001-NLR-NLR-V-19-BANDARA–v.-BABA-et-al.pdf
THE
NEW LAW REPORTS OF CEYLON.VOLUME XIX.
[Pull Bench.]
Present: Wood Benton C.J. and Shaw and Be Sampayo J.J.
BAND ABA v. BABA et al.
438—D. C. Matara, 6,254.
Partition Ordinance, No, 10 of 1368, 88.4, 8, and 9—Decree for sale—
Conclusive effect.
The decree for sale to which a conclusive . effect is given bysection 9 of the Partition Ordinance, 1863, is the decree undersection 4.
HE facts are as follows: —
The plaintiff-appellant instituted this action in the District Courtof Matara against the defendants for the partition of a land.
On November 11, 1914, the District Judge ordered a partitionof the land, or a sale thereof if a partition was impracticable. In thesaid order no right of way over the land in question was reservedto any one.
On January' 19, 1915, the surveyor, having reported to Court thata partition was not practicable, a sale of the land was ordered onMarch. 29, 1915, but a right of way was not reserved in the saidorder.,
On August 3, 1915, the sale was held without reservation of aright of way, and the plaintiff-appellant became the purchaser ofthe land.
On August 24 the intervenients, respondents, petitioned to Courtthat they had a right of way over the land in question.
Plaintiff-appellant urged that their application was too late, as.-itcame after the order to sell was made by the Court, and that theright of way had not been reserved to any one in any of the orders
1——J, N. A 70344 (7/47)
1916
1916.
Bandarav. Baba
( 2 )
made by the Court; that the sale was held subject to no right oi way.and the plaintiff-appellant asked that the sale be cancelled if a rightof way should be allowed over the land, as a right of way wouldconsiderably diminish the value of the land.
On November 8 the learned District Judge delivered his order,allowing to the intervenients, respondents, the right of way, andrefusing to cancel the sale.
The plaintiff appealed.
E. W. Jayewardene, for plaintiff; appellant.—The order for saleis the final decree within the meaning of section 9. The certificateof sale cannot be regarded as a decree. See 10 N.L.B. 196; 1 Bal.40; 5 S.O.C. 181. Catherinahami v. Babahamy1 is obiter as regardsthis point. The subsequent cases followed this case as regards a salewithout examining the grounds of the decision.
Keunemem, for intervenients, respondents.—Section 9 speaks of“ the decree for partition or sale given as hereinbefore provided. ”In the case of a partition only, it has been held in a series of decisionsthat this decree is not the one mentioned in section 4, but is thefinal decree under section 6. In this connection it is to be notedthat the only section which mentions a “ decree ” is section 4.Section 6 does not refer to “ decree,” but to '' final judgment.” Itfollows that the decree under section 4 is not final in the case ofsale also.
Effect must be given to the words. ” given as hereinbeforeprovided.” The decree under section 4 of the Partition Ordinanceis different from a decree in any other case. Instead of being thefinal stage of the proceedings, it is merely the beginning of a freshprocedure before the Court. It is the intention of section 9 toinclude, not only the decree under section 4, but also all the machinerywhich is based upon i.t, viz., the procedure under sections 5 to 8.When that procedure is completed, in the case of partition by ” finaljudgment,” in the case of sale by “ certificate of sale,” then onlycan the decree be regarded as conclusive against the whole world.The fact that section 9 is placed where it is in the Ordinance, andnot immediately following section 4, supports this interpretation.
It would be an anomaly should the decree under section 4 be finalin the case of a sale, but not final in the case of a partition. Supposethe preliminary decree is for partition, but if partition is impracti-cable when for a sale, and after inquiry the Court orders a sale,what would be the position of a person who intervened after thedecree was entered, but before the order for sale?
Gut. adv. vvlt.
January 28, 1916. Wood Renton C.J.—
This case has been referred by my brothers Shaw and De Sampayoto a Bench of three Judges, for the determination of the question
» (1908) 11 N. L. R. SO.
( 3 )
whether the decree for sale, to which section 9 of the Partition191$
Ordinance, 1868,1 assigns a conclusive effect, is the original orderWood
for sale or the certificate of Court mentioned in section 8. There Rbntoh CUT.have been two conflicting currents of authority on the point. The Sandora •view adopted impliedly by Clarence A.C.J. in Don Mathes Appuhamyv- Baba
v. Wijesiriwardene,i 2 3 * and expressly by Wendt and De Sampayo JJ.in 59—O. C. Colombo, 11,747,* and by Sir Charles Layard C. J.and Moncreiff J. in Lotus Appuhamy v. Punohi Baba,* was that thecertificate of sale is merely evidence of the purchaser’s title withoutany deed or transfer from the former owner, and is not the decreer"'r sale to which section 8 refers. On the other hand, Lawrie A.C.J.,in 450—C. R. Matara, 622,8 held that the decree for sale which isto be final and conclusive is the certificate under the hand of theJudge that the property has been sold under the order of the Court.
The same view was adopted obiter by Sir Joseph Hutchinson C.J.and Middleton J. in Catherinahami v. Babahamy ,* the decision thatfinally settled the controversy as to whether the decree for partitionmentioned in section 9 of the Partition Ordinance, 1863,1 was thedecree referred to in section 4, or the final judgment spoken of in.section 6, of that Ordinance. The view taken by the Judges whodecided the case of Gatherinahami v. Babahamy 6 seems to havebeen that, if the decree under section 9 of the Partition Ordinance,
1is the final judgment in the partition action, it must followas a necessary inference that the decree for sale under the samesection is the last step in the proceedings, namely, the issue of thecertificate of the Court. The fallacy, as I venture to think it, ofthis reasoning had been pointed out by anticipation by Sir CharlesLavard C.J. in Louis Appuhami v. Punehi Baba, * to which theattention of the Court does not seem to have been called. Catherina-hami v.'Babahamy * was treated as an authority binding upon themby Benches of two Judges in Bandaranaike v. Bandaranaike 7 andPerera v. Alvis.•
Now, however, that the question has been formally raised beforea Bench of three Judges, I have no hesitation in holding that theolder authorities ought to be followed. We are not concerned herewith the policy of the law, although I may say in passing that Ithink that the right of intervention under the Partition Ordinance,
1so far from being extended, should be peremptorily barredin the Courts of first instance, on the expiry of a prescribed periodafter the interlocutory decree, and could be so barred with safely,provided always that- due provision was made for securing greaterpublicity to partition proceedings. All that we have to do atpresent, however, is to construe the Ordinance itself. I do not
i No. 10 of 1863.* (1899) Koch 13.
(1883) 6 S. 0. C. 181.• (1908) 11 N. L. B. 30.
3 S. C. Mira., August 4, 1904.7 (1908) 11 N. L. R. 185.
(1904f 10 N. L. R. 196.* (1913) 17 N. L. R. 135.
1916
Wood
Renton C.J,
Bandaraif. Baba
( 4 )
see how the certificate of title can be regarded as the decree foreale to which section 9 refers. That it is not so is clear from thelanguage of section 8, which speaks of “.the certificate ” under thehand of the Judge that the property has been sold '' under theorder ” of the Court. This enactment clearly draws a distinctionbetween the certificate of title and the decree or order .for sale.
I would answer the question referred to us in the same sense asmy brothers, and I concur with the order which they have proposed.
Shaw J.—■
This case raises the question what is the conclusive decree withinthe meaning of section 9 of the Partition Ordinance, 1868', in thecase where the Court has directed the sale of the property.
In Louis Appuhamy v. Punchi Baba,1 following D. C. Colombo,11,747,3 it was held that the decree for sale is the conclusive decree,and opinion to the same effect was expressed in Don MathesAppuhamy v. Wijesiriivardene.3.
In the more recent cases, 450—C. R. Matara, 622,* Gatherinahamiv. Babakamy,s Bandaranaike v. Bandaranaike,• and Perera v. Alvin *
' the Court appears to have thought that the conclusive decree wasnot the order for sale, but the confirmation of the sale.
In my opinion the earlier decisions are correct, and the order,for sale is the conclusive decree. It is impossible, without doingviolence to the provisions of the Ordinance, to read the words“ decree for sale " used in section 9 to mean the confirmation of thesale. The order for sale is the order finally settling the rights ofthe parties to the suit, and the confirmation of the sale is a purelyformal act affecting the purchaser only, analogous to obtaining aFiscal’s transfer in the case of an ordinary execution, and affectingthe purchaser’s title only.
I would allow the appeal, with costs.
/
De Sampayo J.—
I am of the same opinion. With regard to my judgment in Pererav. Alois,7 I need only say that, as I there stated, I considered myselfbound by the decision in Gatherinahamy v. Babakamy.* My ownview as to what is the final and conclusive decree in the event of asale under the Partition Ordinance was indicated in the earlier caseAbdul Ally v. Kelaart,8 which was approved of in Louts Appuhamyv. Punchi Baba.1 Now that the whole question has come beforeus I have no hesitation in giving effect to that view and in agreeingwith the rest of the Court that, on the true construction of theOrdinance, the decree for sale, to which a conclusive effect is given
(1904) 10 N. L. R. 196.5 (1908) 11 N. L. R. SO.1
8. C. Mins., August 4, 1904.8 (1908) 11 N. L. R. 185.
8 (1888) 5 8. C. C. 181.. 7 f 1913) 17 N. L. R. 135.
* (1899) Koch 1$.• (1904) 1 Bal. 40.
(5 )
1916*
by section 9, is the decree under section 4, by which the title of tbe *
partes s ascertained and the property is ordered to be sold.S^wpayo
This being so, the respondents .to this appeal, who intervened after*
the order for sale had been made and the sale had been carried out, Bqndaraand claimed a right of way over the land, were too late, .and v‘ -Babaare concluded by the previous decree. I would set aside so muchof the order of the District judge under appeal as allows the pathclaimed by the respondents, and award them costs. The respond-ents should, 1 .think, pay to the plaintiff the costs of the interventionin the Court below and of this appeal.
Avpeal allowed.