048-NLR-NLR-V-28-BULNER-v.-RAJAPAKSE-et-al.pdf
( 260 )
1926.
Present : Garvin A.C.J. and Dalton J.
BULNER v. RAJAPAKSE et al.
293—D. G. Kegalla, 6,913.
Partition—Sale after interlocutory decree—Abatement of action—Sub-sequent sale of same interest—Ordinance No. 10 of 1863, s■ 17.
A partition action proceeded to the stage of an interlocutor;decree which was entered in March, 1911. In May, 1911, as noneof the parties had taken steps to procure the issue of a commissionfor partition, the Court made the following order:“ No commission
issued. Lay over.”
By deed dated January 31, 1919, the defendant purchased certainshares of the land belonging to a party to the action.
On March 6, 1924, on an application made to withdraw the action'the court passed the following order:“ This action was laid by
on May 24, 1911. No steps have been taken since that date toprosecute the action. Action abated.”
By deed dated March, April, and June, 1926, the plaintiffpurchased the same interests that had been conveyed to the'defendant in 1919.
Held, that the defendant’s deed being obnoxious to section 17 ofthe Partition Ordinance the plaintiff's title, which was obtainedafter the order of abatement, prevailed.
/PPEAL from an order of the District Judge of Kegalla.
Keuneman, for plaintiff, appellant.
Hayley (with Soertsz), for defendant, respondent.
July 7, 1926. Garvin A.C.J.—
This is a partition action. The contest is between the plaintiffand the fourth defendant. Each of them claims to have acquiredthe interests of one Setie, who was admittedly entitled to 6/32 ofthe land. Setie is dead. She left her surviving three children,Ukku, Opalangu, and Meniki. Opalangu died leaving two children,Hapu and Appuwa. Meniki, another child of Setie, died leavingone child, Mallandu. The defendant by a deed dated January 81,1919, purchased the interests of Ukku (the sole surviving child ofSetie) and of Hapu, Appuwa, and Mallandu, the children of Opalanguand Meniki. By deeds P 3, P 4, and P 5, all executed in 1924, anddated March 24, April 28, and June 16, respectively, the plaintiffpurchased from Ukku, Hapu, and Mallandu. He has obtained notransfer from Appuwa, but he claims, nevertheless, to be vested with
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the interests of all the heirs of Setie. This land was the subjectof another partition action, No. 3,013, instituted in the same DistrictCourt. The action proceeded to the stage of interlocutory decreedeclaring the shares in which the parties were' entitled to the landand decreeing a partition thereof. That decree was entered onMarch 2, 1911. On May 24, 1911, as none of the parties had takensteps to procure the issue of the commission for the purpose ofcarrying out the partition, the Court made the following order:“ No commission issued. Day over.” On July 14 of the same year,the Proctor for the fourth to the eighth defendants, who had beenawarded costs against the plaintiff, filed a bill of costs and moved fornotice of taxation. The bill was taxed on September 21, 1911, andwrit for the recovery for the cost thus taxed was issued. The costswere recovered, and a payment order was issued on December 19,1911. On February 14, 1918, the plaintifE applied to withdraw hisdocuments, and was allowed to do so. There was no further steptaken in the action till March 6, 1924, when an application wasmade on behalf of the plaintifE to withdraw the action. Upon thisapplication the District Judge made the following order: “ Thisaction was laid by on May 24, 1911. No steps have been takensince that date to prosecute the action. Action abated.”
The learned District Judge who heard the matter now underappeal held that the order of May 24, 1911, was in effect a refusalby the Court to grant the application for the partition of this landwithin the meaning of section 17 of the Partition Ordinance, and forthat reason rejected the plaintiff’s contention that the deeds in favourof the fourth defendant were ineffective to pass any title to him inthat they had been executed during the pendency of a partition action.The order of March 6, 1924, is in terms an order of abatement. Nosteps having been taken since 1911, the Court decided that the casewas one in which such an order should be entered, and has done so.But I cannot assent to the view that the order to “ Lay over ”made on March 2, 1911, could possibly be regarded as an order ofabatement. It is not so in terms; steps have been taken in theaction subsequent thereto, and it was thought necessary in 1924 toenter a formal order of abatement. It would seem, therefore, thatthe fourth defendant’s claim is based upon a transfer which was madeafter the institution of partition action No. 3,013 and before thataction abated as the result of an order made under section 402 of theCivil Procedure Code. It is contended, however, that inasmuch asno steps had been taken in that partition action since the middleof 1911 it cannot be regarded as a pending action in 1919, when theplaintifE took his transfer. The case of Lawaris v. Kirihamy 1 isrelied upon as an authority for the proposition that the prohibitioncreated by section 17 of the alienation of undivided interests is only
1926.
Ga&vikA.C.J •
Bulner
v.
Rafapakse
1 3 Bal. Notes of Cases 38.
( 262 )
1926.
Gabvzk
A.C.J.
BvXner
v.
Rojapakse
effective where the partition action is alive and being activelyprosecuted. Counsel is seeking to avail himself of the contentionthat a Us pendens, if it is to be an* effective bar to the alienation ofinterests of parties to the action, must consist of an action whichhas been actively and constantly prosecuted. But what is reliedupon as a bar to the plaintiff's action is not the ordinary rule ofUs pendens, but the express provisions of section 17 of the PartitionOrdinance. The section is as follows: —
" Whenever any legal proceedings shall be instituted for obtaininga partition or sale of any property as aforesaid, it shall notbe lawful for any of the owners to alienate or hypothecate*his undivided share therein unless and until the courtbefore which the same were instituted shall by its decreein the matter have refused to grant the application forsuch partition or sale, as the case may be, and any suchalienation or hypothecation shall be void."
This prohibition is not to have effect merely during the pendencyof the legal proceedings but unless and until the Court has refusedthe application. The language of the section has given rise to much-controversy, but its meaning has now been definitely settled bydecisions of this Court. The prohibition against alienation createdby this section commences to operate when a proceeding for parti-tion has been instituted and continues in cases where partition isdecreed until the final decree for partition has been entered andwhere a sale has been decreed until the issue of a certificate of sale.The section in terms states that the prohibition continues " unlessand until the court before which the same were instituted shall byits decree in the matter have refused to grant the application. "In the case of Babiyala v, Nandothe Court, which consisted ofthree Judges, had before it a case which in all material particularswas identical with the one now under consideration. The case ofLawaris v. Kirihamy (supra) was brought to its notice. Ennis J.,who delivered the principal judgment, differentiated that case on theground that the decision was based on other considerations, butin the course of his judgment he made the following observationswhich are pertinent to the observation in Lawaris v. Kirihamy(supra):"If then the Court can refuse to grant the application
at any time before final decree, the terms of section! 17 of theOrdinance prohibit any alienation till then and declare any suchalienation void. In the circumstances I do not see any room forthe application of the rule of law that an action not activelyand constantly prosecuted is no longer pending. " So far as theclaim of the 4th defendant is concerned, it is beyond questionthat the transfers on which he relies were made after the institutionof the partition proceedings and before the Court had by its decree
{1916) 18 N. L. B. 370.
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in the matter refused to grant the partition or sale. It is, however,urged by counsel for the fourth defendant that the plaintiff is in the•same situation. He contends that though the transfers upon whichthe plaintiff relies for his title were executed after the order ofabatement of March, 1924, was entered, they are neverthelessobnoxious to section 17, in that the Court had not by its decree inthe matter refused to grant the partition. The submission is thatan order of abatement is not a decree by which the Court refuses apartition within the meaning of section 17. The Partition Ordinance,No. 10 of 1863, was enacted long before the Civil Procedure Code.It may fairly be assumed that the Legislature did not there contem-plate orders of abatement for want of active prosecution whichCourts were empowered to enter by section 402 of the Civil ProcedureCode. The decree which is contemplated by section 17 is a decreewhich amounts to a refusal of the partition or sale. It has, however,been held that the provisions of section 402 of the Civil ProcedureCode are applicable to the case of a partition action. See Pernsy. Pavera,1 where Bonser C.J. observed that where an interlocutorydecree has been made and has not been proceeded with, section 402of the Civil Procedure Code should be applied by the Court and itsrolls cleared of the action. This decision was approved in Allaha-koon v. Wickremesinghe2 In the case of Babiyala v. Nando (supra)the Court on the invitation of counsel for the respondent consideredwhether in the circumstances of that case an order of abatementnunc pro tunc should be made. It was decided not to do so, butthere is sufficient indication that the Judge thought that an orderof abatement may be entered in a partition case. But is an orderof abatement such a decree? If the order does amount to a refusalof the partition or sale, it may fairly be urged that it is within theterms of the section. Now the order proceeds upon the inferenceof a want of diligence, on the part of the plaintiff which-arises from thefact that no step in the action has been taken for a year, and it isliable to be set aside by the Court which made it upon applicationmade within a reasonable time and upon sufficient grounds. It isa bar to the further prosecution of the action, but it is a bar whichmay he removed. These are considerations which lend great weightto the submission of counsel for the respondent.
But an order of abatement does amount to a final determinationof the. action when upon application to set it aside the Court refusesto do so. The same effect may be claimed for it when a reasonabletime has elapsed since the making of the order and no action hasbeen taken to set it aside.
In the case before us the plaintiff took no steps in the action fornearly thirteen years. The order of abatement entered thereafter onMarch 4, 1924, was made -upon the application of the plaintiff for a
1926.
Garvin
A.C.J.
BtUner
v.
Rojapakse
J {189(f) 1 N. L. R. 362.
* 4 A. C. R. 8.
1*26.
Garvin
A.C.J.
Bulner
v.
Rvjapakse
( 264 )
dismissal of the action. Since then over two years have elapsed.Under the circumstances the effect of a decree finally terminating apartition action may, I think, be claimed for the order, and that effectmay be claimed for it as at the date on which it was made. Thefailure to take steps to set it aside within a reasonable time givesrise to the inference that the order was well founded and no reasonfor setting it aside existed. I am content to rest my decision inthis case on the ground indicated above, and uphold the title of theplaintiff.
The appeal in this case is allowed. Judgment will be enteredfor the plaintiff for the interests acquired by him. The plaintiff hasnot obtained a conveyance from Appuwa, and must make out atitle to that share before he can be declared entitled to it.
The plaintiff is entitled to costs, both here and in the Court below.Dalton J.—
This appeal arises out of a partition action, the plaintiff claiming6/32 shares of the land in question on three deeds of March 24,April 28, and June 16, 1924.
There had been a previous partition action instituted in 1910 inrespect of the same land in which there was a preliminary decreein March, 1911. Thereafter nothing further appears to have beendone by the parties in that action. As they failed to deposit surveyfees and to issue a commission for partition, on May 24, 1911,. theDistrict Judge made the following order:“ No commission issued.
Lay over.” Then, on March 13, 1913, the owners of the 6/32 sharespurported to convey by deed D 13 their interests in the land thesubject of the partition action to one Kira. Kira's heirs in 1924conveyed those interests to the present fourth defendant.
Then, on March 6, 1924, nearly eleven years after the last pro-ceeding in the partition action, the Proctor for the plaintiff thereinmoved to withdraw the case, with liberty to institute a fresh actionif necessary. Upon that motion the District Judge made thefollowing order: ” This action was laid by on May 24, 1911. No stepshave been taken since that date to prosecute action. Action abated.”
Thereafter, the present plaintiff (appellant) obtained from Ukku,Happu, and Mallandu, three of the four grantors under the deedD 13, on the three dates already set out (P 3, P 4, and P 5), theirinterests in the 6/31 of the land, i.e., 5/32 shares. It is urged onhis behalf that the deed D 13, being an alienation of the land subjectto a partition action during the pendency of that action, is void underthe provisions of section 17 of the Partition Ordinance, 1863.
The trial Judge held that the order ” No commission issued.Lay over ” of May 24, 1911, was in effect a termination of theoriginal partition action. I am quite unable to agree with him, andon appeal counsel for the respondent has been unable to support that
( 265 )
holding. In addition, the trial Judge held that the provisions ofthe Civil Procedure Code with regard to abatement of actions donot apply to partition actions. Past practice approved of by thisCourt has been to the contrary, and it was not questioned onappeal that that practice was correct. The argument of both partiesaddressed to us was on the basis that these provisions of the Codedid apply-to partition actions. No doubt it is possible to conceivein some cases a very difficult position and difficult questionsarising as the result of an order being made under the provisions ofsection 402 of the Civil Procedure Code in a partition action.
In Babiyala v, Nando (supra) the facts were very similar to thefacts in this case, save that there none of the plaintiff's predecessorsjn title were parties to the partition action, whilst the time whichelapsed between the interlocutory order and the purchase by the plain-tiff was even longer than in this appeal. There the Court held thatthe plaintiff's deed was void as against section 17 of the PartitionOrdinance. They further refused to make an order for abatementnunc pro tunc, as asked on behalf of the plaintiff. They consideredthe decision of de Sampayo J. in Lawaris v. Kirihamy (supra), but donot appear to have taken the same view. De Sampayo J. in referringto the partition action there says: “ The action was never proceededwith, no steps having been taken by the fourth defendant toreconstitute it, and it died a natural death.” He holds on the factsthat it had been abandoned by the plaintiff and the plaintiff’s legalrepresentative, the fourth defendant referred to. Hence, presumablythe latter party could nob reconstitute it or plead that the actionwas still pending although no party thereto had taken any steps toobtain an order of abatement. He continues: " Now, after morethan ten years, the institution of the action is put forward asinvalidating all alienations thereafter. In my opinion a partitionaction in order to have that effect must be alive under circum-stances similar to those applicable to a case of Us pendens. If thiswere an ordinary question of Us pendens, I should say that the actionnot being actively and constantly prosecuted was no longer pending.”Finally he states: 44 The fourth defendant was content to have herrights decided in this case on their merits, and her whole attitudeconfirms me in the opinion that the previous partition action wasabandoned and cannot be considered to have the effect of invalidat-ing the alienations made on that footing.” The reason for thedecision would appear to be an abandonment of the action, asclearly established bv the facts.
The question of lis pendens during the period between the orderof abatement and the setting aside of such an order is dealt with inCooray v. Perera 1 when the Court (Wood Renton C.J. and de Sam-payo J., Pereira J. dissenting) held that the action cannot be held as
lttt*
Dai/ton J.
Bulner
v.
Rajapakse
* 17 N. L. R. 460.
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1926.
Dalton J.
Bvlner
v,
Rajapakee
having been lis pendens during that interval. Pereira J. expressedhis opinion strongly to the contrary, but it does not seem to moin any case material here, for there has in fact been no settingaside of the order of abatement, and it would certainly seem thatit could not be set aside now, the time that has elapsed not being"reasonable” within the meaning of section 403. I am unableto see, therefore, under the circumstances here that on any footingthere can be a lis pendens subsequent to March 6, 1924. It is ofinterest also to note that Pereira J. took part in the case of BabiyaUiv. Nando (supra) and was prepared to assent to the order made bythe Court in that case, being only prevented from signing the-judgment by illness.
I am of opinion, therefore, that the deed D 13 was void undersection 17 of the Partition Ordinance, and that the plaintiff was.entitled to the declaration he sought in respect of 5/32 shares of theland and to an order for partition as prayed. The judgment of thetrial Judge should be set aside, judgment being entered for theplaintiff as denoted above, with costs. This appeal is therefore-allowed, with costs.
Appeal allowed.