053-NLR-NLR-V-60-MARSHAL-PERERA-and-others-Appellants-and-aELIZABETH-FERNANDO-and-others-R.pdf
229c
4
Marshal Pet era v. Elizabeth Fernando
Present: H. N. G. Fernando, J., and T. S. Fernando, J.MARSHAL- PERERA and 2 others, Appellants, and KTJZA,RETfrFERNANDO and 27 others, Respondents
S. C. 230 (Tnty.)—D. C. Kalittara, 26,715
Partition action—Is it an action for “ recovery ” of property ?—Civil Procedure Code~Sections 403 and 547—Applicability of section 547 to partition actions—Abatement of a partition action—Consequences of such abatement.
An action for partition of land belonging to the estate of a deceased personis not neoessarily, though it might often be, an action to which section 547"of the Civil Procedure Code applies. When objection under that section istaken, the question to be decided is whether the real or substantial purpose-of the action is to determine questions of title. If such be the case, the propercourse is to afford to the plaintiff an opportunity of obtaining probate or letters-of administration.
Where, in a partition action, there is no dispute by any defendant or inter*venient as to the title as stated in the plaint, an order of abatement enteredunder section 403 of the Civil Procedure Code will not bar the successors intitle of the plaintiff (assuming that section 403 does apply to successors in-title) from instituting a fresh action for partition.
■i^^-PPEAL from a judgment of the District Court, Kalutara.
Walter Jayawardene, with J■ V. M. Fernando and Neville Wijeratne,.for the plaintiffs-appellants.
Sir Lolita Bajapakse, Q.G., with J. A. D. de Silva, for the defendants-respondents.
Cur. adv. tmft.
1 (1948) 50 N. L. R. 233.
*&3© H. N. Gr. FERNANDO, J.—Marshal Perera v. Elizabeth Fernando
December 18, 1956. H. N. G. Fernando, J.—
After interlocutory decree had been entered in this action for partition,the learned District Judge dismissed the action upon two grounds :—
that the father of the plaintiffs having died leaving an estate
which required administration, this action is not maintainableuntil probate or letters of administration have been issuedto the executor or administrator of the deceased ;
that a former action for the partition of the same land instituted
by the father of the plaintiffs having abated, section 403of the Civil Procedure Code is a bar to the institution of thepresent action.
Upon the valuations of the land in dispute, both in the present actionand in the former one, there were admissions that the value of thedeceased father’s interest in this land alone was over Rs. 2,500, and theproctor for the plaintiffs in the lower Court did not apparently contestthe matter of value ; we are therefore not disposed to consider favourablythe submission made to us with respect to that matter by counsel forthe plaintiffs. His principal submission, however, has been that section547 does not apply to the present action, which is not an action “ forthe recovery of property belonging to or included in the estate of thedeceased Ponnamma v. Anmmgam1. decided by the Privy Council,•was an action for partition, or alternatively for a sale of certain partsof an intestate estate. The widow and the son of the deceased, pur-porting to act under his oral directions, had proceeded to divide theimmovable property among the heirs, and conveyances were executedaccordingly; the heirs themselves had dealt with some of the portionsallotted to them. When one of the heirs instituted the action in question,this Court decided in appeal that “it would be wrong in every senseof the term to disturb the division ” (which was considered to havebeen honestly made), “ to say nothing of the conveyances and encum-brances which have supervened”. The Privy Council affirmed the■decision but for a different reason. Their Lordships held that theaction fell within the scope of section 547. The principal argumentAgainst the applicability of the section was that it did not prevent themaintenance of an action for partition. As I interpret the judgment,their Lordships did not reject this argument, and decided only that the■action in question “ though in form an action for partition only, is forthe recovery of property ”; the plaintiff was “ seeking to recover hershare as one of her father’s heirs in the property which has beenirregularly alienated in favour of the other heirs”. They observedalso that the intestate’s estate “ was not in condition for partition ”,and that before partition could take place “ the plaintiffs would requireto re-create the inheritance”. The investigations made by the PrivyCouncil into the purposes of the action and into the “ condition ” of theproperty to which it related, as well as many of the observations in thejudgment, were irrelevant and even misleading if the true intent of the
1 (190$) 8 N. L. B. 223.
H. N. G. FERNANDO, J.—Marshal Per&ra v. Elizabeth Fernando231
•decision was to uphold the simple proposition that “an action forpartition of land belonging to the estate of a deceased person is an actionfor the recovery of property within the meaning of section 547 Ishould emphasize also that, for the purpose of barring the present action,the proposition would have to commence thus:—
“ an action for partition of land, shares in which are property
belonging ….”.
Wood Renton J. in Hassen Hadjiar v. Marikar1 expressed the view thatthat action (which was for partition) was not one for the “ recovery ofproperty” and did not understand the Privy Council to have held thatevery partition action came within the scope of those words. Thereis nothing in the judgment of Garvin S.P.J. in de Silva v. Juwa 2 toindicate that in his opinion “ a proceeding between co-owners, thepurpose of which is resolve their respective interests in common intoholdings in severalty ’ ’ was a proceeding for the ‘ ‘ recovery of property ’ ’,although he did observe that in too large a percentage of cases, actionsfor partition are in reality actions for declaration of title.
The true position would seem to be that an aotion for partition isnot necessarily, though it might often be, an action to which section 547applies. So that when objections under that section is taken, the•question to be decided is whether the real or substantial purpose of theaction is to determine questions of title. If such be the case, the propercourse, as approved by this Court in Hassen Hadjiar v. Marikar1 andGooneratne v. Hamine3, is to afford to the plaintiffs an opportunity ofobtaining administration. Reference to the pleadings in the present caseand to the judgment which preceded the entry of the interlocutory decreeshow that the purpose of the action went far beyond the division of the-common land; the objection was therefore sound but not fatal to theaction.
As to the second ground of dismissal, namely, that an earlier actionfor partition of the same land instituted by the father of the presentplaintiffs had abated, it was assumed, both in the lower Court and by•Counsel and ourselves at the hearing of the appeal, that if the presentaction involved the same “ cause of action ” section 403 would be a bar.
It was only at the time of the preparation of this judgment that I readthe observations of Gratiaen J., in Soothiratnam v. Annamma4 which,although made obiter, may support the contrary view that section 403primarily affects only the plaintiff (in the abated action) or his legalrepresentative ”. As that contrary view was not in any way suggestedto us at the hearing of the present appeal, which in any event can bedetermined on other grounds, I shall assume for present purposes thatthe section does operate even against successors in title of the plaintiffin an action which had abated. Any observations which may followconcerning the position of such successors in title must therefore betaken as being founded on that assumption and not as an expression of•opinion that section 403 does in law affect such successors.
1 (1912) IS N. L. B. 275, 280.* (1903) 7 N. L. B. 299.
* (1935) 37 N. L. B. 166.4 (1954) 57 N. L. B. 515
232 H. N. G. FERNANDO, J.—Marshal Perera v. Elizabeth Fernando
In de Silva v. Jwwa1 Garvin J. held that the abatement of an action.rei vindicatio is a bar to the institution of an action for partition in respectof the same land where the same question of title is involved. He foundthat the “ cause of action” in the earlier proceedings was the denialby the defendant in that action of the right of the plaintiff to any interestin the land. At the stage therefore of the same defendant’s interventionin the second (partition) action, the identical question of title aroseimmediately for determination, and the cause of action in the secondsuit was the same as in the first one. In the partition suit (No. 22,670
C. Kalutara) which had preceded the present action, there was nodispute by any defendant or intervenient as to the title as stated in theplaint; though the title has been disputed in the course of the present(second) action, the same question of title was not a “ cause of action ”involved in the earlier suit. That suit was in the strict sense one broughtin the exercise of the right of any co-owner to compel the partition ofland owned in common. The Partition Ordinance does not render itessential for the plaintiff to prove in such a suit that common possession,is inconvenient, nor have the Courts held that inconvenience of possessionmust be established. The Ordinance presupposes an inherent right inany person who is for the time being a co-owner to secure a dividedholding for himself or else, in appropriate circumstances, to obtain hisproportionate share in the proceeds of sale of the land. If, therefore,any notion of a “ cause of action ” is involved in a partition suit pure-and simple, it is this inherent right of a co-owner for the time beingwhich constitutes the “ cause of action ”.
The decision of this Court in Muttucumarasamy v. Sathasivam 2 affirmed.earlier decisions to the effect that an order of abatement can properlybe made in a partition action and we see no reason to doubt the correctness-of those decisions. But what are the consequences of such an orderof abatement? Garvin, A.C.J., in Bulner v. Rajapakse3 held that, ifan order of abatement is not set aside upon application made in thatbehalf, or if no action to set aside the order is taken within a reasonabletime after it is made, the order does amount to a final determination ofthe action. But the “final determination” can in reason be effectiveonly to bar a fresh action in respect of questions disputed though notpursued to a decision and which must therefore be taken to have beendetermined against the plaintiff.
The “ cause of action ”, if any, which became barred by reason of theabatement of action No. 22,670 was only the inherent right of the plaintiff'in that action to compel a partition. That plaintiff himself could probablynot have sought to exercise that right again unless the order of abatementhad first been set aside. But in the present (second) action the “ cause-of action” is the inherent right of the present plaintiffs, and not thatof their father, which is the basis of their claim for a partition; and.section 403 (even if it does apply to successors in title) does not dis-qualify the plaintiffs. No question of title having been involved in thefirst action, there is not here present the element which, in my opinion,.
1 {1935) 37 N. L. JR. 165.
(1951) 63 N. X. R. 97.* (1926) 26 N. L. R. 260.
Gunaratne v. Devarajan
233
was decisive in the case of de Silva v. Jmoa1, namely, that the title of theplaintiff had been disputed in the earlier action, and was again soughtto be agitated by what was inform only an action for partition.
In his dissenting judgment in Muttucumarasamy v. Sathasivam3Basnayake J., as he then was, appeared to have thought that ordersof abatement made in partition actions can lead to absurdity:—“ Once an action ^abates under Chapter XXV, no fresh action shallbe brought on the same cause of action. Must then the co-ownersfor all time hold in common the property in respect of which theaction abated was instituted ? ”. He had perhaps assumed, as wedo (but without so deciding), that section 403 operates against suc-cessors injtitle. But even if that assumption be correct, the suggestedabsurdity does not, in my opinion, arise, because the consequenceswhich can in any event flow from the abatement of a partition actionpure and simple are limited. The co-owners (excluding, of course,the original plaintiff) will not for all time be prevented from securinginterests in severalty, and can secure those interests by virtue of theirinherent rights as co-owners, although (they may be precluded fromre-opening any dispute as to the title |of any predecessor which was a“ cause of action ” involved in the suit which had abated.
For these reasons we think that the learned District Judge erred inholding that the abatement of action No. 22,670 was a bar to the presentaction. The decree of dismissal is therefore set aside, and the actionwill be laid by pending proceedings for administration of the Estateof the father of the plaintiffs. In the circumstances we would awardto the plaintiffs half the costs of this appeal.
T. S. Fernando, J.—I agree.
Decree set aside.