099-NLR-NLR-V-53-KARUNARATNE-Appellant-and-SIRIMALIE-R-espondent.pdf
444
GRATIAEN J.—Karunaratne v. Sirimalie
1951. Present : Rose C.J. and Gratiaen J.
KARUNARATNE, Appellant, and SIRIMALIE, RespondentS. C. 93—D. C. Kegalle, 4,334
Partition action—Investigation of title—All claimants present—Standard ofproof required.
Where, in a partition action, all possible claimants to the property are mani-festly before the Court, no higher standard of proof should be called for indetermining the question of title than in any other civil suit.
-^^.PPEAL from a judgment of the District Court, Kegalle.
H. V. Perera, K.C., with H. W. Jayewardene, for the plaintiff appellant.
N. E. Weerasooria, K.C., with C. R. Gvnaratne and W. D. Gunasehera,for the defendant respondent-
Cur. adv. vult.
November 8, 1951. Gratiaex J.—
The plaintiff and the defendant, claiming interests through a commonsource of title, are admittedly co-owners of a land called Batapandurahenain the Kegalle District in the proportions at J to | respectively. Theplaintiff has instituted this action for the partition of the property onthis basis. The only dispute between the parties relates to the extent ofthe corpus sought to be partitioned. The plaintiff’s contention is that theland consists of lots 1, 2, 3, 4 and 5 depicted in plan No. 3,116 preparedby Surveyor Aluwihare for the purposes of this action. The defendant,on the other hand, takes up the position that only lots 4 and 5 comprise thecommon property, and she claims the exclusion of lots 1, 2, and 3 fromthe proposed partition on the ground that they had for many years beenowned and possessed by her exclusively by right of paternal inheritance.
Lot 5 is rocky land unsuitable for cultivation and lots 1 and 2 are also■uncultivated. Lot 3 contains tea, rubber and coconut and other planta-tions which have admittedly been enjoyed by the defendant for manyyears. On the other hand, lot 4 was planted, mainly in tea, and possessedby the plaintiff shortly after he first acquired interests in the commonproperty in 1936. It is not of course suggested that the exclusive posses-sion of these separate allotments by the respective parties is necessarilyinconsistent with the idea of co-ownership.'
After a lengthy trial the learned District Judge upheld the defendant's■contention that lots 1, 2 and 3 should be excluded from the proposedpartition. He held in particular that on a balance of probability lot 3(which is the same as'lot 2 depicted in plan No. 1,070 prepared in 1945 bySurveyor Siriwardene) formed part of a separate property called Tennehenawhich belonged exclusively to the defendant on the basis set out in her“pleadings. The plaintiff has appealed from the learned Judge’s judgmentin so far as the partition of Batapandurahena has been ordered to be■confined to lots 4 and 5.
The point of contest between the parties is simple, but I agree with thelearned Judge when he states that the case is not an easy one to decide.
GBATIAEN J.—Karunaratne v. Sirimalie
446
In the first instance, as so frequently happens, the earlier title deeds rela-ting to the common land describe the corpus with reference to metes andbounds, which, with the passage of time, have become increasingly difficultto identify with precision. Moreover, it is apparent that most of thewitnesses who gave evidence at the trial were unable to testify withpersonal knowledge to facts or events which occurred at a time when theywere either very young or still unborn.
The burden of proving that lots 1, 2 and 3 also fell within theboundaries of the common property Batapandurahena was undoubtedlycast on the plaintiff, and I readily endorse Mi*. Weerasuriya'ssubmission that, having regard to the conclusive effect of a partitiondecree which is binding not only on the parties inter se but alsoon all the world, it is the duty of the Court to satisfy itself thatthe title of the parties is strictly proved. Vide Golagoda v. Mohideen(1937) 40 N. L. B. 92 and the earlier authorities cited in Jayawardeneon Partition at pages 72 to 82. In accordance with this principle, theCourt should not enter a partition decree unless, if I may adopt FernandoJ's phrase in Golagoda’s case, it is “ perfectly satisfied ” that the rights ofpossible claimants who are not parties to the proceedings have not been shutout accidently or by design. Subject however to this important qualifi-cation, the fact remains that a partition action is a civil proceeding, andI do not understand the authorities to suggest that, where all possibleclaimants to the property are manifestly before the Court, any higher-standard of proof should be called for in determining the question oftitle than in any other ci$il suit.
In the present case, there was ample evidence upon which a Court couldbe perfectly satisfied that no persons other than the plaintiff and the defen-dant had any outstanding claims to the allotments in dispute. The onlyoutstanding question for determination was therefore whether the plaintiffhad satisfactorily established on a balance of probability that he and thedefendant were co-owners of lots 1, 2 and 3 which, as he contends, fellwithin the boundaries of Batapandurahena and whether he had disproved-the defendant’s claim to be entitled to these allotments exclusively in herown right.
With regard to the second of these connected issues, is seems to me thatthe learned Judge has failed sufficiently to direct his mind to one importantcircumstance. The defendant, while acknowledging – co-ownership ofBatapandurahena, claimed in her pleadings the exclusion of lot 3 on theground that it formed part of a separate land called Tennehena (asdepicted in plan No. 1,070) which her father “ Kira alias Rankira ” had“ separated off ” in 1892 when his co-owners, who were the plaintiff’spredecessors in title, had sold their interests in Tennehena to a Euro-pean planter named Strong in terms of the deed Dl. This “ separatedportion ” she claims to have been transmitted to her in due course byright of paternal inheritance. It is abundantly clear that this specialdefence set up by the defendant broke down in the course of the trial.The plaintiff proved that the defendant’s father Rankira had died threeyears before the deed 1)1 was executed. There is, moreover, intriiisicevidence which indicates (1) that the " Kira ” who separated off aportion of Tennehena in 1892 was not in truth the plaintiff’s father
446
GBATIAEN J.—Karunaratne v. Sirimalie
but another person by that name who appears in the plaintiS'schain of title, and (2) that Tennehena was in any event notsituated within the boundaries of the corpus sought to be partitioned.
I appreciate that the necessary rejection of the basis on which thedefendant’s claim is founded cannot by itself conclude the main issuebetween the parties, but it is certainly a point which is material to thedetermination of that issue. -The question remains whether the plaintiffhas himself discharged the burden of proving that lots 1, 2 and 3 fallwithin the boundaries of the common land.
Admittedly the more recent conveyances in the plaintiff’s chain of title,namely, P4, P5 and P6 which were executed in 1936, 1937 and 1939 re-spectively, describe the land with reference to metes and bounds whichcatch up the allotments in dispute. But the first of these conveyances wasprepared at the instance of the witness Siriya with whom the defendant hasbeen on somewhat unfriendly terms, and one should therefore hesitate togive effect to the deeds without looking for confirmation from earlierdocuments. The clue to the problem, in my opinion, is to be found by theexamination of two earlier conveyances PI and P7, the first of which wasexecuted in 1866 and the latter in 1902. Neither document taken byitself can be regarded as conclusive, but if they be considered incombination with one another and with reference to the Surveyor’s plans,the strength of the plaintiff’s case appears to me to be irresistible.
Pi is the earliest available document of title dealing with Batapandura-hena, and is relied on by both parties. The northern and easternboundaries admittedly refer to the entire corpus, while the southernboundary is inconclusive. The western boundary is described as “ thelimit of Labuwellahena ”. It is of great importance to ascertain thelocation of Labuwellahena.
The land immediately to the west of lot 4 is admittedly the landTennehena which is the same as lot 1, depicted in the plan No. 1,710.The parties are agreed that, if the area covered by Batapandurahenais to be restricted to lots 4 and 5 only, the only legitimate conclusionto be drawn is that what was described in 1866 as “ Labuwellahena ”is in truth part of the property now designated “ Tennahena ”. Thelearned Judge thinks that this is probable, but there is no evidence tosupport so speculative a theory. On the other hand, the case for theplaintiff is that the land immediately to the west of lot 4 was alwaysknown as “ Tennehena ”, and that “ Labuwellahena ” was a correctdescription of a village holding (lying to the west of lot 3) which was manyyears ago purchased, together with a number of other small allotments,by an European planter. These allotments, according to the plaintiff,were in due course consolidated by their new purchaser, and now formpart of a large tea-and-rubber property known as Nainagala or Debath-gama Estate. If, therefore, it can be demonstrated that the land originallycalled “ Labuwellahena ” was in fact a property lying immediately tothe west of lot 3, it must follow that, at the time when P 1 was executed,lot 3 must have been properly included in the common property known asBatapandurahena. Indeed, it is only on this basis that “ Labuwellahenacould correctly be described as the western boundary of Batapandurahena.
GBATIAEN J.—Karunaratne v. Sirimalie
447
An examination of Mr. Aluwihare’s plan No. 3,116 demonstrates theforce of Mr. H. V. Perera’s argument on this point.
I now proceed to consider the deed P 7 whereby Mr. Strachan, who hadpreviously purchased a number of village holdings in the locality, soldthem as a consolidated block named Debathgama Estate in 1902. Thisestate is admittedly situated to the west and south of the corpus depictedin plan 3,116, and is described in the schedule with great detail by referenceto the boundaries of the various allotments of land which taken togethercomprise Debathgama Estate.
The eastern boundary of the allotments 8 (d) in P 7 is described asfollows: —
" East by Tennehena claimed by Sirimalie and others and H. Siriya
and others. Batapandurahena claimed by Rankira and another and
a water course ”.
It is not difficult even at the present time to locate this eastern boundaryby reference to the plans No. 3,116 and 1,070 filed of record. The northernpart of the boundary is “ Tennahena claimed by Sirimalie (i.e., presumablythe defendant) and others ”. This clearly refers to lot 1 in plan 1,070which is admittedly claimed as “ Tennehena ” by the defendant andwhich in fact is situated between lot 4 of Batapandurahena and what isnow part of Debathgama Estate.
The southern part of the eastern boundary described in P 7 is “ Bata-pandurahena claimed by Bankira (i.e., the defendant’s father) andanother (i.e., the plaintiff’s predecessor in title)”. This can onlyrefer to lot 3 of the present corpus, so that this affords cogent evidencethat lot 3 was at that time recognised both by the defendant’s fatherand by the adjoining land-owner as being situated within the boundariesof Batapandurahena. Finally, the circumstance that P 7 describes oneof the village holdings purchased by Mr. Strachan as bearing the name“ Labuwellahena ” contradicts the defendant’s suggestion that “ Labu-wellahena ” and ” Tennehena ” were one and the same property.
The facts which I have set out seem to be consistent only with thetruth of the plaintiff’s case—namely, that lot 3 is part and parcel of thecorpus sought to be partitioned. At the same time, it effectively negativesthe speculative theory (which the learned Judge adopted without referenceto the document P 7) that " Labuwellahena ” was probably an • alternativename for “ Tennehena ”.
In my opinion the judgment entered by the learned District Judgeshould be varied by ordering that lots 1, 2 and 3 depicted inMr. Aluwihare’s plan No. 3,116 filed of record should also be includedin the decree for partition. The case must now go back to the DistrictCourt of Kegalle for further proceedings under the Partition Ordinanceon this basis.
The appellant is entitled to the costs of appeal and to the costs of thecontest in the Court below. All other costs will be costs in the cause.
Rose C.J.—I agree.
Judgment varied.
34 – N. L. R. Vol.-Liii