012-NLR-NLR-V-43-LENORAHAMY-v.-ABRAHAM.pdf
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WIJEYEWARDENE J.—Lenorahamy v. Abraham.
1941Present: de Kretser and Wijeyewardene JJ.
LENOIfcAHAMY v. ABRAHAM.
6—D. C., Colombo, 935.
Partition action—Divided portion of land to be partitioned possessed by party■ pending, action for prescriptive period—Sale of divided portion—Abate-ment of action.
A party to a partition action cannot acquire a prescriptive title to adivided portion of the land during the pendency of the action to enablehim to give a valid (itle to such divided portion to a purchaser.
The interest of such party continues to be undivided against the otherparties during the pendency of the partition action.
PPEAL from a judgment of the District Judge of Colombo.
E. F. N. Gratiaen (with him J. M. Jayamaha), for defendants-appellants.
A. Rajapakse, for plaintiffs-respondents.
Cur. adv.jvult.
July 18, 1941. Wijeyewardene j.
In execution of a writ for costs due to them in D. C., Colombo, No. 30,748,the defendants seized the right, title, and interest of one Elisahamy in aland called Kahatagahalande of the extent of nearly 7£ acres. Theplaintiff, a daughter of Elisahamy, claimed undivided three-fourths oflot A described as a divided portion of 1 acre 3 roods and 3.55perches out of the land of 7£ acres mentioned earlier. Her claim was|based on a deed P 1 dated November 16, 1935, and executed by Elisahamy.On her claim being dismissed, the plaintiff instituted the present actionunder section 247 of the Civil Procedure Code. The District Judgeentered judgment declaring the interest claimed by the plaintiff notliable to be sold in execution of the defendant’s writ.
1 29 X. Ij. R. 208 at p. 210.
WIJE YE WARDENS J.—Lenorahamy v. Abraham.
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The main point for decision is the effect and scope of deed PI. Bythat deed Elisahamy conveyed to the plaintiff “undivided three-fourthpart of a divided portion of the land marked lot A called Kahatagaha-landa ” basing her title on an earlier deed of 1896. About 1909 certainparties including Elisahamy filed D. C.> Colombo, No. 26,417, against theirco-owners for the partition of the entire land of Kahatagahalanda of whichlot A is admittedly a portion. Under the preliminary decree enteredin that case Elisahamy was declared entitled to an undivided one-fourthpart and the commissioner made his return to court in 1915 submittinga scheme of partition assigning lot “ A ” to Elisahamy. Notices weretaken on various occasions between 1915 and 1921 requesting the partiesto show cause, if any, against the scheme of partition but the schemedid not come up for consideration by the court owing to the failure toserve the notices on some of the parties. In June, 1938, the third plaintiffin that action moved the court to enter an order o.f abatement undersection 402 of the Civil Procedure Code but the journal entries D1 do notshow that such an order has, in fact, been made. It will thus be seenthat the deed PI has been executed pending the action for partition.
On these facts the learned counsel for the plaintiff-respondent contendedthat the deed PI was not affected by section 17 of Ordinance No. 10 of1863 as that section dealt with alienations of undivided shares of the land.His argument may be briefly summarized as follows : —Elisahamy enteredinto possession of lot A shortly after 1913 and acquired a prescriptivetitle to it. She conveyed by deed PI certain interests in that lot.Section 17 of the Partition Ordinance renders invalid only an alienationof an undivided interest in the entire land and cannot affect an alienationin respect of a divided portion of that land title to which has been acquiredby prescriptive possession by a party to the action during the pendencyof the action.
The rights of the parties to an action must be determined as at thedate of the action. Hence the final decree to be entered in the partitioncase cannot take into account any prescriptive rights acquired by theparties pending the action. The question may also be considered in thisway. Suppose, in an action for partition, a defendant had been admittedin the sole and exclusive possession of a defined portion of the. land forseven years -at the time of the institution of the action. Suppose furtherthat defendant continues to be in possession of that lot after the institutionof that action and when the case comes up for trial it is proved that thedefendant has had possession for over ten years up to the date of trial andthat the possession was of the nature contemplated by section 3 ofOrdinance No. 22 of 1871. That defendant cannot possibly claim at thedate of trial that his lot should be excluded from the partition.
I think that, once an action for partition is filed, it is not possible for aparty to the action to acquire a prescriptive title to a defined portion ofthe land as against the other co-owners. I hold that Elisahamy’s interestsin the land continued to be undivided interests as against the otherco-owners during the pendency of the action and that she could not haveacquired a prescriptive title to lot A in 1935 when she executed PI. Itwas further argued by the Counsl for the respondent that the deedshould be read as a deed conveying “the lot that would be decreed to
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NIHILL J.—De Silva v. De Silva.
Elisahamy under the final decree ” and therefore the rights of the plaintiffshould be safeguarded to that extent. I do not think that it is possibleto give such an interpretation to the deed and moreover even such aninterpretation will not help the plaintiff in the present action (videFernando v. Atuk.ora.le'.
I do not think it is necessary to examine closely the finding of thelearned Judge that the deed was not executed by Elisahamy in fraud ofcreditors.
I would allow the appeal and direct that decree be entered declaring theproperty seized liable to be sold in execution of the writ issued by thedefendants. The defendants are entitled to the costs of the appeal andthe costs in the District Court.
de Krester J.—I agree.
Appeal allowed.