038-SLLR-SLLR-2003-V-3-EASWARY-v.-SIVANATHAN-AND-OTHERS.pdf
CA
Easwary v Sivanathan and others
(Amaratunga, J.)
211
EASWARYv
SIVANATHAN AND OTHERSCOURT OF APPEALAMARATUNGA, J.
ABEYRATNE, J.'
CALA 234/2002DC COLOMBO 17262/POCTOBER 30, 2002
Law of Thesawalamai – Partition Law 21 of 1977 – Plaint filed against wife notmaking husband a party – Is it valid? – Court making order to amend plaint byadding the husband – Legality.
Held:
The only defect in the plaint is the failure to make petitioner’s husbanda party. No relief is claimed against the petitioner. This being a parti-tion action, the plaintiff can file another action even if the case is dis-
. missed.
There is no prejudice caused to the petitioner by allowing the plaintiffto amend the plaint by adding the petitioner’s husband or any advan-tage to her dismissing the action.
APPLICATION for Leave to appeal from the Order of the District Court ofColombo.
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Sri Lanka Law Reports
[2003] 3 Sn L.R
Cases referred to:
Ibrahim v Annamma – 1982 2 SRI LR 633 (distinguished)
Candappa v Sivanathan – CALA 206/92 – CA 712/92, CAM 28.5.93(distinguished)
S. Mandaleswaran with P. Peramunegama to appellantF.C. Perera for plaintiff-respondent.
Other respondents absent and unrepresented.
Cur.adv.vult.
August 26, 2003AMARATUNGA, J.
This is an application for leave to appeal against the order of 01the learned Additional District Judge dated 06/06/2002 allowing the. petitioner’s husband to be added as a party to the partition action.
The plaintiff-respondent has filed this partition action for thepartition or the sale of a block of land about 21 perches in extentsituated at Kotahena. According to the plaint all parties to the par-tition action are persons governed by the Thesawalamai Law. Theplaintiff is one of the sons of the original owner of the property. Theappellant is a daughter of the original owner. It is stated in the plaintthat the appellant was given in marriage with a dowry without leav- 10ing a right to her to be an heir to the intestate estate of the originalowner. The petitioner has sought a decree for the partition or saleof the property among other children and the heirs of the deceasedchildren of the original owner. The plaintiff has not conceded anyshare of the property to the 1st defendant-petitioner and it is stat-ed in the plaint that she has been named as a defendant to enableher to prove if she has any right to the property.
The 1st defendant has filed her statement of claim. In her claimshe has stated that the property sought to be partitioned was herproposed dowry; that her father has fraudulently got the deed of 20purchase written in his name; that she and her husband with theirmoney constructed a house in the said property which now bearsassessment Nos 45 and 45/1; that during the riots in July 1983, thebuilding was partially destroyed; that her husband got the property
Easwary v Sivanathan and Others
CA (Amaratunga, J.); 2t3
released to him by REPIA and rebuilt the house; that Arulananthan,one of her brothers had transferred his rights to the property to herby deed in 1972 and that she and her husband had acquired pre-scriptive title to the corpus to be partitioned.
She has further taken an objection to the validity of the plainton the ground that she being a woman subject to Thesawalamai isnot a feme sole who can sue or be sued without making her hus-band a party. On this submission the Court having heard submis-sions of parties has made order allowing her husband to be addedas a party or the plaintiff to file an amended plaint.
In this appeal the petitioner seeks to have that order set sideand the plaint in the partition action dismissed. It is the correct legalposition that a married woman subject to Thesawalamai cannotappear in Court without being assisted by her husband. Ibrahim vAnnammaSV In Candappa v Sivanathanit was held that a plaintfiled by a married woman subject to Thesavalamai without theassistance of her husband is not a valid plaint and as such anamendment cannot be brought to a plaint which has no existencein law.
In this case there are several other defendants and as far asthey are concerned there is a valid plaint. In the plaint the onlydefect is the failure to make the petitioner’s husband a party. In thisaction no relief has been claimed against the petitioner and it isspecifically stated that she has been made a party to enable her toestablish any right she has to the property sought to be partitioned.This being a partition action, the plaintiff can file another actioneven if this case is dismissed. In Ibrahim v Annamma (supra) theaction was on a promissory note. In such a case if the action is notproperly constituted the dismissal of the action can produce somemeaningful result to the adverse party. After the dismissal of theaction and before a fresh action is filed the cause of action mightbecome prescribed. In a partition action no such thing can happen.Therefore the dismissal of the action would not result in any mean-ingful benefit to her. On the other hand it can further delay thisaction causing prejudice to the other parties.
In this case the land sought to be partitioned belonged to thefather of both the petitioner and the. plaintiff. The petitioner has
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[2003] 3 Sri L.R
pleaded prescriptive title and also that the father held the land intrust for her. These are matters to be adjudicated at a trial. Theamendment allowed is merely to cure the defect in the plaint. Inthese circumstances I cannot see any prejudice caused to the peti-tioner by allowing the plaintiff to amend the plaint by adding thepetitioner’s husband as a party and any advantage to her by dis-missing the action. Accordingly the appeal is dismissed withoutcosts.
ABEYRATNA, J. – I agreeApplication dismissed.