070-NLR-NLR-V-26-FRANCISCUS-v.-KOYS.pdf
.( 397 )
Present: Bertram C.J. and Garvin J.
1984.
FRANCISCUS t>. KOYS.45—D. C. Ratnapura, 3,725.
Action—Rights of added party—Claim based upon Fiscals transfer issuedafter institution.
The rights of a party added to an action after its institution mustbe determined as at the date at which he was made a party. Aclaim made by such a person based on a Fiscal’s transfer, issuedafter the institution of the action but before he was added as aparty, may be entertained in such action.
HIS was an action for declaration of title to a land called
X Mahadeniya which formed part of the Kitulpe nindagama.It was established that a half share of the nindagama belonged tothree brothers—Kiri Banda, Punchi Banda, and Tikiri Banda—inequal shares. The interests of Kiri Banda passed to his grand-children who conveyed them to the plaintiff in 1920. The plaintiff,who was thus entitled to J, claimed -fe more by right of purchasefrom one Punchi Banda, the son of Kitulpe Nilame, by the samedeed as that by which he acquired title to ]k It was alleged thatin the year 1859, Punchi Banda and Tikiri Banda, two of the threeoriginal owners of the half share of the nindagamat .conveyed theirinterests to Kitulpe Nilame and his wife Punchi Menika. Theydied leaving four children, through one of whom, Punchi Banda,plaintiff claimedThe added-defendant opposed this claim,
alleging that the interests of Kitulpe Nilame were seized and soldagainst him under a writ issued against him and purchased byVidanelage Appuhamy in 1869. He claimed this J upon a Fiscal'stransfer dated December £0, 1921. This claim was resisted by thedefendant appellant, and the plaintiff, on the ground that theFiscal's transfer cannot be relied on this action, which was institutedon December 16, 1921, four, days before the issue of the transfer.
Samaraicickreme (with him Soertsz and Mervyn Fonseka), fordefendant, appellant.
E. W. Jayewardene' K.C. (with him H. V, Perera and IS. C.Fonseka), for plaintiff, respondent.
17. L. Pereira, for added-defendant, respondent.
T
( 398 )
1984* November 24, 1924. Garvin J.—
Franciscue
t Koy* This appeal arises out of a contest as to the respective interests ofthe parties in a land called Mahadeniya. The District Judgedecreed the plaintiff entitled to £ of this land, the added-defendant,for the heirs of Kuttikande Vidanelage Appuhamy, to £, and thedefendant toThe title to the remaining half share is
admittedly in persons referred to in these proceedings as theTillekeratne family. The defendant appeals.
Mahadeniya originally formed part of a considerable tract of landwhich formed the Kitulpe nindagama, depicted in plan No. 425filed of record. It has been established that as to a half share ofthis nindagama, the title was in three brothers—Kiri Banda, Punch!Banda, and Tikiri Banda—in equal shares. The interests of KiriBanda passed in due course to his grandchildren—Dingiri Menika,Dingiri Banda, and one Punchi Banda—who sold and conveyed thesame to the plaintiff in 1920. The plaintiff has thus established histitle to ^ of all the lands in the nindagama which had not beenalienated at the date of his purchase. Mahadeniya was such a land.
But the plaintiff claimed y* more by right of purchase fromanother Punchi Banda, the son of Kitulpe Nilame, who conveyedthese interests by the same^ deed as that by which thq plaintiffacquired the to which he is admittedly entitled.
In the year 1859 Punchi Banda and Tikiri Banda referred to-earlier as two of the three original owners of the half share of theKitulpe nindagama, with which this action is concerned, sold andconveyed their interests to Kitulpe Nilame and his wife PunchiMenika. These persons died leaving four children—Loku Banda,Medauma Banda, Dingiri Banda, and Punchi Banda—throughwhom the plaintiff claims yff. If Kitulpe Nilame and his wife.died,seized, and possessed of the % acquire^ by them, Punchi Bandaclearly became entitled on their death to fV of the nindagama-But the added-defendant alleges that the interests of Kitulpe Nilamewere seized and sold against him under a writ issued in case No. 5,708of the Court of Bequests of Batnapura, and purchased at the saleby Kuttikande Vidanalage Appuhamy in 1$&9. He claims this £upon a Fiscal's transfer dated December 20, 1921. This claim isresisted by the defendant appellant, and by the plaintiff who is arespondent to this appeal.
It is argued in the first place that the title on the Fiscal's transferof December 20, 1921, cannot be relied on in this action, which wasinstituted on December 16, 1921, four days before the issue of thattransfer. There is ample authority for the principle that therights of parties to an action must be determined as at the date ofthe institution of the action. In this instance the added-defendantcame into the action some timfe after the Fiscal's transfer had beenobtained. No action had bteen instituted, nor was an action pending;
( 399 )
•**
gainst him till he was added as a party defendant. It is contended,nevertheless, that the action as against a party added after institu-tion must be deemed to have been instituted as against him on thedate of the institution of the action against the original defendant.This is a fiction for which no authority was cited.
In the case of Hamido Aratchy v. Lucihamy,l it was held thatan intervenient in a pending partition action who pleaded a title byprescription was entitled to count the period of his adverse possessionsince the institution of the action against the original defendantsand up to the date of the intervention which is the date when theaction was “ brought ’* as against him. It is argued that this decisionproceeds upon the construction of certain words in a positiveenactment, and, in the next place, that the position of the partiesto a proceeding under the Partition Ordinance is not exactly similarto that of the parties to any other action. Without embarking upona critical examination of these arguments, it is sufficient that wehave here at least one instance in which the rights of an addedparty to an action have to be ascertained as at the date when he wasmade a party. As I have observed, no authority was cited for theproposition that an action must be deemed to have been broughtas against added parties as from the date of its original institution.In the absence of authority I am not prepared to accept counsel’scontention.
In this view of the law it was competent for the added-defendantto rely on the Fiscal’s transfer.
It was then sought to impeach this transfer on the ground that■the order of the Court directing the Fiscal to issue it to the heirs of.Appuhamy had been irregularly made. The extracts from therecord of this case show that certain of the heirs of Appuhamyhad been endeavouring from 1918 to perfect their title, and finallysucceeded in obtaining the necessary order on December 15, 1921.These proceedings and the order in question appear on the face ofthem to be regular and in accordance with law.
We were, however, invited to set aside these proceedings for thefollowing reasons: —
That the motion was made by some only of the- heirs of
Appuhamy.
That certain of the heirs of^ the defendant Kitulpe Nilame
were not noticed. .
•(3) That no order should in any event have been made after soconsiderable an interval had elapsed since the actual (saleby Fiscal.
There is no reason to suppose that the interests -of any of theheirs of Appuhamy who still have any rights in this land have beenimperilled by the order in this case. They may be left to., conservetheir own interests. As to the second of these objections it is1 [1923). Tim# Law Jtepjrts, vol. II Part 2. p. U2t
1984.
Gabvqt J.
FraneUcuev. Keys
( 400 )
1924,
Garvin J.
Frandscuav. Koya
sufficient to say that of itself it is not an irregularity of such gravityas to entitle the appellant to the special remedy he seeks. Where "a long period has elapsed since the original sale, a Courts may incertain circumstances be justified in refusing to order the issue of aFiscal's transfer to the heirs of the purchaser, but in this instancethere is ample evidence to show that the added-defendant and hispredecessor Appuhamy did enter into possession after the sale, andhave from time to time thereafter exercised rights as co-owners andwere in point of fact recognized as such, at least, in respect of otherparts of this nindagama which they,claim to have purchased at thisvery sale.
There is therefore no good reason why this Fiscal’s transfer shouldnot have been issued.
The added-defendant has established that the title to the £ shareof this land which once belonged to the Kitulpe Nilame passed tohis predecessor Appuhamy. I therefore hold that it has beenestablished that the plaintiff is the owner of the £ which originallybelonged to Kiri Banda, and that the heirs of Appuhamy have goodtitle to £ out of the £ conveyed by Tikiri Banda and the originalPunchi Banda to Kitulpe Nilame and his wife.
From this determination it follows that the four children ofKitulpe Nilame and his wife together inherited £ of this* land or•o1* each. It appears to have been assumed that either by reasonof the predecease of their two brothers intestate and without issue,or by reason of adverse possession for the required period, PunchiBanda and Medduma Banda took this £ between them. Of thisthere is no proof. Since, however, this is the assumption upon whichthe contest between the plaintiff and the defendant proceeded, Ishall proceed to dispose of the remaining issues between them on thesame assumption. It is admitted that the .defendant has acquiredthe interests of Medduma Banda, whether those interests amountedto -i1? or to sV*
The contest relates to the interests of his brother Puuchi Banda.Both the plaintiff and the defendant hold transfers from this Punchi.Banda. A perusal of those transfers discloses the fact that to thedefendant Punchi Banda transfered the Kokmote Mudiyanselagepanguwa, and thereafter transferred to the plaintiff what remainedto him of the Kitulpe nindagama. The plaintiff and the defendantclaim that Mahadeniya which is the subject of this action fallswithin the portions assigned to each of them. The decisive factprmust be the boundary between the Kokmote Mudiyanselagepanguwa and so much of, the Kitulpe nindagama as lies to thesouth of that panguwa. This is a question of fact upon which theDistrict Judge has found. He has come to the conclusion thatthe boundary is the line A B C D marked by him on the plan 425.If this is the correct boundary, Mahadeniya is clearly not a part
( 401 )
of the Kokmote Mudiyanselage panguwa, and it is the plaintiffand not the defendant to whom the interests of Punchi' Banda,the son of Kituipe Nilame, have passed.
Now Punchi Banda through whom both the contestants maketitle is clearly indicated as the person best able to identify thisboundary. He has given evidence and has stated that the boundaryis the line A B C D. This evidence has been accepted by. theDistrict Judge, and I am not satisfied that'sufficient reason has beenshown why he should be disbelieved. But Punchi Banda*s evidenceappears to be strictly in accordance with the description of theboundaries set out in the deed under which the defendant claims.The southern boundary in that deed is given as the RukmnleInniyara and • the Kituipe nitidagatna; while the western boundaryis described as the Gansabhawa road and the Halpe Gammaima.That the position ^of the Rukmale Inniyara is the line B C D isestablished by the evidence of Punchi Banda, which on this pointis strongly corroborated by that of the surveyor. Proceedingwestward the next physical feature referred to as a boundary is theGansabhawa road, and there is such a road at the point A. Thesecircumstances indicate that the boundary between, the KokmoteMudiyanselage panguwa and the remainder of so much of theKituipe nindagama as lies to the south of it is the line A B C D.It follows therefore that the plaintiff is right in his contention thatMahadeniya does not form part of what was conveyed to thedefendant by Punchi Banda. The plaintiff is entitled to theinterests of Punchi Banda in Mahadeniya, whether those interestsamount to TV or only to
For these reasons I would affirm the judgment of the Court belowand dismiss this appeal with costs. But to save any further disputebetween the parties to this action, I would direct that the decree beamended so as to identify the particular interests which have passedto the parties to the action. The plaintiff should be decreedentitled to £ being the share which belonged to Kiri Banda and toiV being the interests of Punchi Banda, the added defendantto the share which belonged to the Kituipe Nilame, and thedefendant to the interests of Medduma Banda, which as in the caseof Punchi Banda are said to amount to and not
Bertram C.J.—1 agree.
1924.
Garvin J.
Franciscanv. Kays
Appeal dismissed.