Thomas Singho v. Cornells
Present : Alles, J., and Siva Supramaniam, J.K. A. THOMAS SINGHO el al., Appellants, and
U.A. CORNELLS et al., Respondents
S. C. JlSjGS (Inly.)—D. O. Gampaha, 33-lSfP
Partition action—Interlocutory decree—Duly of slating the shares therein—Courtmust not delegate it. to a Proctor who appears for one of the parlies.
Where, in a partition action, tho sharo3 allotted to tho parties in thointerlocutory dccreo wore not in accordance with tho findings in tho judgmentand tho Court had signed a docreo which had boon tondored to it by the Proctorfor tho plaintiff without notice to tho Proctors for tho other parties—
Held, that, howevor irksome the task may bo, it is tho duty of a trial Judgoin a partition action to dotormino precisely tho sharo to which oaeh party isentitled. This is not a duty which a Judge is ontitlod to delegate to a Proctorappearing for ono of the parties. If, on tho basis of tho findings, a statementof shares is submitted by ono of tho parties for tho assistanco of tho Judgo, sucha statement should bo assonted to by all tho parties or thoir Proctors before itis accepted.
Appeal from an order of the District Court, Gampaha.
B. Wikramanayake, Q.C., with Roland de Zoysa, for tho appellants.G. de S. Wijeratne, for the plaintiff-respondent.
Cur. adv. vult.110
SIVA SUPRAMANTAM, J.—Thomas Singho v. Cornelia
November 11, 1967. Siva Supramaxiam, J.—
This was an action for partition of a pieco of land called KckunagahaKumbura, depicted as lots A-J on survey j:>lan No. 2GG dated 10thFebruary 1954, marked X. The caso for the plaintiff was that onoAbaran Kankanama was the original owner of tho land called KekunagahaKumbura in extent 9 bushels paddy sowing extent and on his deathhis four children Bachohamy, Punchappu, Andiris and Amaris becamoentitled to the said extent. Amaris died intestate and unmarried andAndiris separated off his share leaving behind tho balance extent depictedby lots A-J on plan X which was owned and possessed in equal sharesby Bachohamy and Punchappu. By deed No. 27G5 of 22.3.1S72 (P2)Bachohamy transferred an undivided 1/4 share of the whole land of 9bushels paddy sowing extent to Baronchi, Samel, Sinnochi and Juwanwho were sons of Punchappu.
Tho caso of tho contesting defendants was that the said Baronchi,Samel, Sinnochi and Juwan became entitled to 1/2 share of lots A-J ondeed P2 and inherited tho balance 1/2 sharo from Punchappu and werothus tho owners of the land depicted on Plan X. In or about tho year1930 the land was amicably partitioned among tho co-owners and wasthereafter possessed dividodly as follows :—Lot A by Sinnochi and hissuccessors in title, lots B, C, D, E and F by Baronchi and his successorsin title, lots Ct, II and I by Juwan and his successors in titlo and lot Jby Samel and his successors in titlo. They denied that the plaintiffwas entitled to any share in the land and prayed for a dismissal of thoaction.
Tho trial Judgo has held that in addition to the aforesaid four sonsPunchappu had two daughters, Nonohamy and Babahamy who alsoinherited a sharo from Punchappu and dealt with that share by deedNo. 57S2 of 30.1.1S92 (P17). He has further held that tho partieswere in possession of divided lots for tho sako of convenience and notin consoqucnco of an amicable partition of tho land and that an actionby one of tho co-owners of the land for a partition of the said land ismaintainable. They arc both questions of fact and I do not sco sufficientreason to interfere with thoso findings.
Tho only other matter canvassed in appeal was whether tho plaintiffacquired any interests in the land on deed No. 52S7 dated 2nd July1952 (Pi) which was executed in his favour by ono Arnolis who claimedto bo a successor in titlo of Bachohamy. Tho plaintiff did not givoevidence but called as his witness his brother Lr. A. Picris Singho, tho13th defendant. According to Picris Singho, after Bachohamy hadtransferred 1/4 share of tlie whole land by deedP2, Amarisdied intestatoand unmarried leaving as his heirs Bachohamy, Punchappu and Andiris.
Ho stated that ho had obtained tho information in regard to the dato oftho dcatli of Amaris from one Mclis but Hell's was not called as a witnessthough he was said to bo in the village. If that evidence was accepted,Bachohamy’s interests would havo been 1/12 share of tho whole land.
SIVA SUPRAMAXIAM, J.—Thomas Singho v. Cornelia111
The position set out in the plaint, however, was that deed P2 conveyedto the transferees an undivided 3/S sharo of lots A-J though it purportedto convey 1 /4 share of the entirety and that Bachohamy was still ent itledto an undivided 1/S sharo. The learned trial Judge, on the other hand,has assumed in his judgmc mat Bachohamy was entitled to 1/4-sharoafter the execution of deed P2, and has, in his answer to tho issues, heldthat tho plaintiff is entitled to 1/4 share on PI.
According to the plaint-ill’s case, Bachohamy’s balance sharo devolvedon her son Samel, and on his death it devolved on Peter, an only childof Samel. On Peter’s death that share devolved on his only son Arnoliswho transferred that sharo to the plaintiff on deed PI. Tho trial Judgehas rejected the evidence that Peter was the only child of Samel and thatArnolis was the only child of Peter. According to Ruithan, the ISthdefendant, who is another brother of tho plaintiff and who was alsocalled as a witness by the plaintiff, both Peter and Arnolis have severalbrothers and sisters. If so, Arnolis would have been entitled to a verymuch smaller share than 1/S or even 1/12. Alone of the brothers andsisters either of Peter or of Arnolis appear to have claimed any shareof the land in question through Bachohamy. They have not even beenmade parties to this action.
It is the plaintiff’s case that Andiris separated off 4 bushels paddysowing extent as his share and it is the remaining extent (representedby lots A-J on Plan X) that was possessed by Bachohamy and Punchappu.There is no admissible evidence as to when tho separation took place.If it took place before the death of Amaris, Andiris would have beenentitled only to 2 1/4 bushels paddy sowing extent, and if after tho deathof Amaris, to 3 bushels paddy sowing extent. In either case, it seemsunlikely that 4 bushels paddy sowing extent, which was nearly ono halfof the whole land, would have been permitted to bo separated off asthe share of Andiris by the other co-owners. It is more probable thatwhat was separated oif represented tho shares of Andiris and Amarisand not that of Andiris only and that the separation took place beforethe death of Amaris and tho balance extent (represented by lots A-Jin Plan X) was joossessed by Bachohamj' and Punchappu. If so, whenBachohamy transferred 1/4 share of tho whole land of 9 bushels paddysowing extent by P2 she dealt with 1/2 share of lots A-J and thusexhausted her interests in the land sought to be partitioned.
The evidence led does not show that Bachohamy thereafter claimedany interests in the said land. That would explain why nono of thebrothers and sisters of Peter or Arnolis have claimed any interests.The deed of transfer PI which the plaintiff obtained from Arnolisappears to have been a speculative one.
The trial Judge himself characterised tho evidence on which theplaintiff based his claim for 1/8 share on PI through Bachohamy as“ meagre and not quite satisfactory ”, but he proceeded to hold that theplaintiff would have got “ some rights ” on deed PI without determining
SIVA SUPRAM.ANTAM, J.—Thomas Singho v. Cornelia
precisely what thoso rights were. In the answer to the issues, however,ho held that the plaintiff was entitled to 1/4 sharo on PI, although thatwas not tho plaintiff’s caso. In a partition action, before an3r partycan invito tho Court to hold that ho is entitled to any share, he shouldsatisfy the Court by cogent, acceptable evidence that he is entitled tosuch sharo. If, on the evidence led, tho Court is unablo to determinotho prcciso sharo to which a party is entitled, it should reject thatparty’s claim. A finding that a party is entitled to " somo rights "is not a proper finding in a partition action. On the evidence led, tholearned Judge should have rejected tho plaintiff’s claim to any sharobased on deed PI.
Learned Counsel for tho appellants also complained that the sharesallotted to tho parties in tho Interlocutory dccrco arc not in accordancowith tho findings in the judgment and that the learned Judge had signeda decree which had been tendered to Court by the Proctor for tho plaiirtiffwithout notice to the Proctors for the other parties. However irksomethe task may bo, it is tho duty of a trial Judge in a'partition action todetermine precisely the share to which each party is entitled. This isnot a duty which a Judge is entitled to delegate to a Proctor for oneof tho parties. If, on the basis of tho findings, a statement of shares issubmitted by one of tho parties for tho assistance of the Judge, such astatement should bo assented to by all tho parties or their Proctorsbefore it is accepted. As was observed by T. S. Fernando S.P.J.,in Wijesundera v. Ilerath Appuhcimy and others x, “ tho submission of
such a statement cannotmake any difference to the duty
of the Judge to satisfy himself that the statement of shares is inconformity with the judgment already pronounced ”.
I set aside tho interlocutory dccrco as well as the findings in thejudgment relating to the share which tho plaintiff claimed on deed Pi.Tho remaining findings in tho judgment arc affirmed. There shouldbe a computation by tho Court of the shares to which each party isentitled on tho basis of tho said findings, and- on tho footing thatBachohamy exhausted her interests in the corpus when she executeddeed P2. Let a fresh interlocutory decree for partition bo enteredallotting to each party the share in accordanco with such computation.Tho costs in tho trial Court will bo as already determined by the learnedJudge.
Tho appellants will bo entitled to half their costs in appeal.
Alles, J.— I agreo.
Case sent back for further proceedings.l(19G4) G7 C. L. V. G3 at p. C4.
K. A. THOMAS SINGHO et al., Appellants, and U. A. CORNELIS et al., Respondents