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Present: Schneider A.J. and Loos A.J.
DIAS v CARLIN AH AMY., 61—D. 0. Ratnapura, 3,123.
Partition—Nindagama^Decree for sale—Void.
Lands subject to service tenures cannot be sold or partitionedunder the provisions or' the Partition Ordinance, unless it ' may bein cases where the proprietor of the nindagama and the paraveni nilakarayaare all consenting parties to the proceedings.
A decree for sale of such a panguwa was held to be'void,np HE facts appear from the judgment.
A. St. V. Jayawardene and Canekaratne for defendant, appellant.
R. L. Perera and Weeraratne, for plaintiff, respondent.
July 3, 1919. Schneider A.J.—
The plaintiff seeks to vindicate title to certain premises m thetown of Ratnapura, which consist of a land called Kalluappulage-watta and the house standing thereon. His title is a certificate ofsale issued in pursuance of a sale held under the decree in actionNo. 2,125 of the District Court of Ratnapura, in which the premisesin question were the subject-matter of • proceedings under thePartition Ordinance, No. 10 of 1863. Neither the plaintiff nor thedefendants pleaded that the decree in question was void, inasmuchas the . premises in dispute are part of a panguwa in a nindagama,subject to service to the Maha Saman Dewale. It may be taken asestablished by the-evidence, oral and documentary, in this action,that the premises are part of the Sanasige panguwa of a nindagama,of which the proprietor is given in the Register of Services as Sabara-gamu Maha Saman Dewale; that action No. 2,125 proceeded, andwas decided upon the footing that the parties to it were absolutelyentitled to the land Kalluappulagewatta; that the Maha SamanDewale was not a party to the action, and that the title set out andproved was that of the paraveni nilakarayas as absolute owners,without disclosing the fact that they were entitled only as suchnilakarayas. The one issue which was argued before us was whetherthe decree in question was void. The learned District Judge heldagainst the defendants on this issue. He appears to have been ofopinion that as the decree had' been entered after due investigation/and the first defendant had not made any claim to the house on thepremises in those proceedings, her right to the house was concludedby the decree, and that it was not open to the defendants to question
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the validity of the deoree. I am unable to agree with the learnedDistrict Judge. It seems to me that he has missed the very essenceof the defence. The defendants do not attack the deoree in questionupon the ground that it does not bind them because they were notparties-to it, but for an entirely different reason. Their contentionis that the decree is an absolute nullity, for the reason that theCourt which pronounced it had no jurisdiction over the subject-matter of the action. They Bay that the land in question is, fromits very nature, incapable of being the subject-matter of an actionunder the provisions of the Partition Ordinance. Upon the defend-ants’ contention two questions arise: Are the .defendants entitledto show in this action that the deoree in question is a nullity?And, next, can a land which forms part of a panguwa in a nindagamanot be the subject of proceedings either for partition or sale underthe Partition Ordinance? The answer to the first of these questionsis in the affirmative, the foundation of the title of the plaintiff is' the .decree. It is open to the defendants to show that the certificatewhich derives its validity from that decree is void and of no effect,because the decree itself is invalid, in much the same way as itwould be open to them to show that a deed which is the foundationof the title is void. The authority for the proposition that a partyto an action may show in that action any decree relevant to that'action was delivered by a Court not competent to deliver it i3 to befound in section 44 of the Evidence Ordinance, No. 14 of 1895, andin the case of Neeldkutty v. Alvar1. The answer to the secondquestion is that such a land cannot be the subject of proceedingsunder the Partition Ordinance. It has been held by this Court inseveral cases that the paraveni nilakarayas of a panguwa of anindagama cannot maintain an action for the partition of the landsin the panguwa. These cases were considered, and had theirculmination in the Full Bench decision in the case of Appuhamy v.-Menike.2 The reasons for the decision appear to be two;, one, thatthe right of a paraveni nilakaraya falls short of the ownershiprequired by the Partition Ordinance; and, next, that the servicesare indivisible. It was submitted to us that these reasons were notapplicable where the proceedings terminated in a sale of the corpussought to be partitioned, because then the corpus would pass underthe sale as an entity, and the services would still be attached to itin spite of the sale. This argument, it seems to me, is not sound.It does not meet the first of the reasons that the right of a paraveninilakaraya is not an ownership which would entitle him to pro-ceedings under the provisions of the Ordinance. The argumentcontains a fallacy. It is not correct to say that the services- wouldattach to the land and be transmitted with it on sale. The effectof a decree under the Partition Ordinance is to wipe out all encum-brances not expressly reserved. The purchaser would, therefore,
1 (1918) 20 N. L. R. 372.* (1917) 19 N. L. A. 361.
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get a title free of the encumbrance to render services. I am,therefore, of opinion that lands subject to service tenures cannot besold or partitioned under the provisions of the Partition Ordinance,unless it may be in cases where the proprietor of the nindagamaand the paraveni nilakaraya are all consenting parties to theproceedings. This case is a specially hard one for the plaintiff, whohas paid a large sum of money to purchase the premises in question,and who will probably find that the money he paid is all of itdissipated by now beyond all hope of recovery, but the law on thepoint is clear, and' hard cases should not lead to laying down bad law.
I would, therefore, allow the appeal, with costs, and set aside thedecree, and dismiss the plaintiff's action, with costs.
Loos A.J.—I agree.
DIAS v. CARLINAHAMY