( 193 )
Present .- Fisher C.J. and Drieberg J.
DE SILVA v. LOKUHAMY102—D. C. (Inty.) Qalle, 20,189
Partition—Decree for ' sale—Share unallotted—Amendment of decreeallotting share—Conclusive effect.
Where a decree for sale was entered in a partition suit and acertain share was left unallotted, and the Court,' thereafter, amendedthe decree by deciding how that share should be allotted,—
Held, that the amendment of the decree waB not a variationof it and that the decree as amended was conclusive. «■
HIS was a partition case. The final decree which was onefor sale contained the following: —
" Unallotted :—I/27th claimed by 39th defendant, l/27th share ofTirfyalage Anacho. ” The land was sold under this decree and themoney equivalent of the unallotted shares remained in Court.According to the finding of the trial judge the l/27th share claimedby the 39th defendant really belonged to the heirs of Docho, thesister of Anacho. The appellants, the heirs of Docho, intervenedclaiming this l/27th share, and on January 24, 1929, the DistrictJudge after inquiry, made order amending the decree and allottingthe said share to them.
On the same day, just after the above order was made, therespondents applied for permission to intervene and claim thesame l/27th share on another basis. The District Judge afterhearing argument, held that his order of the January 24, 1929, wasnot final and ordered an inquiry into the claim of the respondents.The appellants appealed.
H. V. Perera, for appellants.—Once the gap in the decree is filledthere is finality. Even if the appellants had no title the amendmentof the final decree gives finality just as if they had got their rightsin the final decree.
Amarasekera, forrespondents.—There was no adjudication
that the l/27th share was Docho’s. Decree says “ l/27th claimedby 39th defendant.”The39th defendant’s claim was rejected.
The l/27th share isatlargeand can be claimed by anyparty who
establishes a claimtothesatisfaction- of the Court.When an
application for allotment ofunallotted shares is madethe Court
ought to take all the steps taken in the course of a-partition action,e.g., notices, &c.,
J.U. B 11394(10/51)
( 194 )
De Silva v.Lokuhamy
A nnfthar way of looking at the question is that once the share isunallotted it cannot be dealt with under the Partition Ordinance.Money deposited in Court should be dealt with in accordance withthe Civil Procedure Code.
Section 350 requires notice to interested parties. There is nosanctity in the order declaring appellants entitled to the money.
H. V, Perera, in reply.—The Court has jurisdiction to completelypartition a land—allot it to parties and also allot unallotted shares.We must seek a solution that would apply to decrees for partitionas well as decrees for sale.
With regard to the question of fresh notices, &c., all the necessarysteps were taken before the original trial. Those who failed tocome forward cannot claim another notice.
The subsequent intervention is made on the ground that theDistrict Judge has the right to amend his order of January 24.It is submitted that he has not.
August 2, 1929. Drieberg J.—
This appeal arises out of an order by the learned District Judgeamending the decree for sale passed under the provisions of thePartition Ordinance.
In the decree for sale, which is the final decree, two shares of l/27theach were expressly left unallotted. The Court held that a eo-owner, Siman, who was entitled to a l/9th share, left as bis heirsthree children, Odiris, Anocho, and Doeho. The share of Doehowas claimed by the 89th defendant, a grandson, but this couldnot be recognized and in the lecree for sale appear these words:“ Unallotted—l/27th claimed by 39th defendant.; l/27th share ofTiriyalage Anacho. ”
The land was sold under this decree and the proceeds of thel/27th share in question in this case is in deposit in Court.
On January 24, 1929, the Court considered an application by theappellants to be allotted the l/27th share of Doeho. They did notnotice the 39th defendant, but this point is of. no importance asit is clear that he has no title as against them and no claim i6 madeby him. The 80th added defendant proved that she was the childof Lokuhamy, one of the two children of Doeho, and that the 82ndto the 85th added defendants were the children of Siyadoris,deceased, the other child of Doeho. The 39th defendant is a 6onof Lokuhamy and has therefore no present interest in the money.
On January 24, the trial judge after inquiry made the followingorder:“ Amend preliminary decree by allotting l/54th to 80th
defendant, l/108th to 81st defendant, l/108th jointly to 83rd, 84th.85th. ” By “ preliminary decree ” I take it the judge meant thedecree for sale, as this is the only decree.
( 195 )
On the same day the' respondents, who claims adversely to the 1989.appellants, petitioned the Court to be allowed to intervene. It Dbxebkrq j.
must be noted that the respondents claim on a basis which is
opposed to the finding in the judgment. The then District JudgeMr. Schrader, found that Docho was one of three children of Simanand therefore entitled to a l/27th share. The respondents say thatthe three children of Siman were Odiris, Anocho, and Sango, andthat Docho was one of several children of Sango and entitled toonly a l/135th share.
I understand from the later order of the District Judge thatthis petition was presented after he had made the order referredto. He fixed the inquiry into the application of the respondentsfor March 22 and on that date he held that the order which he hadmade on January 24 was no bar to his inquiry into the claim ofthe respondents, it being h£s opinion that the amendment of thedecree had not the same'final and conclusive effect as the originaldecree.
It has. been pointed out in decisions of this Court that to leavea share unallotted in a partition action is unsatisfactory, and inthe case of a decree for partition this is undoubtedly so. In adecree for sale, however, the disadvantages are less marked andit may be said that there is no real objection to such a course.
The purchaser at the sale gets a good title and there & no reasonwhy the final settlement of the action should be unduly prolongedwhen there is difficulty in ascertaining to whom a particular interesthas passed.
In this case the decree left open for future determination thequestion as to who succeeded to Docho’s interest-. The Courtwhich passed the decree has after inquiry now determined that itpassed to the appellants and has ordered the amendment of thedecree by that share being allotted to them.
This is in no sense a variation of the decree, it is nothing morethan a decree, passed on a later date, that the appellants are entitledto that share. I am not aware of any direct authority on this point,but it seems to me that there is good reason for giving to this amend-ment the same conclusive effect that the rest of the decree has;and if this is so the learned District Judge could not entertainthe application of the respondents after the appellants had beenfinally and conclusively declared the owners of this share onJanuary 24.
The order of the District Judge of March 22 is set aside, and theamendment of January 24 will stand. The respondents willpay to the appellants the costs of this appeal and the costs in theDistrict Court consequent on their application.
Fisher C.J.—I agree.
DE SILVA v. LOKUHAMY