037-NLR-NLR-V-23-BANDA-v.-WERESEKERA-et-al.pdf
( Iff! )
Present: Bertram C.J. and De Sampayo J.
BANDA v. WERESEKERA el (d.
100—D. G. (Iniy.) Anuradhapwa, 724.
Partition—Land granted by Grown to two persons for themselves andother members of the family— Intervention—Bight of addeddefendants to include in the corpus to be partitioned land notincluded in the plaint.
The added defendants, who alleged that a grant of land madeby the Crown to two persons was not for them exclusively, but forthem and the other members of their family, were permitted tointervene in a partition action merely with a view to secure theprotection of their equitable rights.
The added defendants wished to include as part of the corpus inthe partition action a piece of land which the plaintiff had notincluded.
Held, that as the added defendants were not co-owners, butpersons admitted for the protection of their equitable interests,they were not entitled, in the circumstances of this case, to havethe land included.
The Court has a discretion in the matter, and it requires a verystrong case to induce the Court to permit such an inclusion.
The Court regards with strong disapproval any attempt to usethe Partition Ordinance for the purpose of dealing in an abtionwith distinct portions of land in which the shareholders and theinterests are not the same.
fj^tHE facts appear from the judgment.
Bawa, K.O. (with him Batuwanludaioe), for the appellant.
Samaraioickreme, for the respondents.
1921.
( 168 )
October 25,1921. Bertram C.J.—
This appeal raises interesting questions relating to the procedurein partition suits. Briefly stated, the facts are these. In 1893 theGrown made a grant of some 65 acres to Nuwarawewa Loku Bandaand Nuwarawewa Punchi Banda. It appears from subsequentproceedings that it is alleged that these two persons received thegrant, not for themselves absolutely, but in trust for themselves andother members of their family. The grant, in fact, was made insubstitution for certain land submerged by the reconstruction of atank, and it is said that, although the grant was made out in thenames of Nuwarawewa Loku Banda and Nuwarawewa PunchiBanda, the grant was intended to be for the benefit of all personsinterested in the submerged land. Many years later a partitionaction was instituted by a person who acquired an interest in theland from Punchi Banda, and in this partition action the othermembers of the Nuwarawewa family above referred to came forwardand claimed to be added as defendants. The case came before thisCourt, and it was decided that these intervenients were entitled tobe added as parties. This was not because they were co-owners,for it had been decided in a previous decision of this Court, Silva v.Silva,1 that the persons who, as owners, are entitled to invoke theassistance of the Court in a partition action are persons in whom alegal estate is vested. They were permitted to intervene with a
' view to secure the protection of their equitable interests, so that theCourtrshould not make an order which should ignore those interests.
Having secured this position, however, they go further. Theywish to include as part of the corpus in the partition action a pieceof land which the plaintiff has not included, and had in factexpressly excluded. The basis of this chum is that this land formedpart of the original grant which, as they say, was made to LokuBanda and Punchi Banda in trust for the members of the family. interested in the submerged land. Now, in any case, it is a strongproceeding for an added defendant to invite the Court to -enlargethe corpus in a partition suit by the inclusion of an excluded portion.It is a still stronger proceeding where the persons asking for such anenlargement are not co-owners, but simply persons admitted for theprotection of their equitable interests. I do not say that, evenunder these circumstances, the Court might not give effect to theprayer of such persons in appropriate cases. Certainly the Courtwould have a discretion in the matter, bat it would require a verystrong case to induce a Court so to proceed.
Now, unfortunately, the facts have not been proved before theCourt. But the following facts are stated in the pleadings : Firstly,that in the year 1908 Punchi Banda, one of the grantees, sold 2roods and 32 perches of this land to L. D. Perera. On December 17,
1921.
Banda v.Weresekera
1 {1906) 9 N. L. R. 114.
( 189 )
1908, L. D. Perera sold this same portion to Krisratne and Jaeolyne.On August 8,1913, Krisratne and Jaeolyne sold this same portionto TTa.rmft.nifl Appu, the tenth added defendant, who is theappellant now before the Court. On November 22, 1915, theGrown acquired 20 perches out of this portion from the tenthdefendant. It appears, therefore, that if those statements in thepleadings are to be relied upon, this piece of land has been dealtwith as a separate piece of land, in a series of transactions from1908 down to the present time, and there seems no doubt that it isin the occupation of the tenth defendant, and is of considerablevalue owing to the improvements which have been accomplishedupon it. These allegations are, I think, not seriously contested, andit would be a waste of time to refer the matter to the Court belowfor proof of these statements. I should prefer to say that, inthe circumstances of the case as they appear on the pleadings,it would not be appropriate for the Court to allow these addeddefendants added for the purpose I have explained, to insist on thecorpus of the suit being enlarged.
I would further point out that there is another difficulty whichwould arise in the case if such an enlargement were allowed. Aseparate piece of property would be bought in in which the tenthdefendant, in any view of the circumstances, would have certainspecial rights. There are other difficult questions arising withrespect to this separate portion. It appears, from the pleadingsagain, that Loku Banda, one of the grantees, within a year of thegrant, is said to have given a donation of an undivided one-fourthof the land to his widow. Punchi Banda, however, appears to haveconveyed the whole of his legal interest in the 2 roods and 32 percheson the assumption that he inherited all his brother’s rights. Therewill, therefore, be not only the case of an exclusive interest claimedin a portion of the land sought to be partitioned, but there willalso be contests of a special nature with regard to that portion. Ineed only refer to the case Mr. Bawa cited to us, Cooke v. Bandula-hamy,1 to show that the Court regards with strong disapproval anyattempt to use the Partition Ordinance for the purpose of dealingin an action with distinct portions of land in which the shareholdersand the interests are not the B&me.
In view, therefore, of all the circumstances, I think the learnedJudge ought not to have exercised his discretion in the matter byincluding this separate portion jn the partition suit, and I wouldreverse his order and allow the appeal, with costs.
De Sampayo J.—I agree.
1 (1904) 4 Tam. 63.
1921.
Bsbtbah
C.J.
Banda v.Werestkera