096-NLR-NLR-V-18-BABIYALE-v.-NANDO-et-al.pdf
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1M&*Present: Wood Benton C.J. and Pereira and Ennis 33.
– BABIY ALE v. NANDO et ol44—De 0. Negombo, 6,309.
Alienation pendingpartition—OrdinanceNo. 10 of 1068, 9. 17—
Plaint m partition suit—Should ft be registwidf-^Priontg ofregistered subsequent deed.
The tint defendant instituted in 1897 & partition action for theland in 'dispute.A preliminarydo&va toe'partition*wasentered,
but no further steps were taken in that action, and no order ofabatement was made. The plaintiff purchased on January 4, 1914,an undivided one-eighth share of the land from the heirs of oneSamuel. None ofthe plaintiff'spredecessorsin titlewereparties
to the partition action.
Held, (1) thatplaintiff's deedwas void under section 17of the
Partition Ordinance; (2) that the plaintiff's deed did not becomevalid by registration by virtue of priority under section 17 of theLand RegistrationOrdinance, No.14 of 1891,owing totheorder of
Court allowing the plaint in the previous partition suit not having-been registered.
T
HE facts are set out as follows in the judgment of the DistrictJudge:—
Plaintiff claims two-sixteenths of the land sought to be partitioned.There was an old partition case in 1898, No. 2,056, which advanced asfar as the interlocutory decree. This two-sixteenths was mortgagedby Samuel to Andrisa, second defendant in that case, and Andrisagave evidence to that effect (P 1), bub by an error decree was enteredgiving Andrisa the share as if it were his own. Plaintiff has purchasedfrom the heirs of Samuel. The defendant’s counsel contends that asno final decree has been entered, the case 2,056 is still pending. This
view, I think, is untenable In this case, too, tiie parties,
although they neglected to bring the case to a conclusion, have actedas though the decree had been final, the objectors themselves havingpurchased shares of other co-owners. Further, sufficient time haselapsed for a change in the mode of possession to have taken place,and for such possession to have acquired the force of. prescriptivepossession.
. Again, parties who delay to carry a partition case beyond the inter-locutory decree often believe that they got their shares they
claimed, and go on possessing in .this assumption until they find outthis error in the decree, and move for amendment. In this case, asthe parties did not discover the error, they may have continued to act asthough title still vested in Samuel. It is for the Court, then, to findout what has been the mode of possession since this decree, and whetherAndrisa, in fact, acted on it as if the share were his. But, as Mr. deKretser pointed out, it would have been simpler and safer for plaintiffbefore purchase to have moved his vendee to have procured a final
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decree in No. 2,056. In that ease his position would have beenstronger, and the question would have arisen whether Andriss could,on the strength of an interlpeutoxy decree, have maintained a claimto this share. For it is doubtful whether an erroneous interlocutorydecree can give a party title to a share w^ieh he did not claim.
W. Jayewardene (with him L. H. de Alma), for the third, fifth,and sixth defendants,, appellants.—Plaintiff's purchase was void,as the sale took place pending the partition action. [Ennis J.—Considering the length of time that has elapsed after the interlocu-tory order in the partition case, can an order of abatement bepresumed?] °We cannot presume that an order of abatement wasmade in the case. See Hukm Ghand on Baa Judicata, 707, 4 A, G.
8, 4 McQueen 972.
[Ennis J.—Has not a plaint to be registered to give effect to thedoctrine of lis pendens 9] It is so in England (see 18 Halsbury 221),But here acceptance of a plaint is not a judgment or order whichcan be registered under our Registration Ordinance. Counsel citedBanerjee’s Registration of Documents in India 46, 9 AIL 108. More-over, it was held in Bernard v. Fernando1 that sections 18 and 17 of'
the Registration Ordinance do not apply to partition decrees, as they oare not like other decrees, affecting land merely declaratory of theexisting rights of the parties inter se; they create a new title in theparties, absolutely good against all other persons whomsoever.
Counsel also cited Oou$ Mohomad v. Khan.3
' A* 8t. V. Jayewardene (with him Mahadeva), far the plaintiff,respondent.—As the plaint was not registered the conveyance wasvalid. [Pereira J.—The conveyance was void ah initio.] If the.plaint was registered the partition action would have been properlyconstituted, and the conveyance would have been void in that event.
An alienation after the interlocutory order is not necessarilyrepugnant to section 17 of the Partition Ordinance. See Perera v.Alois,9 Abdul Ally v. Kelaart* Louis Appuhamy v. Punchi Baba.9
The plea of lis pendens cannot be raised successfully unless .theaction was actively prosecuted. Here the parties abandoned thelitigation.
The Supreme Court has the power to make the order of abate-ment nunc pro tunc, as justice would be done in the case in that event.Counsel cited Luwaris v. Kirihamy, 6 Black on Judgments 126,Turner v. London and South-Western, Railway Company.7
E. W. Jayewardene, in reply. [Their Lordships desired to hearappellant why an order of abatement nunc pro tunc should not bemade.]—-That* point is raised foxthe first time here. There is no
^1913) 16 N. L. R. 438.41 Bal 40.(1876) 23 Cal. 460.5W L. R. 196.
(1913) 17 N. L. R. 136 y at page 138.*8 Notes of Cases38.
17 L. R. $g. 561, at page 669.
SBabiya&ev. Nando
29
1916.
jQM%faieNando
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issue on it* 1£ an issue was framed the appellant would have puthis reasons forward.
• The powers of the Supreme Court* are limited by the CourtsOrdinance, and this Court has no inherent power to make an orderof abatement now.
Cur. adv. vult.
July 8, 1915. Ennis J.—
This was an action for partition. The plaintiff purchased onJanuary 4, 1914, an undivided one-eighth share of the land fromthe heirs of one Kaiuhennedige Don Samuel. It appears that thefirst defendant in 1897 instituted a partition action for the sameland. A preliminary decree for partition was entered, but no furthersteps were taken in that aotion, and no order of abatement has beenmade. None of the plaintiff's predecessors in title were parties inthat action. The defendants-appellants contend that the presentaction cannot be maintained.
Two points for consideration have been argued on the appeal.First, whether the plaintiff's deed is void under section 17 of thePartition Ordinance ; and second, whether the deed should not bedeemed valid by virtue of priority under section 17 of the LandBegistration Ordinance, No. 14 of 1891, owing to the order of theCourt allowing the plaint in the previous partition suit not havingbeen registered.
Section 17 of the Partition Ordinance provides that it shall notbe lawful for any owner to alienate his undivided 6hare whenproceedings for partition have been instituted, unless and until theCourt shall, by its decree in the matter, have refused to grant theapplication. It is conceded that the term “ owner" includes allowners, whether parties .to the suit or not. But it is urged that themoment the Court had made a decree for partition it could notalter it, and .thereafter the ordinary rule of lis pendens wouldapply, as the Court could not then make an order refusing theapplication. A decision of De Sampayo A.J., which was agreedin by Lascelles C.J., in Lmvaris v. Kirihamy,1 was cited in supportof this argument. In my opinion that case is not on all fourswith .the present one. There the parly on whose behalf the ques-tion was argued on appeal had not put forward the plea in theDistrict Court, and was content to have her rights decided on theirmerits. Her substantial rights had not been prejudiced, and thiswas one of the grounds for dismissing the appeal. So long as anowner who is not a party can intervene in a partition Buifc at anytime before the final decree is entered up, and it is ..conceded thathe can, the District Court might find it necessary to so far modify its.preliminary decree as to hold the intervenient alone entitled andrefuse to grant the application. If, then, the Court can refuse to
1 B Notes of Cases, 38.
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grant the application at ax$r time before final decree, (he terms ofsection 17 of the Ordinance prohibit any alienation till then, anddeclare any such alienation void. In the circumstances I do notsee any room for the application of the rule o& law that an actionnot actively and constantly prosecuted is no longer pending.
It was urged that the Court should make a nunc pro tune orderof abatement of the earlier action. In my opinion it woufil not beright to make such an order, even if it could be done, for the purposeof rendering valid an alienation of land which the Partition Ordi-nance declares void.
I at first thought .there was some force in the contention, that ifthe order of the Court allowing a plaint in a partition, action is anorder affecting land within the meaning of section 16 of the LandRegistration Ordinance, 1891, the prior registration of the documentof later date would give it validity by priority, but have come tothe conclusion that it could not affect the validity of the laterdocument. If the document is void at the time of execution, itssubsequent registration would not affect the quality of the document,
and it is not necessary then to consider whether an order allowing*a plaint in a partition suit to 6e filed is an order affecting landwithin the meaning of section 16 of the Registration Ordinance. Iwould allow the appeal, and refuse the plaintiff’s application, withoutprejudice to any rights he or his predecessors in title may have.
Wood Renton C.J.—
I agree to the order proposed by my brother Ennis; and with thedistinction drawn by him between the present case and Luwarisv. Kirihamy,1 Mr. Justice Pereira was prepared to assent to theorder Which we are making, but he has unfortunately been pre-vented by illness from signing this judgment. It must, therefore,be regarded as a decision of a Bench of two Judges only.
Appeal allowed.
■ ■■ "oBabiyale
v. Nawjo
& 3 Notea of Cosegj 83.