045-SLLR-SLLR-1998-1-GNANAPANDITHEN-AND-ANOTHER-v.-BALANAYAGAM-AND-ANOTHER.pdf
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Gnanapandithen and Another v. Balanayagam and Another
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GNANAPANDITHEN AND ANOTHER
v.BALANAYAGAM AND ANOTHER
SUPREME COURTG. P. S. DE SILVA, CJ.,
ANANDACOOMARASWAMY, J. ANDBANDARANAYAKE, J.
SC APPEAL NO. 42/95CA NO. 296/92DC BADULLA NO. 62/P3RD AND 5TH MARCH, 1998
Revision – Partition decree – Conduct of parties – indicative of a collusive partitionaction – Failure of court to add an interested party – S. 69 (1) of The partitionLaw – Failure to investigate title – Miscarriage of Justice – Relevance of delayin seeking relief.
The appellants were joint executors of the last will and testament of RasammalGnanapandithen. The 2nd appellant who claimed an interest in the land whichwas the subject matter of the partition action between the plaintiff and his brotherthe defendant, sought to intetvenue in the action before judgment. This applicationwas refused by the District Judge in breach of S. 68 (1) of the Partition Law.The defendant did not file a statement of claim nor did he appear in court. Thedeeds on which title to the land in dispute was claimed by the parties had noprior registration reference. The action was filed within 2 weeks of the executionof the deed. No satisfactory evidence of title was led. Neither the vendors northeir predecessors in title gave evidence. On that material the District Judge gavejudgment and entered the interlocutory decree.
Held :
There was a total want of investigation of title. The circumstances werestrongly indicative of a collusive action. In the result, there was a mis-carriage of justice in the case, and the appellants were entitled to a revisionof the judgment of the District Judge notwithstanding delay in seeking relief,
The question whether delay is fatal to an application in revision dependson the facts and circumstances of the case. Having regard to the veryspecial and exceptional circumstances of the case the appellants wereentitled to the exercise of the revisionary powers of the Court of Appeal.
Cases referred to:
Wijeratne v. Samarakoon 71 CLW 87.
Mather v. Thamodharam Pillai 6 NLR 246.
Biso Menike v. Cyril de Alwis 1982 SLR 368.
Mariam Beebee v. Seyed Mohamed 68 NLR 36 at 38.
Somawathie v. Madawala and others (1983) 2 Sri LR 15 at 30 and 31.
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AN APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera P.C with S. Mahenthiran and A R. Surendran forpetitioners-appellants.
A K. Premadasa P.C with L S. Ponrajah and C. £ de Silva for plaintiff-respondent.T. B. Dillimuni for defendant-respondent.
Cur. adv. vult.
April 27, 1998.
P. S. DE SILVA, CJ.
This is an application in revision and restitutio in integrum filed bythe 2 petitioners who are the joint executors of the last will andtestament of Mrs. Gnanapandithen. The application was filed in theCourt of Appeal on 15. 4. 92 seeking to set aside the judgment dated17. 10. 89 and the interlocutory decree based thereon in case numberP/62 of the District Court of Badulla. The petitioners further soughtan order directing the District Court, Badulla, to add the petitionersas party defendants in the said partition action and to permit themto file a statement of claim and participate at the trial.
In the application the petitioners averred, inter alia, (a) that Mrs.Gnanapandithen died on 14. 8. 87 and that the last will was admittedto probate in the District Court of Mt. Lavinia in case No. 2295/T;
the deceased was the owner of the property sought to bepartitioned in DC Badulla case No. P/62; (c) the premises had beenleased to the Motor Service Station Ltd., and that after the expiryof the lease, the Company continued in occupation and paid rent tothe deceased and thereafter to the 2nd petitioner ; (d) unknown tothe petitioners the plaintiff had filed action against his brother thedefendant to partition the property; (e) the 2nd petitioner having cometo know that judgment was to be delivered in the said partition caseon 17. 10. 89 filed papers in the District Court of Badulla on 16. 10.89 and moved to intervene in the case; the application for interventionwas disallowed and the District Court proceeded to pronounce thejudgment on 17.10. 89; (f) the plaintiff had thereafter negotiated withthe petitioners and offered to withdraw the partition case and topurchase the land which was the subject matter of the partition actionfrom the petitioners; (g) pursuant to these negotiations the plaintiff
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deposited with the lawyers a sum of Rs. 600,000 as the purchaseprice and that the said money was still lying with the petitioners; theplaintiff, however, failed to withdraw the partition action and the actionproceeded to the stage of the final plan being prepared, but the finaldecree had not been entered; (h) there has been a complete failureon the part of the District Court to investigate the title of each partyas required by the partition law.
The application for revision and restitutio in integrum however, wasdismissed by the Court of Appeal mainly on the grounds of unduedelay (which remained unexplained) and the failure on the part of thepetitioners to establish that there was a miscarriage of justice in thepartition case or that the petitioners suffered "actual loss". The petitionershave now preferred an appeal to this court against the judgment ofthe Court of Appeal.
The first matter that arises for consideration is the validity of theorder dated 17. 10. 89 made by the District Court refusing theapplication of the 2nd petitioner “to intervene" in the partition action.The application was made by way of petition and affidavit. In thepetition dated 16. 10. 89 it was averred –
that the petitioner is a joint executor of the last will and testamentof Mrs. Gnanapandithen (the deceased);
the deceased was the owner of the subject matter of the partitionaction and the husband of the deceased had previously let thepremises to the Motor Service Station, Badulla; that the lesseecontinued to pay rent to the deceased and a photocopy of theletter in proof of the payment of the rent was annexed to thepetition;
the partition action was instituted in fraud of the rights of thedeceased, her heirs, executors and administrators claiming titleon deeds executed after the death of Mrs. Gnanapandithen. Itis accordingly necessary for the intervenient petitioner tointervene in the action to satisfy the court "on the title of thesaid deceased and if interlocutory decree is entered withoutthe title of the said property which forms the subject matter ofthis action being investigated, serious prejudice will be causedto the deceased's heirs, executors and administrators" ;
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the intervenient petitioner accordingly asked that the court bepleased to defer the delivery of the judgment until he is heardand the court is satisfied of the rights of the estate of thedeceased in the property sought to be partitioned. In the prayerthe petitioner prayed – (i) that the delivery of judgment bedeferred until the intervenient petitioner is heard, (ii) that theintervenient petitioner be granted two months' time to takenecessary steps and satisfy the court of the rights of the estateof the said deceased in and to the property sought to bepartitioned.
In regard to the above application the Court of Appeal has noted:"that there is no mention of the provisions of law under which thisapplication was made. Nor is there a specific prayer for the additionof the 2nd petitioner as a defendant in the case". It seems to methat these are not material omissions which affect the validity of theapplication made by the 2nd petitioner to intervene in the partitionaction. The reason is that there is express provision in section 69
of the Partition Law, No. 21 of 1977 which permits the court "atany time before the judgment is delivered in a partition action" to add"as a party to the action . . . any person who, claiming an interestin the land, applies to be added as a party to the action." On a readingof the petition and the affidavit it is clear that the 2nd petitioner hasset out sound and cogent grounds for intervention in the partitionaction. However, the District Court in its order dated 17.10. 89 refusingthe application for intervention has failed to give any reason what-soever for refusing the 2nd petitioner's application. In a very brieforder the District Court conclusions on the submissions made bycounsel. It is clearly an order which cannot stand a moment's scrutiny.Unfortunately, this was not a matter which received the attention ofthe Court of Appeal. I hold that the District Court was in grave errorin refusing the application. (Wijeratne v. Samarakoon,01)
Mr. Samarasekera for the petitioners-appellants submitted that thegravamen of the complaint of the petitioners was that the partitionaction itself was a collusive action. On a consideration of the materialon record, it seems to me that the following crucial matters tend tosupport the complaint of the petitioners:
(1) The plaintiff and the defendant are brothers. The plaintiff filedthe partition action on 30. 6. 88 claiming one half share of theland on Deed of Transfer 1811 dated 15. 6. 88. It is to be
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noted that the action was filed within 2 weeks of the executionof the deed.
The defendant claimed the other half share on deed No. 1814dated 19. 6. 88, that is within 4 days of the execution of thedeed in favour of the plaintiff.
In the deeds the address of the 1st vendor, the address of theplaintiff and the address of the defendant are all the same.
The deeds had no prior registration reference. The lis pendensof the action would be connected only to the folio where the2 deeds are registered. The result is that the declaration undersection 12 of the Partition Law would not reveal to court theother instruments registered under the Registration ofDocuments Ordinance.
The defendant did not file a statement of claim, nor has heappeared in court.
The report of the surveyor shows that there has been nocompliance with section 17 (2) of the Partition Law, No. 21 of1977.
Moreover, the nature of the evidence led at the trial wasaltogether unsatisfactory. The plaintiff gave evidence and stated thatthe ownership of the land had been acquired by K. P. Rajanayagamand S. Sinnasamy (the predecessors in title) "by long possession".There was no reference to 'adverse' possession nor even a claim topossession for a period of ten or more years in the evidence. Neitherof the vendors (the predecessors in title) gave evidence in regard tothe nature of their possession. No other documents were producedto establish prescriptive possession although the property wassituated in an urban area. It seems to me that this is not a casewhere the investigation of title by the trial Judge was merelyinadequate. In my opinion there was total want of investigation oftitle. Mr. Samarasekera cited several decisions which have, over theyears, emphasized the paramount duty cast on the court by the statuteitself to investigate title. It is unnecessary to repeat those decisionshere. For present purposes it would be sufficient to refer to the caseof Mather v. Thamotharam Pillai121 decided as far back as 1903, whereLayard, CJ. stated the principle in the following terms “Now, the
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question to be decided in a partition suit is not merely mattersbetween parties which may be decided in a civil action; . . . Thecourt has not only to decide the matters in which the parties are indispute, but to safeguard the interests of others who are notparties to the suit, who will be bound by a decree for partition. . . "Layard, CJ. stressed the importance of the duty cast on thecourt to satisfy itself "that the plaintiff has made out a title to the landsought to be partitioned, and that the parties before the court arethose solely entitled to such land." (emphasis added). This the trialJudge in the case before us completely failed to do. On a considerationof all the matters set out above I am satisfied that a miscarriageof justice has actually occurred in the present case. The Court ofAppeal has not addressed itself to these relevant matters which vitiatethe judgment and the interlocutory decree based thereon.
On the other hand, the Court of Appeal focused on the unduedelay on the part of the petitioners in filing the present applicationfor revision and restitutio in integrum. It is true that there was a delayof 2 1/2 years and the petitioners have also failed to avail themselvesof the right of appeal. These objections were strongly urged byMr. A. K. Premadasa for the plaintiff-respondent. Mr. Premadasafurther argued that the long period of inaction and failure to seek reliefon the part of the petitioners was fatal to an application in revisionor an application for restitutio in integrum.
According to the petitioners, shortly after judgment was enteredfor the partition of the land (one half share each to the plaintiff andthe defendant) the plaintiff negotiated with the petitioners and theirlawyers "and offered to withdraw the partition action and to purchasethe land forming the subject matter of the partition action from thepetitioners" (Para. 13 of the affidavit of the 2nd petitioner dated15. 2. 92). Pursuant to the negotiations the plaintiff deposited withMessrs. Murugesu and Neelakandan, Attorneys-at-Law a sum ofRs. 600,000/- as the purchase price. The plaintiff, however, failed towithdraw the partition action as agreed and it was only at that pointof time, the petitioners filed the present application. The plaintiff,however, denies that he ever agreed to withdraw the partition action.Mr. Premadasa stressed the fact that there was no document to provethe alleged agreement to withdraw the partition action. Mr. Premadasacontended that for 2 1/2 years the petitioners were concerned withthe sale of the land, having received Rs. 600,000/- from the plaintiff
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as "full consideration" and that they had deliberately abandoned theremedies available to them in law to challenge the order disallowingthe application for intervention, the judgment for the partition of theland and the interlocutory decree based thereon. In these circum-stances, counsel urged that the Court of Appeal rightly dismissed theapplication.
The question whether delay is fatal to an application in revisiondepends on the particular facts and circumstances of the case. Dealingwith the question of delay in relation to a writ of certiorari, SharvanandaJ. (as he then was) in Biso Menika v. Cyril de Aiwisf3) stated: "whenthe court has examined the record and is satisfied the Order com-plained of is manifestly erroneous or without jurisdiction the court wouldbe loathe to allow the mischief of the order to continue and rejectthe application simply on the ground of delay, unless there are veryextraordinary reasons to justify such rejection”, (emphasis added).The plea of undue delay relied on strongly by Mr. Premadasa hasto be considered in the light of the very special facts and circumstancesof this case. As stated earlier, there are several suspicious circum-stances strongly indicative of a collusive partition action. The refusalof the application of the petitioners for intervention in the partition actionis manifestly erroneous, considered particularly in the light of the dutyimposed by the statute on the court to ensure that the rights of personsclaiming title to the land are not placed in jeopardy by the decreesought from court. The claim of the 2nd petitioner was that the propertybelonged to the estate of a deceased person. The matter does notrest there. The judgment entered for the partition of the land is clearlycontrary to law as there has been a total failure by the courtto investigate the title of each party.
On a consideration of the proceedings in this case, I hold that therehas been a miscarriage of justice. The object of the power of revisionas stated by Sansoni CJ. in Mariam Beebee v. Seyed Mohamed4>“is the due administration of justice. . .“. In the words of Soza, J.in Somawathie v. Madawala and othersfsK "The court will not hesitateto use its revisionary powers to give relief where a miscarriage ofjustice has occurred . . . Indeed the facts of this case crv aloudfor, the intervention of this court to prevent what otherwise wouldbe a miscarriage of justice." The words underlined above are equallyapplicable to the present case. I am accordingly of the view that theCourt of Appeal was in serious error when it declined to exercise its
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revisionary powers having regard to the very special and exceptionalcircumstances of this partition case.
The appeal is accordingly allowed and the judgment of the Courtof Appeal is set aside. The judgment dated 17.10.89 of the DistrictCourt and the interlocutory decree are also set aside. The DistrictCourt is directed to add the petitioners-appellants as defendants tothe partition action, to permit them to file a statement of claim, andparticipate at the trial. In all the circumstances, I make no order forcosts.
ANANDACOOMARASWAMY, J. – I agree.
BANDARANAYAKE, J. – I agree.
Appeal allowed.