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Present: De Sampayo J. and Schneider A.J.
GALGAMUWA v. WEERASEKEEA et al.
81—D. C. Anuradhapura, 724.
Partition—Intervention after interlocutory decree for establishing a trust—
Plaintiff claiming to be an heir .of one Banda sought to partitiona land as~ against the other heirs of Banda. The respondents, afterinterlocutory decree, sought to intervene, alleging that Banda held certainshares of the land in trust for them.
Held, that the. respondents were entitled to establish the trustin this action.
rjiHE facts are set out in the judgment.
Bawa, K.C. (with him Balasingham and Groos-Dabrera), for firstdefendant, appellant.
A. St. V. Jayawardene (with him Samaraunckreme), forrespondents.
July 3, 1919. De Sampayo J.—
This appeal involves a question of procedure in a partition action.The plaintiff brought this action to partition between himself and/the six original defendants a land described in the first paragraphof the plaint. The title disclosed by him was traced to two personsnamed Loku Banda and Puncki Banda, who on June 6, 1893,obtained a Crown grant. The plaintiff and defendants are eitherheirs or purchasers under Punchi Banda, it being alleged that LokuBanda died intestate without issue and leaving his brother PunchiBanda as. the sole heir. The District Judge, after inquiry; enteredan interlocutory decree, and referred the matter of partition to aCommissioner in the usual course; but before the partition was com-pleted, and before any final decree was entered, the respondents tothis appeal came into the case and applied to intervene, and claimeda half share under somewhat peculiar circumstances. They statedthat a certain land called Walauwewatta belonging to a lady, TikiriKumarihamy, who died intestate, leaving four children, namely,Tikiri Banda, Paranagama Kumarihamy, Loku Banda, and PunchiBanda, the two last named being the predecessors in title of theplaintiff and- the original defendants. They further stated thatTikiri Banda and Paranagama Kumarihamy’s interest in that landWalauwewatta came to the intervenients by right of inheritance.
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There is no need to question the correctness of the title to the landWalauwewatta, but they go further and say that in the process ofconstruction of a certain tank and irrigation works by the Crownthe land Walauwewatta was submerged and became part of'’thetank and works so constructed, and that in consequence the Crowngranted the land now in question to Loku Banda and PunchiBanda as compensation for the benefit of all the members of thefamily. Accordingly, they say that Loku Banda and Punchi Bandaheld the land in trust for themselves as well as other members of thefamily, in accordance with the rights they had to the land Walauwe-watta. The District Judge, after hearing, the first defendant,appellant, who objected to the application, allowed the respondents-to intervene. The appeal is taken from that order, and it is con-tended that the District Judge should not have allowed -this inter-vention at all, and that the respondents should have been relegatedto a separate action for the purpose of establishing the trust andhaving their rights secured to them. In support of this contentionthe case of Silva v. Silva 1 was cited. That decision, if I may say so,is perfectly right. There, however, it was the plaintiff who had toestablish a trust in his favour under the deed by which the defendantwas vested with title. This Court, in view of the provisions of thePartition Ordinance, decided that the plaintiff not being a co-ownerat the date of- the action was not entitled to bring the action forpartition. In this case it is not a question as to whether the parti-tion action was originally rightly brought, but as to whether therespondents, who assert a right to certain interest in the land, shouldbe allowed to come in to safeguard those interests. In the decidedcase the plaintiff by being thrown out was in no way prejudicedas to his substantial rights, because he could still bring a separateaction to establish the trust and to have his share allowed him; butthese respondents, if they were not allowed to intervene' and thepartition action went on, would no longer have been able to disputethe right of the parties to the action after final decree had beenentered in this case. I can quite understand that, if the claimdepended- on any complicated questions, it would be inconvenientto have them decided in a partition action, and in such a case theproper course might be to suspend the partition proceedings untilsuch questions were determined in a separate action, but in thiscase I do not see that the question the Court has to determine isanything but simple. I think the District Judge was right in <adopting the course he did, and in allowing the intervention so asto determine the question in the same proceedings.
I would dismiss the appeal, with costs.
Schneider A.J.—I agree.
1 (1916) 19 N. L. B. 47.
GALGAMUWA v. WEERASEKERA et al