113-NLR-NLR-V-70-M.-GIRAN-APPUHAMY-Appellant-and-M.-ARIYASINGHE-and-26-others-Respondents.pdf
H. N. G. FERNANDO, (J.J.—Giran Appuhamy v. Ariyasinghe
55S
• •
1968 Present: H. N. G. Fernando, C.J., and Abeyesundere, J.M. GIRAN APPUHAMY, Appellant, and M. ARIYASINGHEand 26 others, Respondents
S. C. 195166 (Inty.)-D. O. Gampaha, 8207/P
Partition action—Inclusion, in plaint, of a land possessed dividedly by prescriptivepossession—Alienation of that land pending the partition action—Validity—Partition Act, s. 67.
Rea judicata—Opinion thereon of Judge who heard the earlier action—Irrelevancy.
Where, in a partition action, a particular portion of land ia excluded
from the partition on the ground that some person or persons have title toit as a separate land, whether by prescriptive possession or otherwise, section67 of the Partition Act does not render void dealings with that portion duringthe pendency of that action.•
If a party to an action sets out a claim of title, and if a finding as tohis title has to he reached, and is in fact reached, that finding is in law resjudicata between the parties despite any opinion to the contrary expressedby the trial Judge.
Appeal from an order of the District Judge, Gampaha.
E. S. Amerasinjhe, for the Plaintiff-Appellant.
No appearance for the Defendants^Respondents.
Cur. adv. vuli.
March 3, 1968. H. N. G. Fernando, C.J.—
The corpus of this action for partition is described in the plaint as
Lots 5 and 6 depicted in Plan No. 543 dated 15th May 1952. That plan
was prepared for the purposes of an earlier partition action, No. 2612/P
C. Gampaha. One of the two persons who were plaintiffs in that
action is the 8th defendant in the present action. The present plaintiff
and one Siman Appu intervened in that action and filed a statement
of claim asking for the exclusion of Lots Nos. 5 and 6 of the land
depicted in the Survey Plan No. 543. In so doing, they pleaded also
that they had acquired prescriptive title to those two Lots. These claims• • • •
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H. N. G. FERNANDO, C.J.—Giran Appuhamy v. Ariyasinghe
were disputed in that action, and judgment was delivered in 1958, theDistrict Judge upholding the claim of prescription and excluding these2 Lots 5 and 6 from the partition.
Although the present plaintiff and Siman Appu jointly intervened inthe earlier action, it would appear that the major interests in Lots 5and 6 had belonged to Siman Appu, and that at the time when theirstatement of claim was filed the present plaintiff had a claim only to asmall share in these Lots. But in January 1952 and April 1952, whilethe earlier action was pending, Siman Appu executed two deeds ofGift in favour of the present plaintiff, and the latter’s claim of title inthe present action is based largely on these two deeds.
One of the substantial points of contest hi the present action is thatthese two deeds, having been executed during the pendency of actionNo. 2612/P, were void by reason of the provisions of section 67 of thePartition Act. On this point the learned Judge who tried the presentaction has held that the deeds were void, and that is the principal reason^vhy this action has been dismissed.
A similar point was considered by this Court in the case of Perera v.Attale 1. In that case an action for partition had been dismissed on theground that the land had been possessed dividedly and not in common.During the pendency of the action, the owner of one of the Lots trans-ferred her interests and the transferee also thereafter executed anothertransfer. In subsequent proceedings these transfers were challenged onthe ground that they were void because they were executed dining thependency of a partition action, but this Court held in appeal that section17 of the old Partition Ordinance did not render the transfers void.De Kretser J. made the following observations in the judgment of thisCourt:—
“ The present is a case of many separate lands being included ina partition action and the action was dismissed on the ground thatthe land was not held in common. Each owner of each lot was nottherefore affected by the abortive partition action and was free todispose of his land as he chose. As Wood-Renton J. remarked inAbeysekera v. Silva (1 C. A. C. 37) ‘ undivided ” hi section 17 meansundivided in the eyes of the law. Here the larger land had long ceasedto be undivided in the eyes of the law.”
The facts of the present case arc not in all fours with those of the casejust cited, because in the present case the partition action 2612/P wasnot dismissed, but it seems to me that the ratio decidendi of the citedcase is applicable to the present tacts. Although a partition decree wasentered in action No. 2612/P, Lots 5 and 6 were excluded from thatdecree on the grounff that the present plaintiff and Sitnai* Appu lisfti,
* {1944) 4,5 N. L. F. 210.
H. N. G. FERNANDO, C.Appuhamy v. Ariyaainghe
555
at the time when the action was filed, already acquired a title by prescrip-tion to these Lots. To use the language of Wood-Renton J. which wasquoted in the cited case, Lots 5 and 6 were thus not “ undivided inthe eyes of the law ”, because by reason of the acquisition of prescriptivetitle to these Lots, they had ceased to be an undivided part of the largerland.
De Kretser J. also referred to a situation in which the plaintiff in apartition action includes another’s separate property in the corpus ofthe action, and pointed out the injustice of preventing the true ownerfrom dealing with his property merely because of a false allegationconcerning the property made in a partition action.
The learned District Judge in the present action thought that thedecision in 45 N. L. R. is no longer applicable because the provision oflaw which now applies is Section 67 of the new Partition Act. Section 17of the old Ordinance prohibited alienations of an undivided share orinterest in any “ property as aforesaid ”, that is to say, in any property#which “shall belong in common to two or more owners ”, and the decisionin 45 N. L. R. was in effect that the alienation of property pending apartition action is not void if in law it does not belong in common to theco-owners of the land which is the subject of the partition action.
Section 67 of the Partition Act prohibits the alienation pending apartition action of an undivided share or interest in the land to whichthe action relates ; and the expression ‘‘ partition action ” is defined asan action for the partition or sale “ of any land or lands belonging incommon to two or more owners ”. Hence, if a land, which is included bya plaintiff in the corpus of a partition action, is in law a separate land,and is excluded from the partition on that ground, it is not a landbelonging in common to the owners of the land ultimately partitioned. Itseems to me therefore that the construction placed by de Kretser J. onthe former s. 17, namely that it rendered void only the alienation ofshares of a land which is properly the subject of a partition action, mustbe placed also on s. 67 of the new Act.
The partition action which was referred to in the case of Perera v.Attale had been instituted in 1928 and was ultimately dismissed in1937 or 1938 ; and unfortunately it is not uncommon that partitionactions may be pending for very long periods. If then it turns out atthe final determination of a partition action that some portion of thecorpus described in the plaint did not in law properly form part of thesubject of the action, section 67 of the Partition Act, if construedaccording to the opinion of the trial Judge in this case, can have extremelyharsh consequences. If that construction be correct, the true ownerof tljat portion of^and would be unreasonably deprived of the liberty ofselling or donating his property. The ordinary principle, that s. §7 doesnot prevent dealings in the interest to be ultimately allotted in a partition
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H. N. G. FERNANDO, C.<^—Oiiffin Appuhamy v. Ariyasinghe
decree, would be of no avail to such an owner ; for his right is, not thatany interest will be allotted to him in the decree, but that his propertycannot be the subject of partition. Accordingly, even if there be anyslight doubt on the question, I much prefer to lean towards the construc-tion that the Legislature, in enacting s. 67, had no intention of renderingthe decision in that case inapplicable in connection with actions underthe new Partition Act.
I would hold for these reasons that where a particular portion of landis excluded from a partition on the ground that some person or personshave title to it as a separate land, s. 67 does not render void dealingswith that portion during the pendency of that action. The learned DistrictJudge therefore erred in holding to be void the deeds of 1952 underwhich the present plaintiff claimed title to Lots 5 and 6.
The case for the plaintiff was that he is entitled to the entirety of#Lots 5 and 6, less an undivided half acre, and that the 1st defendant isentitled to that undivided half acre. Although a number of personsintervened and filed statements of claim, the only claims which werepressed were those of the 3rd, 4th and the 7th defendants. The 3rddefendant claimed a title by prescription to Lot A of the land depictedin Plan No. 1990 prepared in this action. That claim was rejected by thelearned trial Judge. The 7th defendant claimed interests under a deedNo. 33091 of 3rd January 1952 alleged to have been executed by SimanAppu. The learned trial Judge, however, held that the 7 th defendantfailed to prove the due execution of this deed. The 4th defendant, aman by the name of W. A. Jan Singho, claimed certain interests undera person referred to in plaintiff’s pedigree. This 4th defendant was aparty to action No. 2612/P, having been the 19th defendant in thataction. Counsel for the plaintiff has argued in appeal that the 4thdefendant, as well as all other persons who were parties to actionNo. 2612/P, can now have no claims because the finding that thepresent plaintiff and Siman Appu had title by prescription to Lots 5 and6 binds those parties as res judicata. This argument was rejected by thetrial Judge owing to a quite unusual circumstance.
When the points of contest were framed in action No. 2612/P thelearned Judge who tried that action referred inter alia to the pointraised as to the prescriptive rights of the present plaintiff and SimanAppu to Lots 5 and 6, and he observed that he was “ averse in a partitionaction to adjudicate upon points of contest which may be used as resjudicata in some other action ”, and he proceeded to state that he wasallowing this point of contest to remain “ not for the purpose of anyother parties obtaining an adjudication, but purely as#a gjiide for n^e ”.These Observations have influenced the trial Judge in the present actionto hold that the earlier finding on prescription is not res judicata.
H. N. G. FERNANDO, C.J.—Oiran Apjruhcxmy v. Ariyasinghe
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It is clear, however, from the judgment in action No. 2612/P that thequestion of the prescriptive rights to Lots 5 and 6 was actively contested,and that the finding in favour of the present plaintiff and Siman Appuwas based on convincing evidence of their exclusive possession. In fact,therefore, despite those earlier observations, the point of contest No. 5was not merely used or regarded as a guide for the Judge. In any event,if a party to an action sets out a claim of title, and if a finding as to histitle has to be reached, and is in fact reached, that finding is in law resjudicata between the parties despite any opinion or inclination to thecontrary which the trial Judge might entertain. On this ground, theclaim of the 4th defendant in the present action should have beenrejected.
The 26th defendant made no statement of claim prior to commencementof the trial. He was called on behalf of the 3rd defendant as a witness atthe trial, presumably in an attempt to support the case of the 3rddefendant. In the course of his cross-examination he stated asfollows :—
<
“ I was not a party to that case No. 2612/P. I had rights in this
land from my mother Punchihamy. I sold those rights to Siman.
Q.After that you had no rights in this land ?
A. Still I own another 1 /64 share.
Q.But you have not intervened in this action and claimed thatshare ?
A. There is no proper case for this land.
Q. You haven’t up to date claimed this 1 /64 share ?
A. I have intervened as a party in this case. I have not filed anyanswer. ”
At this stage he was permitted to file a statement of claim, which atthe most upon his own deeds is that he is entitled to a 1 /64 share. It isclear, however, from the document P6, that the 26th defendant had in1942 sold to Siman Appu (the predecessor of the present plaintiff-) theinterests which, as stated in P6, he had derived from his motherPunchihamy. There being no reservation whatsoever in this deed ofany portion of the land thereby conveyed, his claim that he still owneda 1/64 share is very nearly absurd. There is nothing in the evidence toexplain how he retained a right to this particular share. He admittedthat he had been served with summons and that he had not intervenedin this action prior to the very late stage at which he was permitted tofile a statement of claim. That circumstance alone casts grave doubton Wie validity of* his claim. I hold that the leamed*trial Judge^shouldhave rejected this claim.
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Alwis v. The Queen
It is unfortunate that there was no appearance at this .appeal for anyof the defendants, but I am satisfied on an examination of the evidencethat the claims of the contesting defendants would have been rejectedby the trial Judge but for his erroneous decisions on the two questionsof law which I have discussed.
I would accordingly allow this appeal and set aside the decreedismissing the plaintiff’s action. The 3rd, 4th and 7th defendants mustpay to the plaintiff the taxed costs of contest in the District Court and ofthis appeal. The case is remitted to the District Court for InterlocutoryDecree for partition to be entered as prayed for in the plaint, and forfurther proceedings to be taken as provided in the Partition Act.
Abeyesttndere, J.—I agree.
Appeal allowed.