Gunatillake v. Silva
1974Present: Walganpaya, J., Ismail, J. and
M. A. P. GUNATILLAKE, .Petitionerand
M. MURIEL SILVA and 7 OTHERS, Respondents
S. C. 367/68— Application for Revision in D. C. Kalutara, 2204/P
Partition action—Application for intervention—Jurisdiction of AppellateCourt invoked by a party not a defendant and who made noapplication in the original Court—Interlocutory decree alreadyentered—Circumstances in which such application can bemaintained—Partition Act, section 70(1).
Partition Act, sections 25, 48, 49—Duty of Court to investigate title ofparties—Addition of necessary parties—Effect of interlocutorydecree being entered without proper investigation.
Held (Vythialingam, J. dissenting) :
That a party who is not a defendant in a partition actionand who had made no application to intervene in theDistrict Court, can in certain exceptional circumstances comebefore the appellate Cou t after entering of the interlocutorydecree, either by way of revision or by way of an applicationin restitutio and ask for relief in instances where the DistrictCourt is made aware of the fact that such petitioner was a personwho should properly have been added under section 70(1) of thePartition Act before decree was entered. Once the Court had beenmade aware of this fact it was its duty to add such petitioner as anarty as we!' as the others disclosed along with him as having claimsto the property ; and the mere fact that the person who disclosed theirexistence withdrew his application for intervention in the DistrictCourt is not a matter that should make the Court desist from actingos indicated under section 70(1).
That further, it is the duty of the Court in a partition actionunder section 25 of the Partition Act to investigate the title ofparties. In the present case the Court had signally failed to investi-gate title of the parties before Court or to pay attention to theclaims of the parties disclosed as having claims or rights in theproperty. The interlocutory decree therefore having been enteredwithout proper investigation cf title and without addition of
• c.-eessary parties of whom existence the Court had been made aware,mould be set aside.
Per Vytkiamngam, J. dissenting : “ A stranger to a partition actioncannot move the Supreme Court in revision to set aside an inter-locutory decree which had air each' b=r-> entered on the groundthat his claim has not been investigated or or. the ground thatthe title of the parties to the action had not been adequately investi-gated because if there has been an investigation of title eventhough it is inadequate the deceree is final and conclusive. It isonly where there is an appeal in a partition action that the decreecan be set aside on the ground that there has been no proper investi-gation of title and when hearing an appeal the appellate Courthas power to so act even by way of revision if the investigation oftitle had been inadequate. Where there has been no appeal thein .erocutory decree zs made final and conclusive."
I*—.*, fesei (mtsd)
ISMAIL,J.—QunatUlalce v. Silva
Cases referred to :
Fernando v. Marshall Appu, 23 N.LR. 370; Cey. L. Rec. 50.Jnyawardena v. Weerasekera, 4 C.W.R. 406.
Gooneratn&v. Bishop of Colombo, 32 N.L.R. 337 ; 8 Times of Cey.L.R. 153.
XJmma Shsefa v. Colombo Municipal Council. 36 N.L.R. 38.Menchinahamy v. Muniweera, 52 N.L.R. 409.
Adamjee v. Sadeen, 58 N.L.R. 217 ; 54 C.L.W. 58 (P.C.).
Cooray v. Wijesuriya, 62 N.L.R. 158.
Juliana Hamine v. Don Thomas, 59 N.L.R. 546.
Mariam Beebee v. Mohamed, 68 N.L.R. 361 (D.B.).
Rasah v. Thambipillai, 68 N.L.R. 145 (D.B.).
Amarasuriya Estates Ltd. v. Ratnayake, 59 N.L.R. 476.
Odiris Appuhamy v. Carolis Perera, 66 N.L.R. 241.
Noris v. Charles, 63 N.L.R. 501.
Nonnohamy v. Odiris Appu, 68 N. L. R. 385 (D.B.).
Ariyaratne v. Lapie, 76 N.L.R. 221.
Podisingho v. Ratnaweera, 62 N.L.R. 572.
Wijeratne v. Samarakoon, 71 C.L.W. 87.
Leelamathie v. Weeraman, 68 N.L.R. 313 (D.B.).
Siriwardena v. Jausumana, 59 N.L.R. 400 ; 55 C.L.W. 98.
Vkku v. Sidoris, 59 N.L.R. 90.
Siriya v. Ainalee, 60 N.L.R. 269.
Perera v. Aron Singho & others, 64 C.L.W. 13.
Cathirina V. Jamis, 73 N.L.R. 49.
Suraweera v. Jayasena, 76 N.L.R. 413.
APPLICATION to revise a Judgment of the District Court,.Kalutara-
Sam Silva, £or the petitioner.
N.S. A. Goonetilleke, for the plaintiff-respondent.
St. N. D. Tillekeratne, for the 5th, 6th and 14th to 16thdefendant-respondents.
Cttr. adv. vult.
July 8, 1974. Ismail, J.
The plaint in this case had been filed on the 31st December1955. There was only one defendant to this action. Thereafter onreturn of commission issued in this case 16 claimants have beendisclosed and they had been added as 2nd to 17th defendants on23.6.66. Summons thereafter had been ordered and issued onthese additional defendants and ultimately statements of claimhad been filed by 3rd, 4th, 12th and 14th defendants, by the 1stdefendant on 12.3.67, and by the 17th defendant on 27.11.67 ;thereafter the matter had been fixed for trial for 25.3.68. Onthat day after trial, judgment had been fixed for 8.4.68.
On 31.3.68 before delivery of judgment one Tillakamuni LilyGunasekera had intervened in the action and filed a statementof nlaJrm and she had. been added as defendant. The statement
ISMAIL, J.—OunatiUake V. SHva
of claim of iiie 18th defendant disclosed in a list at the end11 parties of whom the 9th party disclosed ft the presentpetitioner, Mahadurage Allen Perera Gunatillake.
It would also be seen that on the 31.3-68 itself the intervenientLily Gunasekera had been made a defendant to the action andher intervention had been accepted. Paragraph (C) under journalentry 26 of 31.3.68 states, “Judgment due on 8.4.68, be postponeduntil her application to intervene and prove her rights isinquired into ” and paragraph (D) reads “ Her statement of claimand pedigree filed be accepted and this matter to be fixed forinquiry It is also noted that proctors who appeared forplaintiff and some of the other defendants had objected to thisand order had been made to mention this matter of theintervention on 8.4.68.
On 8.4.68, the day on which judgment was due certain proceed-ings had taken place. It would appear that the allegation has beenmade that the application for intervention had been made with aview to drag on this case as certain parties were exclusivelyenjoying the produce of the land and with a view to finishingoff the case the plaintiff had indicated his willingness to give outof his share a i shrre to M/s. Wijemanne & Cooray’s clients asclaimed in Mr. Wijemanne’s statement of claim.
Mr. Wijemanne had thereupon stated that he did not agree tothis as there were several other parties v)ho were entitled tointervene and whom he had disclosed in his statement of claim.It is to be noted that the present petitioner is one of the partieswho had been disclosed in that statement of claim. The Judgehad thereupon made a minute that as Mr. Wijemanne did notagree to take this share of land he was obliged to concede theright to Mr. Wijemanne’s clients to go on with their statementsof claim as they preferred to accept a judgment of Court. There-after an order for pre-payment of costs had been made and thematter was to be called on 5.6.68.
On 5.6 68 of consent the intervention had been dismissed. Theintervenient had thereafter been added as the 18th defendant,which steps appear to be unnecessary in view of journal entry26 by which she had already been added, and thereafter thefollowing concessions appears to have been made to the 18thdefendant, to reproduce the words, “Out of plaintiff’s interests1/6 of 13/16 be allotted to the 18th defendant. ”
It will therefore be seen that the 18th defendant has beenallotted 130/950 shares. Now according to the statement of claimfiled by the 18th defendant she has indicated that Catherine Silvawho has also been referred to in the plaint was entitled to a
48(4ISMAIL, j.—Qiuxatiilake v. Silva
9 share. She died leaving her husband and 5 brothers andsisters, whereby eac*a brother became entitled to 1/30 shares.The 18th defendant in the claim had stated that she claimsthrough Peter* one of the brothers of Catherine Silva. Peteris therefore entitled to >/30 shares. Peter died leaving hiswidow Baby Miranda who became entitled to 1/60 shares and8 children including the intervement—18th defendant and eachchild became entitled to 1/480 shares or 2/960 shares. Therefore,it is apparent that the 18th defendant had come into Court on thebasis that she was entitled to 1/480 shares but by virtuesettlement she has been given 130/960 shares which ismore than 65 times the shares she has asked for. Therefore,there can be no doubt that the 18th defendant had been givenvery much more than she had asked for in order to induceher to withdraw this intervention and apparently for no otherreason. It is clear from the proceedings in ttiis case, that there hadbeen no investigation of title in respect of the claim of the 18thdefendant. It is also apparent that the investigation of the rightsof other parties disclosed in this statement of claim of the 18thdefendant has not been adjudicated upon, though the originalCourt entry under journal entry No. 26 indicated that thisstatement of claim would be inquired into.
The haste with which the plaintiffs have acted in this case inconceding 65 times of what had been asked for by the 18thdefendant in order to withdraw the intervention should havemade Court to act cautiously. Under sectoin 25 of the PartitionAct, it is incumbent upon the Court to examine the title ofeach party and hear and receive evidence in support thereofand try and determine all questions of law and fact arising inthat action with regard to the right, share, or interest of eachparty. Court on entering of interlocu.orv decree of the judgmentstamps the title of each party with legality, authenticity andfinality. It is precisely for these reasons that section 25 of thePartition Act had cast the duty upon Court to examine the titleof each party carefully.
It is to be noted that according to the plaintiffs in this case,the plaintiffs derived title to a major portion of the shares theyclaim through Catherine Silva. In paragraph 7 it is averred thatCharles de Silva by deed of gift No. 485 of 17.7.1929 had giftedcertain rights to this Catherine Silva and these rights had passedon deed 4523 of 1953 produced marked P3. Reference to deedmarked P3 indicates that there is no deed of gift by which thevendors had derived ti le bearing No. 485 of 1929 nor is thereany other deed of gift. However there is reference to a deedof transfer No. 486 of 1929 and to deed No. 120 of 1939. Neitherhas deed No. 485 nor deed No. 486 been produced in this case,
1SMAIT,., J.—GunaiiBaJce v. Silva
though it would have been the simplest matter for the plaintiffsto have produced certified copies of these deeds‘from the Land
Registry or to produce the relevant extracts of encumbrances.
I also find that reference to the schedule of fands dealt within deed P3 compared with the lands in the schedule to the plaintindicate certain doubts with regard to the identities of thoselands in regard to the names, extents and boundaries. For instanceschedule ‘ C ’ to the plaint indicates the land bearing assessmentNo. 53/1, whereas the schedule in P3 deals with two lands bear-ing No. 58/1 but it does not deal with any land bearing No. 53/1.Now the land in the plaint bearing No. 53/1 is said to be inextent 2 roods. Then land No. 4 and land No. 3, according to P3are the two lands which are said to have been dealt with bydeed of transfer 486 of 1929. These two lands are said to be inextent 1 rood 2 perches and 1 rood respectively. Similarly, evenwith regard to the boundaries indicated in P3 when one comparesthem with the boundaries of the lands indicated in the scheduleof the plaint it is apparent that these two sets of lands do nottally according to boundaries.
Examination of title would therefore have been imperativein order to determine whether the plaintiffs had the rights theyclaimed in these lands and whether they have enough rights tohave given the 18th defendant so much more than what shehas asked for in the intervention.
No conceivable reason has been adduced either in the plaintor in the proceedings why deed of gift 845 of 17.7.1929 referredto in paragraph 7 of the plaint or deed of transfer 486 of 17.7.1929referred to in P3 have not been produced in thiscase or as to why the relevant certified extracts from theRegister of encumbrances have not been produced. Therefore,the question does arise, in considering the rights of parties inthis case whether the plaintiff had rights or sufficient interestsin the land as claimed by them, for them to have conceded130/960 shares to the 18th defendant, when the 18th defendanthad really asked for herself only 1/480 shares.
It would therefore be seen that the plaintiffs’ title in this caseis suspect because of the non-production of deed of gift 485 of17.7.1929 pleaded in the plaint and/or non-producing of deedof transfer 486 of 17.7.1929 referred to in P3, one is left to wonderwhether the transferor on P3 had any title to convey to thetransferee on P3. Therefore, it appears to me that vital link inthe chain of .title depended upon by the plaintiff is missing withthe result, it is my opinion, that the plaintiffs cannot be saidto have proved title to the shares they claimed.
1*»—A +8361 <80/03)
13 jXAI-L, J.—Qunatillake v. Silva
Another noticeable feature in this case is that this settlementby which the intervention had been arrived at was on 5.6.68,judgment had been delivered on 6.6.68, interlocutory decree hadbeen tendered* on 7.6.63 and had been signed by the learnedDistrict Judge on 11.6.68: Therefore it is obvious, when oneconsiders the speed at which these various steps have beenattended to, that the parties disclosed in the intervention hadpractically no time to come into Court and state their claims onthe basis of the intervention filed in this case.
Attention of Court was drawn to section 49 of the Partition Actindicating that a party who is affected by entering of an inter-locutory decree under circumstances similar to this would havethe right to bring an action for damages. The facts in this presentcase however indicate that the existence of the present petitionerand 11 others alleged to have rights in this land have beendisclosed to Court and to the plaintiff. Thereafter neither theplaintiff nor the Court had evinced the slighest interest ininvestigating and finding out whether this present petitioner andother disclosed parties had any rights to this land on the basis©f rights indicated in the intervention filed by the 18th defendant.The 18th defendant had claimed rights precisely from the samesource as the rights indicated by the present petitioner.
The plaintiff purposefully out of his own rights had given the18th defendant a very much larger share then she claimed. Itxhust necessarily follow that the present petitioner too wouldtherefore have been entitled to rights though not a party to theaction at that stage, claiming as she does from the same source.A proper investigation of title should have revealed if the18th defendant was entitled to rights, and presumably it is onthat basis that the plaintiffs had volunteered to give from whatthey say are their rights to the 18th defendant ; if the 18thdefendant did not have rights, one cannot conceive of theplaintiffs being so charitable as to give the 18th defendantseveral times more than what she had asked for in theintervention.
It is also necessary to draw attention to the provisions ofsection 70 of the Partition Act. Section 70 sub-section (1) reads,“the Court may at any time before interlocutory decree isentered in a partition action add as a party to the action, onsuch terms as to payment or pre-payment of costs as the Courtmay order—
any person who, in the opinion of the Court, should be,shouid have been, made a party to the action, or
ISMAIL, J.—GuncUillaice v. Silva
any person who, claiming an interest in the land, appliesto be added as a party to the action.”
It appears to me from the facts of this case, if* the Court hadbeen diligent about this matter, this*was a proper case wherethe Court should have proceeded to act under section 70sub-section (1) (a), particularly, in the sense, the conscience ofthe Court should have been aroused when the plaimiff had actedso munificiently in giving the 18th defendant several times morethan what she had asked for in order to enable her to withdrawher intervention, the effect of which was to shut out otherparties who are indicated in that intervention as having rights tothis land.
The question that now arises for determination is whether aparty who is not a defendant to a partition action can at thisstage, that is after interlocutory decree has been entered, comeinto the case and ask for relief, namely that the proceedingsincluding interlocutory decree be set aside and the party beallowed to intervene or whether such a party since theinterlocutory decree has been entered is left -qpithout remedyin the action itself.
In the case reported in 52 N.L.R. page 409 at page 415 occursthe following passage: —
“ The situation which emerges in the present case is thatSaineris was a party. He died before the trial without stepshaving been taken to substitute his heirs who were, therefore,not bound by all the subsequent proceedings. In giving reliefto the petitioner we are not sitting in judgment either onthe interlocutory decree or on the decree in appeal passedby this Court. We are merely declaring that, so far as thepetitioner is concerned, there has been a violation of theprinciples of natural justice which makes it incumbent onthis Court, despite technical objections to the contrary, todo justice.
In my opinion, therefore, the order of this Court shouldbe that the petitioner and the other heirs of Saineris shouldbe forthwith added as parties' to this action, and that aftershe has filed her statement of claim, the District Judgeshould proceed to adjudicate on the merits of her application.It will also be the duty of the plaintiff to see that all thenecessary parties are before the Court before any furtheradjudication is made. I would go further and say that in viewof the irregularity in not joining Saineris’ heirs, in myopinion both the interlocutory decree in this action and the
ISMAIL, J.-—Uunatillake v. Silva
subsequent judgment of this Court in appeal are of no effect*because by* reason of the non-observance of the steps in-procedure no proper interlocutory decree was. in fact,entered in this case.”
In this reported case, the facts indicate that the intervenienthad disclosed the name of another necessary party, one N. Infact that party was dead on the date. This fact was brought tothe notice of Court and notices were issued on N’s heirs to beadded in her place. Court issued an order nisi on N’s son S andfour other children of N to show cause why they should notbe added. The order nisi was reported served and on thereturnable date, they being absent, the Court entered orderabsolute. Subsequently S died, but no steps were taken to havehis heirs, namely his widow and the children substituted in hisplace. The case proceeded to trial and entered interlocutorydecree which was upheld by the Supreme Court in appeal.
Therefore the heirs of S moved the Supreme Court by way ofrestitutio in integrum. It was held that the interlocutory decreewas irregularly entered and the case should be sent back for S’sheirs to be added and for investigation of the claims of S andthe children of N. Therefore it is apparent that though thepetitioner in this reported case and the other heirs were notparties to the action at the time of the interlocutory decree,nevertheless their application by way of restitutio in integrumhad been allowed by the Supreme Court.
The case reported in 58 N.L.R. at page 217 considered theconclusive effect of section 9 of the Partition Ordinance whenthe decree was being considered in a separate case and not inthe same case. In the course of the judgment it was held, that iton an appeal in a partition action it appears to the Court ofAppeal that the investigation of title has been defective it shouldset aside the decree and make an order for proper investigation.It was further held tfiiat where it appears to the Supreme Courtin an appeal in a partition action that the investigation of titlehas been inadequate, it should, even though no party before ithas raised the point, set aside the decree acting under its powersof revision.
In the case reported in 62 N.L.R. at page 158, the Courtconsidered, the effect of section 25 of the Partition Act. It washeld that section 25 of the Partition Act imposes on the Courtthe obligation to examine carefully the title of each party tothe action. Before the Court can accept as correct a share whichis stated in a deed to belong to the vendor there must be clearand unequivocal proof of how the vendor became entitled tothat share.
ISMALL, J.—GvnaiiUake v. Silva
In the case reported in 68 N.L.R. at page 36, it was held thatsection 48 of the Partition Act does not preclude the SupremeCourt from exercising its powers of revision in an appropriatecase in respect of an interlocutory or final dec^e entered in apartition action. The power of revision is an extraordinarypower which is quite independent of and distinct fom theappellate jurisdiction of the Supreme Court.
In the case reported in 59 NL..R. at page 546, the effect ofsection 25 of the Partition Act was again considered.It was held that this section makes it obligatory on the Courtto scrutinise, quite independently of what the parties may or maynot do, the title of each party before any share is allotted to him.Where a party fails to produce his material documents of title,or omits to prove his title, the procedure prescribed in section 20and 61 of the Act should be followed.
The case reported in 71 Ceylon Law Weekly at page 87 hasrelevance to the facts of the present case. The facts in thatcase indicated that the party had sought to intervene in thataction after judgment but before interlocutory decree wasentered. But, the judge had rejected the intervention and there-after that party had appealed from the order of the DistrictCourt. It was held that the party had the status to intervene inthe action as the interlocutory decree had not yet been enteredin that case. The ratio decidendi in that case was that therewas however another reason for setting aside the decree, “ TheCourt was possessed of the fact during the hearing of the action,even before judgment was delivered, that the appellant hadclaimed a servitude of a right of way over the land sought tobe partitioned. In this situation it was the obvious duty of theCourt, having regard to the provisions of section 70 of thePartition Act, and the conclusive effect of the interlocutorydecree, to adjourn the hearing in order to give the appellantan opportunity of applying to be added as a party, if she decidedto avail herself of that course of action ; this the Court omittedto do. In the result, the appeal is allowed and the record willgo back to the Court of first instance for the appellant’s claimto be heard and determined. ”
When one considers this reported case with the facts of thepresent case, it will be seen that the appellant was not a party-defendant to the action but Court was aware of the fact thatthe party concerned was ostensibly entitled to certain rightsor at least that the party had a claim to certain rights fromthe corpus. The Court had not proceeded to add this party asa party defendant to the action and had proceeded to enter
ISMAIL, J.—Qunatillake v. Silva
interlocutory decree without investigating the claims of thisparty whose existence the Court had been made aware of, andthe existence of certain rights claimed by the party had beenbrought to the ftotice of Court.
The case reported in 68 N.L.R. at page 145 can be distinguishedfrom the facts of the present case because the Court in thispresent case has been made aware of the fact that the presentpetitioner and several other parties were indicated as havingrights to this property before interlocutory decree was enteredin this case and before judgment. Therefore, it appears to meeven if the 18th defendant was not inclined to go on with theintervention by reason of the fact that she herself had benefitedmuch more than she was entitled to on the basis of her claimnevertheless it appears to me that it was the duty of Court tohave investigated into the title of the parties disclosed by the18th defendant intervenient.
In the case reported in 59 N.L.R. at page 476, after interlocutorydecree was entered, the petitioner which was a limited liabilityCompany sought to intervene because the land described in theschedule to the plaint and the interlocutory decree was differentfrom, although adjacent to, the land depicted in the plan preparedby this surveyor, to whom the commission has been issued bythat Court. The company was not a party to the partition actionand it was only after the decree had been entered that it becameaware that the land depicted in the Commissioner’s plaint hadbeen surveyed for the purposes of the action as that describedin the schedule. It was held in revision that the interlocutorydecree should be set aside and the trial Court should be directedto add the petitioner as a party and proceed with the action. Itwill be noted that this partition action had been brought underPartition Act No. 16 of 1951.
From that reported case, it would be seen that the petitionerwho filed papers in revision was not a party to the action and wasnot even an intervenient before interlocutory decree. Neverthe-less the Supreme Court acting in revision on an application madeby that petitioner had made order to set aside the interlocutorydecree and add the petitioner as a defendant and proceed onwith the action.
On perusing the various authorities to which I have madereference it will be seen that a party who is not a defendantto a partition action can in certain exceptional instances comeinto this Court either by way of revision or by application forrestitutio and ask for relief in instances where the Court is made
ISMAIL, J.— OunaiUlake a. Silva
aware of the fact that such petitioner was a person who shouldproperly have been added under section 70 (1) "of the PartitionAct before decree was entered. In the instant case the Courtwas made aware of the fact that the petitioner *in this case wasa person who was said to have a claim to this property. OnceCourt is made aware of this fact it appears to me that it wasthe duty of the Court to have proceeded to add this party aswell as the others who were disclosed along with this party ashaving certain claims to this property. The mere fact that theparty who disclosed the mere existence of the present petitionerand certain other parties withdrew the intervention for certainreasons is not a matter that should desist the Court from actingin the manner indicated under section 70 (1).
It is again the duty of the Court under section 25, to investigatethe title of parties. In the present case, it is my opinion thatthe Court has signally failed either to investigate the title ofthe parties who were before Court or to pay any attention toclaims of parties or rights of parties who were indicated as havingcertain claims or rights in this property.
In these circumstances, it is my opinion that the interlocutorydecree in this case has been entered without proper investigationof title and without addition of necessary parties claiming rightsto this property, of whose existence the Court has been madeaware of. Therefore, I am of the opinion that the interlocutorydecree in this case should be set aside and thatt the petitionerand other parties indicated in the claim of the 18th defendantshould be added as party-defendants to this action under section70 (1) and their claims in this case must be investigated andthe trial should be proceeded with from that stage.
I accordingly set aside the judgment and interlocutory decreeentered in this case and remit the case for further trial as orderedabove. I award the petitioner costs in Rs. 210 against the plaintiff.
Walgampaya, J.—I agree.
V YVHIALTNGAM, J.
I regret very much that it is not possible for me to agree.
This is an application in revision to set aside the interlocutorydecree for partition entered in this case and to order a new trialso that the interests of the petitioner may be allotted to him.The case proceeded to trial on 25.3.68 when evidence wasrecorded and judgment was reserved for 8.4.1968. On 31.3.1958
V YTHIAL1NGAM, J.—Ganatillake v. Silva
«n intervenient Lily Gunasekera filed papers for intervention•and in view of* tins, judgment was not delivered on 8.4.68. Onthat day, Counsel for the plaintiff stated that the applicationwas being mad£ to prolong these proceedings on behalf ofcertain persons who were'in possession and in order to preventthat, he said, the plaintiff was willing to give a share to theintervenient out of plaintiff’s one third share, proved at thetrial.
But proctor for the intervenient did not- agree as according tothe claim of the intervenient there were several other partieswho were entitled to intervene and the matter was fixed for5.6.68 for the consideration of the claim of the intervenient oncertain terms. On that date, however, a settlement wasapparently arrived at and it is recorded as follows : “ Of con-sent, intervention dismissed. Add Lily Gunasekera as 18thdefendant. W. & C. for her. Out of plaintiff’s interest 1/6of 13/16 (13/96) be allotted to the 18th defendant. Judgment6.6.1968. ” On 6.6.1968 judgment was delivered allotting, inferalia, 130/960 shares to the 18th defendant. Interlocutory decreewas tendered on the following day and was signed by the Judgeon 11.6.1968.
The present petitioner filed papers in revision in this Courton 20.7.1968. He states that he was disclosed in the petition ofLily Gunasekera and that since she was added as a party defen-dant in that case it was incumbent on the plaintiff to have addedhim and the other persons disclosed by her as parties and tohave issued summons on them in terms of sectioh 22 (1) (b) ofthe Partition Apt. He states that he was resident in Colombofor a long period and was unaware of the' entering of theinterlocutory decree. The petitioner is the cousin of Lily Guna-sekera, who claimed to be entitled to shares from one CatherineSilva. This Catherine Silva appears in the plaintiff’s evidenceand is so referred to in the petition of Lily Gunasekera.According to plaintiff, one Charles also transferred a J shareof the land B in the schedule to the plaint on deed No. 485 of17.7.1929 (P 2) to Catherine Silva. Charles also transferred toone Rosa Regina a J share of the land C in the schedule tot^e plaint on deed No. 403 of 17.4.1913 (P 1). Both CatherineSilva and Rosa Regina are alleged to have transferred theirrights to Vincent Perera but this deed was not produced. There-after Vincent Perera transferred his "ights along with Rosaftegina and her daughter Mary Theresa by deed No. 4523 of16 5.1953 (P 3) to Paula Silva who was entitled to other interests^also and they devolved as set out in the evidence of theplaintiff.
VYTHIAUNGAM, J.—Gunatillake v. Silva
v Thus, according to the plaintiff’s evidence, the entire interestsof Catherine Silva had passed to others. Lily *Gunasekera in■her statement of claim admitted that Catherine Silva wasentitled to a one third share. But according to Tier, CatherineSilva was married to one Linton Sctysa. She died leaving herhusband who became entitled to a 1/6 share and five brothersand sisters each of whom became entitled to a 1/30 share.The transfer to M. Vincent Perera by Linton Soysa was sheaverred only in respect of his 1/6 share and did not affect theother 1/6 share which devolved on the brothers and sistersof Catherine Silva.
It is this 1/6 share which, Lily Gunasekera, as also thepresent petitioner, claimed as having devolved on them and the.other persons disclosed in the statement of claim of Lily Guna-sekera. Since the plaintiff had no deed in respect of the trans-fer to Vincent Perera he must have decided to part with thisshare in view of the risks involved in trying to prove his rightsto this share and the considerable delay which necessarily wouldbe occasioned by adding all these persons as parties andproceeding to trial thereafter. He did not stand to benefit atall by this settlement as he had conceded the entirety of the1/6 share claimed by Lily Gunasekera on behalf of herself andthe others including the present petitioner. Lily Gunasekeraalso admitted that Linton Soysa sold his share to VincentPerera, but that it was only a 1/6 share.
Lily Gunasekera claims to be one of eight children of a brotherof Catherine Silva, who became entitled to a 1/30 share. Thepresent petitioner was disclosed by her as a child of a sister ofCatherine Silva, one Emaliya who had nine children. Of thesenine children, six claimed interests before the surveyor andwere added as 5th to 10th defendants. They were duly servedwith summons, and although the 8th defendant filed a proxy,pone of them, took any interest whatever in the proceedings inthe case or at the trial.
' It is in this background that the application of the presentpetitioner has to be reviewed. It has been submitted that asLily Gunasekera was made the 18th defendant in this case it wasincumbent on the Judge to have made the persons disclosed byher as defendants, including the present petitioner, in terms ofsection 22 (1) (b) of the Act. Undoubtedly if Lily Gunasekerahad been added as a defendant on the basis of her claim in thepetition for intervention, then this should have been done andthe failure to add the persons disclosed by her and to issue sum-mons on them would have rendered the Interlocutory Decreevoid.
V Y TIIIA LING AM, J.—Qunaiillake v. Silva
But this is not the basis on which she was added as a partydefendant. Hex' intervention was dismissed. But as the plaintiffhad agreed to give her a share out of his own share which he hadproved at the*frial, she was made a party defendant for thispurpose only and not on “the basis of her claim made in herpetition. Undoubtedly she had driven a hard bargain andobtained from the plaintiff something more than what she hadclaimed for herself, that is the entirety of the 1/6 share whichaccording to her should have gone to herself and the otherpersons disclosed by her including the present petitioner.
It was also submitted that even if this view be correct thetrial Judge was at that time seised of the fact that others werealso entitled to shares in the land as set out by Lily Gunasekerain her petition. It was argued that therefore, for a full andproper investigation of title which in terms of section 25 of theAct it was incumbent on him to carry out, the trial Judge shouldhave added them as parties and issued summons. But as faras the trial Judge was concerned Lily Gunasekera had consen-ted to her intervention being dismissed and the petition forintervention was no longer before him and it was not incumbenton him to add them as parties under the provisions of the Parti-tion Act.
Moreover, he was equally seised of the fact that no less thansix of the present petitioner’s brothers had been added asparties but chose to stake no claim of any kind and took no partwhatever in the trial, although they had claimed certain planta-tions before the surveyor. The trial Judge cannot shut hiseyes to this fact particularly so in view of the allegation by theCounsel for the plaintiff that certain persons who were in posses-sion of portions of the land were trying to prolong the case. Thepresent petitioner’s brothers and sisters the 6th, 7th and 9th and10th defendants—had claimed certain plantations before thesurveyor and now even if this application fails, the 9th defen-dant has paved the way to still further prolong the action byfiling papers to set aside the Interlocutory Decree on the groundthat summons was not served on him. The allegations of theCounsel for the plaintiff therefore seem justified and in thiscontext the concessions made by the plaintiff are understandable.
The observations made by Dias, S. P. J. in regard to the oldPartition Ordinance are not out of place. In the case ofMencliinahamy v. Muniweera, 52 N.L.R. 409, a case institutedin 1939 he said at page 411, “ this case is a melancholv exampleof the workings of our antiquated and cumbersome PartitionOrdinance. This case forcibly reminds one of the famous, thoughmythical case Jandyce v. Jandyce immortalised by Charles
VYTHTALINGAM, J.—Chmatiilake t>. Silva
Dickens in Bleak House of which it was said—‘ And thus,through years and years, and lives and lives, everything goes on,constantly beginning over and over again, and nothing everends ’. And now at the end of 1950, if the contention of thepetitioner is right, the work of twelve long years will be of noeffect, because the dispute which was settled by the interlocutorydecree of the District Judge and the Judgment in appeal of theSupreme Court will have to be ignored and the matter dealtwith anew. ”
The Partition Act No. 16 of 1951 was intended to remedy thesedefects in the Ordinance. In the ‘ objects and reasons’ of theAct it is stated “ The essence of a partition decree is that personsdeclared entitled under it obtain title good against all the world.Various decisions of the Supreme Court have tended to eat awaythe indefeasibility of the title Government Gazette No. 8372,June 9, 1938 Part II, page 475. In this connection Sinnetamby,J. said “ It cannot be impressed too strongly tfhat the obligationto examine carefully the title of the parties becomes all the moreimperative in view of the far reaching effects of section 48 of theNew Act which seems to have been specially enacted to over-come the effect of the decisions of our Courts which tended toalleviate and mitigate the rigours of the conclusive effect ofsection 9 of the repealed Partition Ordinance No. 10 of 1863.Cooray et al v. M. A. P. Wijesuriya, 62 N.L.R. 150 at page 161.
Where a partition decree is entered without any investigationof title at all it does not have the conclusive effect provided byeither section 9 of the old Partition Ordinance or section 48 (1)of the Partition Act. Thus Gunaratne v. The Bishop ofColombo, 32 N.L.R. 337, was decided on the basis that there wasnothing to show “ that the judge made any inquiries into title ”and that “ the decree was passed on the defendant’s admission. ”In the case of Vmma Sheefa v. Colombo Municipal Council, 36N.L.R. 38, it was held that the decree for sale did not have a con-clusive effect because apart from the consent of parties therewas no evidence in that case that the parties to the action or anyof them were co-owners of the premises, so that it could not besaid that there had been an investigation of title.
But it is different if there has been an investigation of titlebut it is not exhaustive or is defective. As Lord Cohen observedin the Privy Council in the case of Mohamedaly Adamjeeand others v. Hadad Sadeen and others, 58 N.L.R. 217 at page226, “ Once it appears that the court has done so, then any defectin the method of investigation would not vitiate the decree anymore than an error of law or of fact by a judge would, in thegenerality of cases, vitiate a decree duly entered and not
VYTHIALINGAM, J.—-Ounatillake v. Silva
appealed from or confirmed in appeal. ” This would be so evenwhereas in thdt case, “ The District Judge did hold an investiga-tion into title although his investigation has not been sufficientlyexhaustive to"prevent the perpetration of the fraud which hastake place. ” ibid. In sudh a case a decree in a partition casecannot be set aside in a separate action.
Different considerations also apply in the case of an appeal ina partition action for nothing is final or conclusive until theappeal is concluded. Consequently “ On an appeal in a parti-tion action if it appears to the Court of Appeal that the investi-gation has been defective it should set aside the decree andmake an order for proper investigation. Nothing in the parti-tion action can be final or conclusive until the appeal is con-cluded Their Lordships would add that if it appears to
the Supreme Court when hearing an appeal in a partition casethat investigation of title has been inadequate it should, eventhough no party has raised the point, set aside the decree actingunder its powers of revision. ” Per Lord Cohen, ibid.
This power to act in revision and set aside a partition decreeon the ground that there has been an inadequate investigationof title, can only be exercised when the Supreme Court is hearingan appeal in a partition case and no party before it has raisedthe point. This is clearly indicated by the use of the words“ when hearing an appeal ” and is emphasised by Lord Cohenwhen he says in the same page “ But the fact that lack of properinvestigation may be sufficient for an appeal court acting in thesame case to set aside a dec~ee does not detract from the con-clusive effect of section 9 when the decree is being considered ina separate case. ”
Nor can a stranger to a partition action move the SupremeCourt in revision to set aside an interlocutory decree which hasalready been entered, on the ground that his claim has notbeen investigated or on the ground that the title of the partiesto the action has not been adequately investigated, because, ifthere has been an investigation of title though it is inadequatethe decree is final and conclusive. The difference is that wherethere is an appeal “ nothing in the partition action can be finalor conclusive. ” Section 48 (1) of the Partition Act makes
this quite clear when it sets out that “the interlocutory
decree entered under section 26 and the final decree of partitionentered under section 36 shall, subject to the decision >n anyappeal which may be preferred therefrom, be good and sufficientevidence of title”. This is not so where there is an appli-
cation in revision. The interlocutory decree remains final and
VYTHIALINGAM, J.—OunatiUake v. Silva
conclusive where there has been no appeal, and the interlocu-tory decree cannot be set aside in such a case on the groundthat there has been an inadequate investigation of title.
The position under the Act is now qtlite clear. No interventionby a stranger to the action can now be permitted at any stageafter the interlocutory decree has been entered. This has nowbeen laid down by authoritative decisions of the former SupremeCourt which must be considered as taking the mailer beyondthe range of controversy. Express provision is made for theaddition of parties in section 70 of the Partition Act wnichreads : —
“ The Court may at any time before interlocutory decreeis entered in a partition action add as a party to the action,on such terms as to payment or prepayment of costs as thecourt may order—
any person who, in the opinion of the Court, should be,
or should have been, made a party to the action, or
any person who, claiming an interest in the land,
applies to be added as a party to the action.
(2) Where a person is a party to a partition action and hisright, title and interest to or in the land to which the partitionaction relates are sold, during the pendency of the partitionaction, in execution of, or under, any decree, order or processof any court, the purchaser of such right, title and interest atthe sale shall be entitled to be substituted for that person as aparty to the partition action, and such purchaser, when sosubstituted, shall be bound by the proceedings in the partitionaction up to the time of the substitution. ”
In the case of Odiris Appuhamy v. Carolis Perera, 66 N.L.R.241, a Divisional Court of three judges (Sri Skanda Rajah, J.dissentiente) which however, is not binding on us, held that astranger was not entitled to intervene after the interlocutorydecree is entered. Basnayake, C. J. after quoting the provisionsof section 70 said at pp. 242, 243. “ The above quoted provisionleaves no room for doubt as to the stage of a partition action atwhich a party may be added. While a substitution under sub-section (2) can be made at any time, an addition undersub-section (1) can be made only before interlocutory decree.In adding the respondent to this appeal as a party to the parti-tion action, the learned District Judge did what he had nopower to do. ”
VVTTTTAT.ngftAM. J.—OunatUlake v. Silva
A similar view was taken in Noris v. Charles, 63 N.L.R. 501,by Sinnetamb£, J. with H. N. G. Fernando, J. agreeing, thoughno reference was made to section 70. These two cases wereexpressly appf^ved by a Divisional Bench of Five Judges (SriSkanda Rajah. J. and G. P. A. Silva, J. dissentiente) in R. Rasahv. Thambipillai, 68 N.L.R. 145, where Sansoni, C. J., deliveringthe main judgment said “ The effect of this provision (section70) is that no intervention can be permitted at any stage afterinterlocutory decree has been entered ”, page 146. His Lordshipalso said that a contrary view taken by him in the unreportedcase of S. C. 74, D. C. Inty. Colombo 8116/P must be treatedas wrong and now overruled.
In that case it was sought to equate the wrong registration ofa lis pendens with the non service of summons on a party tothe action by arguing that each constitutes a failure to take anessential step in procedure. But the majority of the Courtrejected the argument. On the same day the same Bench of FiveJudges by the same majority delivered another judgment tothe same effect, 68 N.L.R. 385. The point must now be regardedas being covered by authority which makes the question one nolonger at large.
Even after judgment has been pronounced but before theinterlocutory decree has been signed a party cannot intervene.In the case of U. D. Ariyaratne v. Lapie et al, 76 N.L.R. 221,a Divisional Bench of there Judges held that section 70 of thePartition Act is not wide enough to permit the Court to allow aparty to intervene in a partition action after judgment has beenpronounced in terms of section 26 of the Act but before inter-locutory decree has in fact been signed. An earlier decision inPodisingho v. Ratnaweera, 62 N.L.R. 572, on the same pointwas approved and followed. In both these cases the Judges didnot even consider the grounds for intervention.
In Wijeratne v. Samarakoon, 71 C.L.W. 87, a different viewwas taken in similar circumstances but this case must now beregarded as overruled by the decision in Ariyaratne v. M. (Lapie,(supra). However it may be noted that in Samarakoon’s caseone of the defendants had moved to withdraw his statement ofclaim to a right of way as he had divested himself of hisinterests and the intervention was allowed presumably on theground that the right of way had been transferred to the personwho sought to intervene. It is possible in these circumstancesto have entertained the intervention under section 70 (2) of theAct. However, this case did not say that parties could be addedafter interlocutory decree had been entered for the interventionwas allowed because the interlocutory decree had not yet been
VYTHIALINGAM, J.—OunatiUake v. Silva
entered in the sense that it had not been signed. In any event
in this ease the present petitioner did not intervene in the
interval between the delivery of judgment and the entering of
the interlocutory decree but long afterwards. •*
A person who has not been made a party to a partition actionis not without remedy in appropriate circumstances. If his rightin the land to which the action relates is extinguished or isotherwise prejudiced he may file separate action in terms ofsection 49 for damages from the party to the action whose actor omission caused the damage. Nor is such a person bound bythe decree as set out in section 48 in the circumstances statedtherein “ the three subsections taken collectively indicate thatnotwithstanding—
any omission or defect of procedure, or
in the proof of title adduced before the Court, or
the fact that all persons concerned are not parties to the
the decree is final and conclusive against all persons whom-soever except against a person who has not been a party to thepartition action and claims a title to the land independently ofthe decree. Such a person must assert his claim in a separateaction and can only succeed if—
he proves that the decree had been entered by a Court
without competent jurisdiction, or
that the partition action has not been duly registered
as a Its pendens
A partition decree can be set aside -only when an imperativerequirement of the Act as distinct from mere omissions or defectsof procedure has not been followed or where there has been afailure to observe the cardinal principles of natural justice.Thus, interlocutory decrees have been set aside in the following-circumstances:—
where only a notice instead of a summons was issued
on a party added as a defendant as required by
sections 12 and 13 — Leelawathie v. Weeraman et al.
68 N.L.R. 313, 5 JJ.
Where a defendant was not duly served with summons—
Siriwardena v. Jausumana, 59 N.L.R. 400.
Where notice of survey was affixed on a land different
to that which was described in the schedule to the
plaint as required by section 17 (2)—Amarasnriya
Estates Ltd. v. Ratnayake, 59 N.L.R. 476.
VYTHIALINGAM, J.—GuruUillalce v. Silva
Where a defendant is a lunatic and no manager was
appointed, at the instance of the defendant lunafic-himgelf appearing by guardian—S. TJkku v. M. Sidoriset al* 59 N.L.R. 90.
Where a party is dead and no substitution has been
made—Beebee v. Mohamed, 68 N.L.R. 36, Five Judges.
Where an interlocutory decree was entered in the
absence of the contesting defendant who wasprevented by causes beyond his control from attendingCourt on the trial date or giving instructions to hisproctor. “In my opinion an omission to give a partyto a suit an opportunity of being heard is not merelyan omission of procedure but is a far more funda-mental matter in that it is contrary to the rulesof natural justice embodied in the maxim aud£alteram partem. ” Per Weerasooriya, J. in Siriya v.Amalee, 60 N.L.R. 269.
Where a minor is not represented by a guardian ad*
litem—the interlocutory decree was set aside at theinstance of another defendant—Perera v. Aron Singho& others, 64 C.L.W. 13.
Where the date fixed for filing of a statement of claim
is a holiday and a party thereafter had no notice ofthe trial date—73 N.L.R. 49.
This list is not intended to be exhaustive.
The extent to which this Court has gone to exclude interven-tions after interlocutory decree is entered is illustrated by thedecision in U. Suraweera et al. v. A. K. Jayasena, 76 N.L.R.413. In that case a contesting defendant died during thependency of the action, and thereafter interlocutory decree wasentered without his heirs being substituted. An heir of his madean application to set aside the decree but the District Judge heldthat he had no jurisdiction to set aside the decree on this ground.This Court held that he v/as right but acting in revision thedecree was set aside and the case sent back for a fresh trial.But this Court directed that “ apart from the statements of claimfrom the (deceased) 52nd defendant, the District Judge will notentertain any fresh statements of claim. ” at page 414. Theemphasis is mine.
VTTHIALINGAM, J.— GunatiUaU v. Silva
It is possible that the agreement arrived at between theplaintiff and Lily Gunasekera was collusive and perhaps,fraudulent. Section 44 of the Evidence Ordinance sets out thatany party to a suit or other proceeding may siftw that anyjudgment, order or decree which is relevant under sections 40,41 or 42 and which has been proved by the adverse party wasdelivered by a Court not competent to deliver it or was obtainedby fraud or collusion. The new Partition Act provides in sub-section 48 (2) that “ The interlocutory dceree and the finaldecree of partition entered in a partition action have the finaland conclusive effect declared by subsection (1) of this sectionnotwithstanding the provisions of section 44 of the EvidenceOrdinance, and accordingly such provisions shall not apply tosuch decrees. ”
In the case of Noris v. Charles, already referred toSinnetamby, J. says at page 503, “ Fraud and collusion are wellknown grounds on which in any ordinary litigation the decreecan be set aside. But under the provisions of the Partition Actsection 48 (2) even the provisions of section 44 cf the EvidenceOrdinance are made not applicable to a partition decrees. Indeedunder the old Partition Ordinance, although there was no suchspecific provision, fraud was not a ground on which a partitiondecree could have been set aside—vide Fernando v. MarshallAppu, 23 N.L.R. 370. ”
In the case of Mohamedaly Adamjee and others et al. v. HadadSadeen and others (supra) dealing with the subject of fraudand collusion under the old Partition Act, 58 N.L.R. page 217,the Privy Council held that a decree entered under section 8 orsection 9 of the Partition Ordinance No. 10 of 1863 is conclusiveagainst all persons whomsoever, and a person owning an interestin the land partitioned whose title even by fraudulent collusionbetween the parties had been concealed from the Court in thepartition proceedings is not entitled on that ground to have thedecree set aside, his only remedy being an action for damages(even though the property is still in the sole possession of theparties whose fraud is set up).
Lord Cohen quoted with approval the following passage fromthe judgment of Sir Alexander Wood Renton, C. J. in Jayavoar-dena v. Weerasekera, (1917) 4 C.W.R. 406 at 407, “Now lookingat the very distinct declaration contained in the 9th section, andto what must have been the object which the Legislature hadin view, I can come to no other conclusion than that the provisowas meant to conserve the only remedy, except by way ofappeal, which could be sought against a decree already pro-nounced, namely, one which sounded in damages ; if it were
Weeraaifttcardena t>. AvissaioeUa M-P.C-8.
not so, the operation of the Ordinance must be disastrous. Nosingle decree could escape a litigious spirit to reopen it on theground of fraud, and no date would exclude such contests. Theobject of the‘Partition Act was to quiet the title to land, andleave persons prejxidicially affected by any such decree, by reasonof any cause whatever, to their remedy in damages at law, andthis to my mind is a full and perfect remedy, and it is unfortunateif any mere dicta should have led to any uncertainty on thepoint. ” This is even more so under the Act.
In the circumstances I hold that the petitioner is not entitledto have the partition decree set aside, either on the ground thathe had not been made a party, or on account of fraud andcollusion between the plaintiff and the 18th defendant or thatthere had not been a sufficient investigation of title. I wouldtherefore dismiss the application with costs.
M. A. P. GUNATILLAKE Petitioner and E. M. MURUEL SILVA and 7 OTHERS, Responde