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Present : Sir Charles Peter Layard, Chief Justice, Mr. JustioeWendt, and Mr. Justice Wood Benton.
FERNANDO v. FERNANDO et al.
D. 0., Ghilaw, 25,448.
decree — Conclusiveness — Minors — Community of property — Shareof children—Burden of proof—Ordinance No. 10 of 1868, ss. 6and 9.
By virtue of section 9 of Ordinance No. 10 of 1863, a decreeforpartition is binding on all persons,includingminors,whether
parties or not, and the only remedy open toanyonewho is aggrieved
bysuch a decree is the remedy indicatedintheprovisoto that
section, viz., an action for damages.
Where the children of two spouses married in community ofproperty seek to vindicate their shares in any property, belongingto the common estate, which has been alienated or encumberedbythe survivor of the two spouses, theonusison thechildren
to show that without the subject-matter of the action they hadnot received their proper shares out of the common estate.
I TEARING in review, preparatory to appeal to His MajestyA * in Council, of the judgment of the Full Court in Appeal inFernando v. Fernando (1).
Walter Pereira, K:C. (with him H. J. G. Pereira and E. W.Jayewardene), for the appellants.
Domhorst, K.C., for the mortgagee (C. A. Hutson).
Cur. adv. vult.
23rd October, 1905. Wood Renton J.—
This case comes before us in review under the following circum-stances. The appellants Hugo Fernando, Mary Tisera, and PatrickFernando are the children of one M. P. Manuel Fernando, who isnow dead. Mabuel Fernando, his wife Agida Fernando (the motherof the appellants), and certain other persons, whose names areimmaterial, were the joint and common owners of an allotmentof land called Maduwa. Agida. Fernando died in 1881. In 1886an action was brought for the partition of the land Maduwa. It isimportant, for the purposes of the present case,' that the chrono-logical order of events should be carefully stated. The plaint wasdated 6 th November, 1886. Manuel Fernando was made a
(1) (1903) 9 N. L. B. 237.
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defendant to the suit, but the appellants, who were' then minors,were not represented. On 1st December, 1886, all parties appearedbefore the District Court of Chilaw and consented to the partition,and a decree was made accordingly, one-fifth share being allottedto Manuel Fernando. As .the appellants’ mother had been marriedin community, and as the land in question belonged to the com-munity, they acquired a right on her death to their mother’s share.The result of the partition* action being to allot one-fifth to ManuelFernando, it follows that the appellants became thereby entitledto one-tenth share of the land in question, and that their fatherwas only owner of one-tenth. After the decree for a partition hadbeen made, the steps prescribed by “ The Partition Ordinance,1868 ” (No. 10 of 1863) for applying the decree to the land were nexttaken. On 81st January, 1887, a Commissioner was appointedto survey and partition the land. After some delay, owing to thenecessity of substituting new Commissioners, the survey and parti-tion were filed on 25th November, 1887. On 30th May, 1888, thefinal decree for partition was made, all parties consenting. ManuelFernando had not taken out administration to his wife’s estate.But in 1895 he moved for and obtained a certificate of title for thepartition of the land, and in 1901, by bond dated 9th Februaryin that year, he mortgaged the entire one-fifth share allotted to himin the partition suit to Mr. Charles Alfred Hutson, the presentrespondent, for the sum of Rs. 40,000. Manuel Fernando diedintestate on the 22nd of March, 1901, leaving the mortgage debtwith interest thereon due and undischarged. The appellantsresided with him (under his care and guardianship so long as theywere minors) on the land in question during the whole period fromthe decree in the partition suit until his death, and they have beenin possession of the property ever since. They attained majorityrespectively in-1895, 1897, and 1901. There is no suggestion thatin mortgaging the land Manuel Fernando was actuated by fraud;but there is nothing on either side to show for what purpose the landwas mortgaged or what’ was done with the money. Administrationwas taken out to Manuel Fernando’s estate by one Alensu Peter Fer-nando on 27th August, 1901. Mr. Hutson obtained judgment on hiBbond on 10th February, 1902, and the mortgaged land, including theone-tenth share claimed by the appellants, was seized in execution.Thereafter, on 24th May, 1902, the appellant Hugo Fernandoobtained letters of administration to his mother’s estate; and on2nd July, 1902, the appellants applied to the District Court of
' Chilaw that the decree in the partition suit, of which they allegedthat they were unaware till the land was seized in execution by the
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respondent) should be set aside on the ground of various irregu-larities in the proceedings; that they should be added as parties;and that the whole case should be gone through again. Mr. Hutsonopposed this application. It was dismissed by the District JudgeThe Full Court affirmed his decision. We have now to deal withthose judgments in review.
The appellants’ claim is resisted by the respondents on two maingrounds—(1) that a decree for partition is, by virtue of section9 of the Partition Ordinance, binding on all persons, whether partiesor not, and that the only remedy open to any one who is aggrievedby such a decree is the remedy indicated by the proviso to thatsection, viz., and action for damages; (2) that, in any event, theappellants could not succeed in their present application withoutshowing (which they had significantly abstained from doing) intheir petition that they had, in fact, suffered some damage fromthe proceedings complained of.
Although both the District Judge and the Full Court onappeal have dismissed the appellants’ application on the secondof the grounds, above stated, and although it is, in our opinion,fatal to their case, we may say something as to the first groundwhich was fully argued before us. The material provisions ofsection 9 of the Partition Ordinance are these: —
“ The decree for partitiongiven as hereinbefore provided,
shall be good and conclusive against all persons whomsoever,whatever right or title they have or claim to have in the said pro-perty, although all persons concerned are not named in the saidproceedings nor the title of the owners nor of any of them truly
set forthprovided that nothing herein contained shall affect
the right of any party preffiudiced by such partitionto recover
damages from the parties by whose act, whether of commission oromission, such damages had accrued.”
In the construction of this section by the Courts two points havegiven rise to controversy. In the first place-, are minors “ persons ”within the meaning of the section? [See Garolis v. Wattu Baba (1)and Randeni v. Allis Appu (2)]. In the second place, what is the“ decree for partition ” which section 9 makes “ good and con-clusive against all persons whomsoever ”? Is it the decree priorto the issue of the commission of survey? Or is it the " finaljudgment ” referred to in section 6 of the Ordinance, and pronouncedby the Court on the receipt of the Commissioner’s return ? Thepreponderance of judicial. authority [Bens v. Perera (8), and cf. 1
(1) (1885) 7 S. C. C. 125.(2) (1900) 1 Browne, 284.
(3) (1896) 1 N. L. B. 362 at p. 366.
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Perera v. Fernando (1)]- accepts the former decree [Assma Marikarv. TJsubu Lebbe, vbi sup.; Edo v. Marker Uduma Lebbe Marker (2)].There is one decision in favour of the latter. Neither of thesecontroversies, however, can help the appellants in the present case,in which not only a decree for partition under section 4, but alsoa final judgment under section 6, have been given. Section 9,therefore applies, whichever may be the decree that it speaks of.If minors are not bound by the section, it may be argued that theappellants have suffered no damage by the decree. If minors arebound by the section, then the appellants have to face a furtherdifficulty. Here is an enactment which, in creating new machineryfpr partition, bars all. remedies—after a certain stage in the pro-ceedings but one, which it indicates—an action for damages.No other remedy is open to the appellants. Their present appli-cation is therefore misconceived and fails.
The application fails also in our opinion on the second groundabove-mentioned. From the date of the final decree in the partitionsuit a period of fourteen years elapsed before the present proceed-ings were instituted. During the whole of that period the appellantshave been in possession of the land in dispute: they lived with theirfather till his death. One attains majority in 1895; a second in1897; the 3rd in 1901; and yet they never discover what has takenplace since their mother’s death , in regard to the land which theyoccupy. Even now, not only do they not raise any suggestionthat their father acted fraudulently in encumbering the property,but they pointedly abstain from alleging that they have not in factreceived any benefit from that transaction. Mr. Walter Pereira,their counsel, frankly admitted in argument that, but for Mr.Hutson’s mortgage, we should have heard nothing of the irregu-larities in the partition proceedings. Under such circumstancesit would be highly inequitable to permit the appellants to rip opena matter of such long standing, and there is, in our opinion, nothingin the state of the law that compels, us to do so. It has no doubtbeen decided in Ceylon [Ederemanesingham’s case (3)] that wherea widower encumbers the joint estate without administrationthe mortgagee' takes an imperfect title, subject for its validity toproof on his part of the necessity for the incumbrance. But it hasbeen held also [No 23,338, D. C., Matara (4); Wijeratna v. Abey-.weera (5)] that in an action by heirs to recover land, as against astranger claiming under a mortgage created by a widower, they
(1902) 3 Brotone 5.(3) (1871) Vanderstraoten 264.
(1879) 2 S. C. C. 114.(4) S. C., Min. November 3, 1871.
(5) (1882) 6 S. C. C. 70.
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must first show that without the subject-matter of the action theyhad not got their “ proper shares. ” In the later ease oi Ferdinandisv. Fernando (1) Sir Bruce Burnside C.J. took exception to theseauthorities, and held that in the circumstances the heir need onlyaver in the first instance that the mortgage had deprived him oipuma part of his property which had legally descended to him;and Mr. Justice Dias explained the decision in Wijeratna v. Abey-weera, to which he had been a party, on the ground that the plaintiffshad made admissions indicating that there had been some divisionof the land from which they had derived benefit, but withoutdicnlntiing to what extent. It would appear, however, that SirBruce Burnside’s view was influenced by the fact that the Courtsseemed to throw on the heirs the duly of showing that they had notgot their proper shares—the effect of which would be to relievethe mortgagee of the entire burden of proof oast upon him by thelaw. Moreover, in the Matara case, the heirs were in possessionof only part of the land claimed, and Sir Bruce Burnside was carefulto point out (5 S. C. G. 164) that a presumption of acquiescencemight well have arisen if they had been in possession of the whole.In the present case the heirs have with their father, and since hisdeath by themselves, been in possession of the whole land comprisedin the mortgage for fourteen yearo. They cannot be allowed toreopen proceedings which were completed at least in 1888 for> thesole and avowed purpose of getting rid of an inconvenient incum-brance without saying whether or not they were benefited by itat the time.
The judgment of the (Full Court, upholding that of the- DistrictCourt, must be affirmed with costs.
Layard, C.J.—I agree.
Wendt, J.—I agree. 1
(1) (1883) 6 S. C. 6. im.
FERNANDO v. FERNANDO et al