty which they owed him. That duty may besought for outside the Partition Ordinance, or it may be sought for withinthe four comers of that Ordinance ; but parties to partition actions willnot be liable in damages under the proviso to section. 9, if they actedbona fide, and in ignorance of the rights of a third party. Where theplaintiff makes allegations that the defendants in obtaining the partitiondecree acted collusively or fraudulently, the burden of proof on theplaintiff would be as heary as in a criminal case—(1941) A. I. R. PrivyCouncil 93.
The land in question is a paddy field called Imbulgaha Kumbura.The original owner was Louis de Silva Ranesinghe who died leavingthree children—Lucia, Charles and Johana. Lucia died intestate,unmarried and issueless. Johana’s shares have devolved on the plaintiffs.Charles died leaving a widow Georgina Perera Gunasekera and a sonMichael—see P2. Michael died in 1936. So far as one can see thedefendant’s root of title makes no contact with the above pedigree atany point.
In the partition action, D. C. Galle, L 935, the defendants alleged thatthe field in question belonged to one Missi Nona who died leaving a son,John Nelson Ranesinghe, who by deed P 1 of March 14, 1943, conveyedthe land to the two defendants in equal undivided shares. The partitionaction was filed in October, 1943. The final decree gave to each ofthe defendants a divided half share of the whole field.
It is sought to make the defendants liable in damages on variousgrounds. It is said that the defendants lived close to the field and shouldtherefore know about the owners of the land. I do not think that
(1928) 30 N. L. R. 11.
RASNAYAKE J.—Almeda v. Dxsanayaka.
follows. In the case of a paddy field all that one can usually see is thatat various times and seasons the cultivators, who are not necessarilythe owners, are tilling the fields. It is said that the defendants havenot called their proctor to state what instructions were given him, andwhat steps the proctor took to ascertain whether there were other co-owners. It is quite clear that the title of this field was registered in twounconnected folios in the Land Registry. There was the folio E 53/59linked up with folio E 163/290 in which the plaintiffs’ deeds wereregistered- On the other hand, there was folio E 208/85 relating to thesame field in which in January, 1942, John Nelson had registered a lease.Therefore, when in 1943 John Nelson executed the deed P 1 in favour ofthe defendants, it was not negligence or misconduct'on the part of thedefendants or their proctor to have P 1 registered in folio E 208/85.Michael the son of Charles died in 1936. The evidence shows thatafter that date the field in question was not possessed by the otherco-owners who were employed in various parts of the Island. It maybe that John Nelson then entered into possession and gave the deed P 1in 1943.
The District Judge in a careful judgment has given reasons for holdingthat the plaintiffs have not proved their case. I agree with him that,however unfortunate may be the situation of the plaintiffs, this is acase of damnum absque injuria. The evidence when fairly consideredshows no neglect of any duty which the defendants owed these plaintiffs,or any lack or care or inquiry which they were under an obligation totake or make. There is no evidence of any fraud or collusion or lack ofbona fides. The burden lay on the plaintiffs to prove these facts. In myopinion, they have failed to do so. I therefore dismiss the appeal witheosts.
I agree to the order proposed by my brother Dias as I am bound bythe decision of this Court in the case of Suwaneris v. Mohamed 1. I wish,however, to take this opportunity of saying, with the greatest respect,that I find myself unable to agree with the view taken therein. My ownview is that any party prejudiced by a decree under the PartitionOrdinance is entitled to receive damages upon mere proof that he hassuffered damages by the act of the party against whom he brings theaction.
Section 9 of the Partition Ordinance makes a decree obtained thereunderin the prescribed manner final and conclusive against all persons whomso-ever whatever right or title they have in the property although allpersons concerned are not named in any of the said proceedings, or thetitle of the owners or of any of them is not truly set forth therein. Thespecial provision therein in the nature of a proviso which reads
“ Provided that nothing herein contained shall effect the right of anyparty prejudiced by such partition or sale to recover damagesfrom the parties by whose act, whether of commission oromission, such damages had accrued.”
(1928) 30 N. L. R. 11.
BASNAYAKE J.—Almeda v. THsaruzyaka.
has been regarded by this Court not as one that creates a new remedy butas one that merely keeps intact such remedies as exist (Fernando v.Fernando*) under the Soman Dutch Law. Under that system divisionof land held in undivided shares was well recognized (Voet Bk. X. Tit. 3.Sampson’s translation p 3S5). The actio communi dividundo which wasthe action by which such division was effected has received much attentionfrom such writers as Van Leeuween (Censura Forensis Bk IV Ch. XXVIIBarber’s translation p. 220) and Grotius (Bk III Ch. XXVIII sec. 6—Maasdorp’s translation p. 296).
An actio communi dividundo can be reopened like a decree in an ordinary—action (Voet Bk. X Tit. II sec. 34 Sampson’s translation p. 377) and isnot attended by the wide and far reaching consequences attaching to adecree under the Partition Ordinance. How can it be then said that theproviso keeps alive an existing remedy when the evil which the provisoseeks to remedy never existed under the Roman Dutch Lav.’ ?
It is clear from the Partition Ordinance that it is not an attemptto codify the existing Roman Dutch Law. It purports to create a newjurisdiction, new procedure, new forms and new remedies. In fact,one finds in it a complete scheme wherein provision is made for—
(а)a method of institution of proceedings,
(б)a procedure for service of summons,
a right of appeal, and
stamp duty and taxation of costs. I
I am not aware of any decision of this Court which holds that theactio communi dividundo is no longer available for the division of landheld in common. But for practical reasons no one will seek that actionwhen the more effective procedure of the Partition Ordinance is available.Even if any one claims the right to bring such an action he may be metwith the objection that was raised in the respect of maintenance proceed-ings in the case of Anna Perera v. Emalianu Nonis that the specialrights and remedies created by the Ordinance must be held to havesuperseded the common law. It is now well settled that in the case of anAct which creates a new jurisdiction, a new procedure, new forms ofnew remedies the procedure, forms, or remedies there prescribed and noothers must be followed until altered by subsequent legislation—Pasmoreand others v. Oswaldtwistle Urban District Council3, Reg. v. Judge of EssexCounty Court*, Thin Yen v. Secretary of Stale and another 5.
The fact that the remedy of damages is to be found in a proviso tothe section does not in my view by itself indicate that it is a mere savingof an existing remedy. Although the effect of an excepting or qualifyingproviso, according to ohe ordinary rule of construction, is to except outof the preceding portion of the enactment, or to qualify something enactedtherein, which but for the proviso would be within it, provisos whichcontain matter which is in substance a fresh enactment adding to and
1 (1918) 20 N. L. R. 410 at 411.* 11908) 12 N. L. R. 263.
s (1898) A. C. 387.
* (1887) 18 Q. B. D. 704.
6 (1940) 3 Federal Law Journal 50.
WINDHAM J.—In re James Appuhamy.
not merely qualifying what goes before are not unknown in legislationboth here and elsewhere (Rhondda U. D. C. v. Taff Vale RailwayCompany1).
If then the remedy given by the proviso to section 9 is a statutoryremedy given by the Partition Ordinance the limitations placed on theplain words of the section by the cases of Fernando v. Fernando3, Appu-hamy v. Samaranayake3, and Suweneris v. Mohamed (supra) cannot bejustified.