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Present: .Dalton and Drieberg JJ.
DOLOSWELA RUBBER & TEA ESTATE CO. v.SWARIS APPU et al.358—TJ. 0. Ratnapura, 4,519.
Appeal—Respondent's objection to decree in favour of other respondents—Identity of interest between appellant and respondent—CivilProcedure Code, s. 772.
Section 772 of the Civil Procedure Code is not available to arespondent, who desires to question the decree in favour of anotherrespondent.
An exception may be allowed in cases where there is an identityof interest between the appellant and the respondent againstwhom the statement of objections is directed.
PPEAL from a judgment of the District Judge of Ratnapura.The facts appear from the judgment of Drieberg J.
H. V. Perera (with him Deraniyagala), for defendant, appellant.
N. E. Weerasooria, for plaintiff, respondent.
Soertsz, tor first intervenient respondent.
Amaraselere, for second intervenient respondent.
July 16, 1929. Drieberg J.—
The plaintiff-respondent claimed an undivided l share of Hal-kandaliyawatta and damages against the defendant company,
• appellant, which he said was in possession of a larger share than itwas entitled to.
It is admitted that Dines and Bandulahamy were the owners ofthis land and that the latter died intestate and without issue.Dines had issue, Loku Ettana and Mituruhamy who died intestateand without issue. Loku Ettana had four children, Mudalihamy,Rankira Hamy, Malhamy, and Yahapath Hamy. It was notagreed whether they were all children by one marriage or whether' Mudalihamy was the issue of her first marriage and the other threeby a subsequent marriage; arising out of this was a questionwhether in the latter case. Mudalihamy would be entitled to a $share, and the children of the second marriage to the other | share,or each to a 1/6 share, or whether all the children took equally.
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On the first day of the trial the second intervenient respondentclaimed that Jotihamy had been adopted by Dines, and an issue onthis point .was framed.
The learned District -1 udge says that this action as it was insti-tuted was a simple one; it has become complicated by a change ofattitude of some of the parties. The judgment, in my opinion, isright and it is only necessary to examine the claims in detail forthe purpose of a question which arose at the argument before us,viz., whether the statement of objections under section 772 of theCivil Procedure Code filed by the plaintiff and the first intervenientrespondent could be admitted and considered.
The plaintiff-respondent claimed a £ share on the ground thatthe four children of Lokti Ettana were equally entitled to the landand that he had bought the £ share of Bankira Hamy. Headmitted that the appellant company was entitled to a J sharefrom Malhamy. The appellant company in its answer claimedtitle to a i share, but said that the plaintiff-respondent was notentitled to more than 1/6; why it said so is not clear, for BankiraHamy and Malhamy were entitled to similar shares. The answeradmits that the four persons named in the plaint were the ownersof the land but denied that they owned it equally; no reason wasstated for this. On the plaint and answer the only real issue,therefore, was one of damages.
The first intervenient respondent then filed a statement of claimand asked to be allowed to intervene. He took up the same positionas the plaintiff-respondent that each of the four children of LokuEttana was entitled to a 1 share. He claimed the } share ofMalhamy against the appellant company on ah earlier transfer.
Later the second intervenient respondent claimed to intervene' onthe ground that he was entitled to a £ share. In his petition hesaid that Jotihamy, who was a son of Loku Ettana by Mudalihamy,her first husband, was by inheritance and long possession entitledto a £ share and that Bankira Hamy, Malhamy, and TahapathHamy were entitled to the remaining half share, each owning a 1/6share. He claimed- Jotihamy’s £ share on at deed of gift from him.On the first day of the trial his position was stated more definitely,viz., that “ Jotihamy’s mother was an adopted child of her father,the original owner of thjs land ”; this is a mistake, for. what thesecond intervenient respondent claimed at the hearing was thatJotihamy was adopted by Dines.
After the hearing had continued for two days the first intervenientrespondent was allowed to amend his statement of claim by allegingthat Tahapath Hamy had married in diga and forfeited her inherit-ance and that Mudalihamy, Bankira Hamy, arid Malhamy becameentitled to the land. He did not, however, claim a J share, forhis deed gave him title to a only.
Dolosicela 'Rubber <fcTea EstateCo. v. StuartsAppu
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DoUtswelaRubber <9Ten Estate-Go. v. SmartsAppu
I think the Court should not have allowed the second intervenientrespondent to intervene. The dispute up to this stage, between theplaintiff-defendant and the first intervenient-, was limited to them-selves and proceeded on a common basis of the four children ofLoku Ettana being entitled to the land equally. Once the digamarriage of Yahapath Hamy was brought in, the Court shouldhave made her a party so as to enable it “ effectually andcompletely to adjudicate upon and settle all the questions involvedin the action ”—section 18, Civil Procedure Code.
The trial Judge held (1) that Yahapath Hamy was not marriedin diga (2) that Jotihamy was entitled to a share for tworeasons; that it was proved that he was the only son of the firstmarriage and that as such he would inherit a £ share and not takeequally with the other children; but he also held that the adoptionof Jotihamy was proved and that on that footing. he would heentitled to more than a £ share, but that by agreement hispossession was limited to a share; (8) that as between the firstintervenient respondent and the defendant company the formerwas entitled to Malhamy’s interest save her life interest, to whichthe defendant company was entitled.
On this basis the Judge found that the plaintilt-respondent wasentitled to a J share, the first intervenient defendant to a J share,subject to the defendant company’s right to Malhamy’s life interest-in this share; the second intervenient respondent was declaredentitled to a % share. The plaintiff-respondent was allowedRs. 125 as damages. No order was made as to costs, and I thinkthis right as all the parties desired an adjudication on their rights.
The defendant company appealed on the grounds set out inparagraph (8) of the petition of appeal. Of these, (b) and (d)concern only the first intervenient respondent and relate to theconflict in their titles derived from Malhnmy; (c) is a statementthat the appellant company had made out a title by prescriptivepossession to a J share, and (a) that the Judge should have heldon the evidence that Malhamy was entitled to } share and not toa J-. The petition of appeal does not deal specifically with thegrounds on which the judgment was based, and I can only assumethat the appellant accepted the position originally taken up by theplaintiff-respondehl, viz., that all the children of Loku Ettana tookequally, Yahapath Hamy not having forfeited her rights. It shouldbe noted that this is consistent with the position that Loku Ettanawas twice married, if it be the law that the children <xf both marriagestake equally, but this is not. so (Siriya v. Kalita (Fail Bench) 1).
The plaintiff-respondent has filed a statement of objections undersection 772 of the Civil Procedure Code on these grounds: (1) LokuEttana was not married twice, and even if she was all her children
1 (1899) 9 S. C. C. ii
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took equally ; (2) there was no proof of adoption of Jotihamy; (3)1929.
the plaintiff-respondent had not been allotted the shares that shouldhave oome to him from Bandulahamy; (4) the. plaintiff-respondentwas entitled to a J share by prescriptive possession; (6) the BiMerdamages awarded were not sufficient; (6) the plaintiff-respondent Tea Estatewas entitled to his costs against the defendant and the second ‘ Appaintervenient respondent.
So far as these affect the appellant, grouuds (1), (2), and (3) donot do so adversely but are directed to secure for him a larger sharethan the £ share awarded to him and the plaintiff, for, apartfrom the considerations of prescriptive possession those claiming fromRankira Hamy and Malhamy must get the same share,. This isnot a case in which the plaintiff-respondent is seeking to supportthe decree on grounds decided against him, and if section 772 isavailable to him it must be for the purpose of his objecting to thedecree in ,favour of the appellant; this is clear from the. conditionthat notice of the objections should be given to the appellant.
These objections are really directed to reducing the share givento the second intervenient respondent. Grounds (1) and (2) are clearlyso intended, and if the plaintiff succeeds on these it would affectthe decree so far as the appellant is concerned, not adversely butby. enlarging his share to i; these grounds cannot, therefore, beregarded as those on which the plaintiff objects to the decree infavour of the appellant, but they are grounds on which the plaintiff-respondents says that the second intervenient respondent should havegot less and he and the appellant company should have got more.
It has been held that section *772 is not available to a respondentwho wishes to question the decree m favour of other respondents;if he wishes to do so he must appeal (Croos v. Fernando. Noordeen v.
('handrasekere, a Pdldano v. Horatala 3,) in which the possibility ofcertain exceptions was recognized; an exception may be allowedin cases where there is an identity of interests between the appellantand the respondent against whom the statement of objections isdirected, but in this case there is no such identity of interests, for *the second .intervenient respondent claims his i share adverselyto the appellant and the plaintiff-respondent.
The third ground of objection is not very clear, but it isundoubtedly. directed to reducing the h share given to thesecond intervenient respondent.
The fourth ground, viz., that the plaintiff-respondent was entitledto a share by prescriptive possession, is one that affects theoilier parties, and should have been put forward in an appeal towhich they were respondents: if the objection on this point isallowed so far as the appellant alone is concerned it cannot be
1 (1913) l'Bal. Xotes 84.* (1913) Wijewardene’s Reports 24.
3 (1925) 3 Times of Ceylon Reports 58.
DdoswelaRubber d'Tea EstateCo. v. SiearisAppu
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considered apart from the others against whom the objection cannotbe.allowed. The only objections which can be allowed are thoserelating to damages and to costs between the plaintiff-respondentand the appellant company; the claim fbr costs against the secondintervenient respondent is based on grounds which cannot beallowed and must therefore fail.
The first intervenient respondent also filed objections in which hedenies the adoption of Jotihamy, the two marriages of Loku Ettann.the possession for the prescriptive period o.f a £ -share by tiresecond intervenient respondent, and he contends that Jotihamycould not have inherited the shares of Bandulahamy and Mituruhamy.These are all objections to the decree in favour of the secondintervenient respondent and cannot be considered. He alsoobjects to the finding that Yahapath Hamy was not parried indiga; the position here is somewhat different, but this contentionis scarcely tenable; all parties went on the'footing that YahapathHamy had rights in the land, stating so expressly in their plead-ings, and it was after two days’ trial that the first intervenientrespondent raised this point. There is strong evidence thatshe was not married in diga and the trial Judge says that thecontention that she was is not worth serious consideration
Begarding the plaintiff-respondent’s complaint that the damagesawarded are inadequate, I see no reason to doubt the correctness ofthe judgment on this point.
The appeal is dismissed. The appellant will .pay the costs ofthe appeal of the plaintiff-respondent and the first and secondintervenient respondents.
Dalton J.—I agree.