004-NLR-NLR-V-11-CATHERINAHAMI-et-al.-v.-BABAHAMY-et-al.pdf
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1008.
Jattorney 20.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr, Justice Middleton.
CATHE.R1NAHAMI et al. v. BABAHAMY et al.
Simon de Silva et al., Added Defendants, Appellants.
C., Oalle. 8,085.
Partitiok suit—Interlocutory decree—Decree allottingshares—Final decree
—Conclusiveness—Order for sale—Certificate of sale—Partition Ordinance{No. 10 of 1863), ss. 4, 6, and 9.
The decree in a partition suit which is conclusive under section9 of the Partition Ordinance (No. 10 of 1863) is the final decreeallotting the shares in severalty, and in the case of a sale, wherea sale is ordered in lieu of a partition, it is the confirmation andcompletion of the sale by the issue of the certificate of Court under section8 of the Ordinance.,
Assena Matrikar v. Vsuba Lebbe 1 and Edo et al. v. S. L. Markar ■Uduma Lebbe Markar et al.2 disapproved and not followed.
Judgment of Lawrie J. in 450 C. It. Matara, 622,3 approved andfollowed.
T
HIS was a partition suit. On June 14, 1907, a Commissionerwas appointed to partition the land, the commission being made
returnable on July 16, 1907. On June 26, 1907, Mr. E. Gooneratne,proctor for the added parties, filed statements of claim, and movedfor a notice on the plaintiffs to show cause why the claims shouldnot be accepted. The plaintiffs opposed the application, and theDistrict Judge (K. Macleod, Esq.) made the following order: —
“ I think I am bound .to follow the Supreme Court judgmentin Fernando v. Fernando et al. 4 until it is over-ruled. The practicein this Court has uniformly followed the judgment referred to eversince it was delivered. I dismiss Mr. Gooneratne’s application withcosts.”
The addled defendants appealed.
Van Langenberg, for the added defendants, appellants.
H. A. Jayewardene (A. St. V. .Jayeuardene with him), for theplaintiffs, respondents.
Cur. adv. vult.
January 29, 1908. Hutchinson C. J.—
This is a partition action. After service of the summons on thedefendants a survey was directed to be made. At the-survey one ofthe present' appellants, none of whom were parties to the proceedings,appeared and claimed two strips of the land which was included inthe plaint and in the survey; and the surveyor stated this in his reportdated August 18, 1906. and made to the Court on January 7, 1907.
> (1879) 1 8. C. C. 19.* (1899) Koch’s Reports 13.
* (1879) 2 8. C. C. 114.4 (1905) 9 N. L. R. 241 at p. 244.
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The plaintiff after the survey had the case fixed for hearing, andon February 26. 1907, there was what the District Judge calls anex parte trial; no notice whatever was taken of the claim which thesurveyor had reported; the only evidence taken was that of thesecond plaintiff; and upon his statement as to the title of the plain*tiffs and the defendants, and that there were no other claimants(which was not the fact), judgment was given on March 18, declaringthat the parties were entitled to the land in certain shares andordering a partition in those shares.
On June 19 a commission wras issued to partition the land. OnJune 26 the appellants applied that the Commissioner should bedirected to stay the partition pending inquiry into their olaim; thisapplication was heard on September 13, when the District Judgedismissed it, saying that he was bound to follow the judgment in9 N. L. R. 244, meaning, apparently, that that judgment decidedthat the interlocutory decree in a partition suit is binding andconclusive under section 9 of the Partition Ordinance, No. 10 of1863.
The judgment in 9 N. L. R. 244 contains no decision on the point.But there are other reported cases in which the question whether the“ decree ” mentioned in section 9 is the interlocutory decree orthe final decree was discussed. In Assena Marikar v. Usuba Lebbe 1Phear C.J. held that it is the declaratory decree under section 4; andtwo other. Judges concurred with him. In Edo et al. v. 8. L. MarkarUduma Lebbe Markar et al. 2 Phear C.J. delivered the judgment of theFull Court, following the ruling in the earlier case. In Peris et al. v.Perera etal. 3 Bonser C.J. said that the opinion expressed by Phear C.J.in the first case was only a dictum, not necessary for the decision,and he dissented from it, saying that the interlocutory decree forpartition under section 4, unless it is proceeded with, is .useless for allpurposes. Withers J. delivered judgment to the same effect; andLawrie J. concurred. And in 450, C. R., Matara, 622, * Lawrie J.held that the decree meant by section 9 is the final judgment ofsection 6 in the case of partition, or the certificate of sale in case of asale being ordered; and he stated that this Court has held that thedecree for partition referred to in the 9th section is the final judgmentreferred to in the 6th section, not giving any authority for hisstatement, but perhaps having in mind .the case last quoted, towhich he was a party.
In this state of the authorities I think we must decide accordingto our own opinion as to the meaning of section 9. And in myopinion the last decision was right. The object of section 9 seemsto me to have been to give an indefeasible title to the persons towhom the final decree allots their shares in severalty, or to thepurchaser to whom the land is sold when the sale is confirmed and
1 (18791 1 S. C. C. 19.3 (18961 1 N. L. R. 362.
* (1S791 2 S. C. C. 114.* (1899) Koch's Reports 13.
1908.
January 29.
Hutchinson
C.J.
6
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completed by the certificate of the Court under section 8. ThereJanuary 29. WOuld have been no object in making the interlocutory decreeHutchinson final and conclusive against all the world, including even a lawful
J. owner of the land or of a share in it, who had had no notice of the pro-ceedings. And if the Legislature had such an intention, there wouldhave been no object in the provisions of sections 5 and 8 requiringthe Commissioner to give public notice of his proceedings.
I would therefore set aside the order of September 13, and sendthe case back to the District Court with directions to inquire intothe appellants’ claim. The respondents must pay the appellants’costs of this appeal.
Middleton J.—
This was an appeal from an order declining to accept the addeddefendants’ claim to be made parties to a partition action, on theground that the learned Judge was bound by jthe decision in thecase'of Fernando v. Fernando et al.1 to hold that the final judgment,which was good and conclusive against all the world, had beenentered before the application was made.
The facts of the case were that judgment for partition had beenentered, as the District Judge says, ex parte, and a commission hadbeen issued to partition, and the time for its execution had beenextended and stayed pending the inquiry into the added defendants’claim, which, though reported by the. surveyor before judgment,was ignored by the plaintiff and the Court, and finally dismissed onthe ground before mentioned.
In the first place, the decision in Fernando v. Fenando et al. is not,as the learned Judge appears to think, decisive of the question thatthe decree prior to the issue of the commission of survey for partitionis the decree alluded to in section 9 of the Partition Ordinance (1863),and therefore final and conclusive against all the world; but mybrother Wood Renton recites the authorities for and against thattheory, and distinctly says -that neither of these controversies affectthe question then before him, as in fact a decree both under section4 and a final judgment under section 6 had been, given, and thatsection 9 applied, whatever might be the decree it speaks of.
The question we have to decide is, which is the decree referred tounder section 9, i.e., that upon the judgment ordering partitionunder section 4 or that upon what is called the final judgment undersection 6?
It is, I think, important to notice that the Ordinance enacts insection 9 “ .that the decree for partition or sale given as hereinbeforeprovided shall be good and conclusive against all persons whom-soever, &c.” The words “ as hereinbefore provided ” in my opinionmake it possible to hold that what is known commonly as thepreliminary decree for partition is. or may in effect be the finali (1905) 9 N. L. R. 241 at p. 244.
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decree, negatively as in circumstances such as occurred in Perera v. 1W8.Fernando,1 affirmatively as in the case where no recourse is desired January 29.or had to a commission for the purpose of effecting the actual Middletonpartition of the property.J-
The first case on the point we have been referred to was decidedin 1878 by Chief Justice Phear and Clarence and Dias JJ., and isreported at page 19 of 1 Supreme Court Circular (Assena Marikar v.
Usuba Lebbe).
In that case what I will call the preliminary decree was in effect-held to be the final decree. The judgment for partition was givenon August 1, 1870, and a commission had been issued, though it wasnot clear that any return had been made to it, or whether any so-called final judgment within the meaning of section 6 had beenentered. The appellant sought to intervene on June 12, 1876.
The ratio decidendi of Phear C.J. in that case was in my judgmentthe view that the circumstances of the case showed that the decreefor partition was in fact and effect the final decree in the action asacquiesced in by the parties. Clarence J. seems to go further, andto hold that the decree for partition in any case must be held to bethe final decree, and Dias J. concurred, though it is not stated inthe report whether it was with the reasoning of the Chief Justiceor Clarence J.
In 1879 this case was followed in Edo et al. v. S. L. Markar UdumaLebbe Markar et al.2 by Phear C.J., sitting with Stewart andDias JJ.; and here the Chief Justice in his judgment emphasized theopinion that the decree for partition under section 4 must be takento be the conclusive decree mentioned in section 9 in every case,except where fraud had occurred.
In 1896, in the case of Peris et al. v. Perera et al.,3 Bonser C.J,doubted th’e opinion of Phear C.J. in Assena Marikar v. UsubaLebbe (ubi supra), and expressed the view that it was merely obiterdictum and not necessary for the decision of the case, and delivereda lengthy judgment, concurred in heartily and endorsed by WithersJ., to the effect that the preliminary decree ordering partition undersection 4 was not the final decree alluded to in section 9 of theOrdinance. Lawrie J., the other Judge who took part in thedecision of this case, contented himself with deciding th'at, as it wasfound that all the necessary parties were not before the Court, thepartition decree must be set aside, and the case sent back for furtherinquiries as to the persons interested and their shares.
Having carefully read through the judgments of Phear C.J. andClarence J. in Assena Marikar v. Usuba Lebbe, I am unable to agreewith Bonser C.J. that the rulings embodied in those judgments weremere dicta or obiter of the question then before the Court. Thequestion before the Court in that case was whether the Districti 0002) 3 Brown 5.2 0370) 2 S. C. Hi.
2 1189ftt 2 -V. L. R. 302.
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1908. Judge was right in allowing parties to intervene after the pro-january 29. nouncement of the decree for partition. Phear C.J. says the DistrictMiddleton- Judge refused the application substantially on the ground that theJ- effect of clause 9 of the Ordinance was to deprive him of any discretionin the matter. The fact that the attempted intervention was sixveal's after the pronouncement of that decree does not appear to haveaffected either the decision of Phear C.J. or Clarence J. The questionin reality was whether the intervenients were bound by the terms ofsection 9, and the Court held they were, and, in view of the judgmentgiven by Phear C.J. in Edo et al. v. S. L. Markar Uduma Lebbe Markaret al. (ubi supra), I think that his judgment in the former case mayeven be held to go the length of that delivered by Clarence J.
In 0. A. de Silva and another v. E. P. de Silva and another, exparte H. B. de Silva, intervenients Clarence J. in 1880 enunciated anddeferred to the ruling in Assena Marikar v. Usuba Lebbe (ubi supra),but distinguished the facts of the case before him from that case.
In 1883, in the case of V. G. Don Mathes Appuhamy v. Don James deSilva Wijesiriwardana,2 Clarence J. allowed intervention in a parti-tion suit after a sale had been decreed by consent, but held that if theDistrict Judge had framed, a decree declaring the plaintiff and defend-ant to be respectively entitled to certain shares and had ordered a sale,there would have been a definitive decree barring the intervenients.
In Nono Hamy v. De Silva,3 Burnside C.J., sitting with Dias J.,emphatically stated his concurrence in the ruling of Phear C.J. andClarence J. in Assena Marikar v. Usuba Lebbe (ubi supra), deploringthe exception as regards fraud enunciated by Phear C.J. in Edo et al.v. S. L. Markar Vduma Lebbe Markar et al. (ubi supra), which hedeclined to follow. This was followed in Carolis Appu v. Ratnayaka,*when again the decision in Assena Marikar v. Usuba Lebbe was actedon. From this decision in 1892 until the decision of Bonser C.J. in1896 I have not been able to find any reported cases, but it may beassumed that the law as laid down by Phear C.J. and Burnside C.J.was followed during that period.
In my view, however, the opinion expressed by Bonser C.J. andWithers J. on the point are more in accordance with my. own readingof the Ordinance and the intention of the Legislature than thoseformulated by Phear C.J. and Clarence J. At the same time I amof opinion that the so-called preliminary decree for partition mightunder certain circumstances be in effect the final decree in the suit,as in my judgment it was really in 1 lie case of Assena Marikar v.Usuba JjC-bbe (ubi supra).
In 450, C. U.. Matafa. 622. l.awrie J. followed the dicta ofBonser C.J. and Withers J. in Peris et al. v. Perera et al. (ubi supra).
In the case of Perera v. Fernando (ubi supra) the Court—I can savas a member of it—-fully intended to follow the ruling of Bonser C.J.,
i (1880) a S. C. C. 74.3 (1891) 9 S. C. C. 198.
– (18801 5 S. C. 0. 181.4 (189-2) 1 S. C. R. 274.
5 (1899) Koch's Reports 13.
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and personally so long as I have been on the Bench 1 have done so. 1808.nor do I remember any instance in which the Supreme Court has January 29.acquiesced in the contrary ruling and certainly not any case in Middxbton.which it has deliberately followed it.J.
My brother Wendt in 4,744, C. R., Colombo, reported in the Sup-plement to Part XII. of Volume II. of the Appeal Court Reports,is stated to have held obiter that a partition decree, though only aninterlocutory decree under section 9 of the Partition Ordinance, andtherefore not conclusive as against the whole world, is yet conclusiveagainst the parties to it so long as it stands unreversed.
I think, therefore, here we must, in the case of a conflict ofcollective judgment, as Layard C.J. prognosticated at page 180 inPerera v. Perera,1 determine which decision we must follow, andI have no hesitation in agreeing with my Lord that the decision ofBonser C.J. in Pen's et al. v. Perera et al. (ubi supra) is the correctone, and in accordance with the intention of the Legislature, and' I -agree in the order proposed.
Appeal allowed.