MOHAMEDALY ADAMJEE and others, Appellants, and HADAD SADEEN and others, Respon

056-NLR-NLR-V-58-MOHAMEDALY-ADAMJEE-and-others-Appellants-and-HADAD-SADEEN-and-others-Respon.pdf

.Mchrnncdaly Admnjcc v. Undent Sadccn
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fix the 1’iuvy Coc-vcii,J
1956 J'rrsonl:Earl Jowitt, Lord Oaksey, Lord Cohen, Lord Keith ofAvonholm and Mr. L. M. D. de SilvaMUIIAJIKDALV ADA.M.IEK and others, Appellants, and 11ADAD.SADJ5KX and others, ItespondontsI’iiivy Co i nch. Arn;,i, Xu. 24 of 1‘Jlo,S C. 72—D. C. Colombo, 5,961
Partition action—Decree Jor sale—.fraudulent collusion between the parties—Effecton conclusive nature of decree—Investigation of title by Court—Effect of defectiveinvestigation—Partition Ordinance, -Yo. 10 of 1SG3 (Cap. SG), ss. 2, I, S, 9.
Prescription—Immovable property—Claim against ficlcicominissarii—Burden ofproof—Evidence Ordinance, s. 100—Prescription Ordinance, ss. 3, 13.
A clecrco entered under section S or section 9 of Partition OrdiimncoXo. 10 of 1S03 is conclusive against nil persons whomsoever, and n. personowning an interest in the land partitioned whose title even by fraudulent collusionbetween tho parties had been concealed from tlio court in tho part it ionproceedings is not entitled on that ground to have the decree set asido, his onlyremedy being an action for damages (even though tho property is still in thosolo possession of tho parties whose fraud is set up.)
Although a partition decree entered without any investigation of titlodoes not liavo the conclusive effect provided by soction 9 of tho PartitionOrdinance, a dccreo entered after a defectivo or inadequate investigation oftitlo is conclusive, ns long ns it has not- been set nsido on an appeal in tho sainoaction. Onco it appears that tho court did hold an investigation into title,although tho investigation was not sufficiently oxliaustivo to prevent thofraud which was perpetrated by the parties in regard to tho title of a personwho had not been mndo n party to tho action, any defect in tho method ofinvestigation would not vitiate tho clecrco. Tho person so defrauded is notentitled to seek by separate action to set nsido tho decreo or in a separateaction to challengo its conclusive effect-. Tho fact that lack of proper investi-gation of titlo may bo sufficient for an appeal court acting in the siuno casoto set asido a clecrco does not detract from tho conclusive effect of section 9of tho Partition Ordinance when the decree is being considered in a sepurutocaso.
Obiter : On an appeal in a partition action if it appears to the court of appealthat the investigation of titlo has been defect ivo it should set aside tho decree'and make an order for proper investigation. When investigating titlo thofollowing matters should bo attended to by the court in tho generality ofeases :—
“ Tho Trial Judge should insist upon tho production of the relevant oxtractsfrom tho'registers kept under tho I.and Registration Ordinance (Cap. 101).Thoy may reveal registered instruments suggesting tho possible existence of
10LVIII
2J. X. Ii 6345-1—1,593 (2/07)
title in i>ersons other than tho parties before the court. The names of all suchporsons should bo ascertained by duo investigation and they should bo givennotice of tho proceedings. Whether they appear in court or not, tho effect ofsuch instruments upon tho title sot up by tho parties boforo tho court shouldbo examined. The Trial Judge should also investigate in sufficient detailtho question of possession. Ho should havo before him sworn testimonyspecifying by namo the persons actually in possession and satisfy himselfthat they aro somo or all of tlie parties before tho court or that they are inpossession under some or all of such parties. Ho should in case of doubt causotho parties in possession to bo summoned for tho purposes of his investigation.Ho should also ask for tho production of tho originals or duplicates of receiptsfor ratos and reconcile tho material furnished by tho i-ocoipts with the evidencegiven …. If it appears to tho Supremo Court wlion hearing an appealin a partition case, that investigation of titlo lias been inadoquato it should,oi-on though no party boforo it has raised tho point, sot asido tho decree actingunder its powers of revision.”
Tho proviso' to section 3 of tho Proscription Ordinanco roads nsfollows :—
“ Provided that tho said poriod of ten years shall only begin to run againstparties claiming estates in remainder or rovorsion from tlio timo when thoparties so claiming acquired a right of possession to tho property indispute.”
Held, that onco a party relying upon proscription lias brought himselfwithin tho body of section 3 tlio onus rests on persons rolying upon tho provisoto establish their claim to an estate in remainder or reversion at scrac relevantdato and tlioy cannot discharge this onus unloss they establish that theirright foil into possossion within tho period of ten years. Thus, if a Jidcicom-iiii-isarius claims tho benefit of tho proviso ns a party defendant tho burden ison him to prove not only that ho is a Jidc-icommissarius but also that liis rightof possession accrued to him within tlio period of ton 3-enrs possossion by tlioplaintiff. CheUiah v. IVijcnathan (Idol) o4 jSt. L. R. 337, considered.
jAcI.’I’KAL from a judgment of tho Supreme Court reported in50 7sr. L. It. 315.
The dispute between the parties in this case related to certain immovableproperty. The property belonged at one time to one Savia Uinma as afuluciarius under a will which created a Jideicomniis-sum. Neither tlioprobate of the "will nor the executor’s conveyance in favour of SaviaUnima had been registered. The plaintiffs claimed the property under aduly registered Fiscal’s Conveyance executed in consequence of a hypothe-cary action instituted by their predecessor in title against Savia Uinina.The Fiscal’s Conveyance did not set out the restrictions on Saiva Uinina spaver to deal with the property. The defendants, who succeeded toSavia Umma’s title as fidcicommi-ssarii, claimed the property by virtueof a decree entered in a partition action in which some of them were theplaintiffs and the others were the defendants. They had fraudulentlyand collusively failed to make the present plaintiffs parties to the partitionaction, the plaint in which was lodged on July 15, 19-19. In the presentease the plaintiffs who had, by themselves and through their predecessorsin title, been in possession from March 29, 1916, relied, inter alia, on
their prescriptive possession of the entire property, anti claimed asfollows :—
(«) An order that the court do set aside or vacate the decree in thePartition proceedings.
(A) A declaration that the said decree was null and void and of noforce or cfFcet in law, and in the alfcrnaf ivc(r.) damages in the smu of Its. 100,000.
ftir Lynn U ngoed- Thom as, Q.C., with Raymond 11 niton. JC. ft.Amerasinghc and L. Kadinjamar, for the plaintiffs appellants.
Ralph Jfilnr.r, with jV/ss ./. Risschof, for respondents 1—S. 12, 14 anti 21.
Cur. ado. vitjf.
December 11, 1950. [Delivered bit Lonn Oonrexl—
The dispute between the parties relates to immovable property situateat IvoIIupitiya within the Municipality and District of Colombo, WesternProvince. Their Lordships will refer to it hereafter as “ the property ”,The property formerly belonged to one Idroos Lebbe Marikkai" (herein-after referred to as “ Marikkar Me died in 1S7G, probate of his willbeing granted on the 29th May, 1S7G. In accordance with directions con-tained in the will the estate was divided amongst those who would havebeen Marikkar’s intestate heirs in such a manner that each received t heequivalent in value of what would have been his or her share upon anintestacy. In that division the property was conveyed by the surviving' Executor by a Deed Xo. 2575 of the 14th September, ISSS, to Savia Umma,a daughter of the testator. The conveyance was made subject to theconditions imposed by the will, including a provision that the said SaviaUmma or her issues or heirs should not sell, mortgage or alienate theproperty but should hold the same in trust for “ the grand-children of mychildren and the grand-childrc-n of my heir and heiresses ” as thereinmentioned.
On the 15th July, 1949, a Partition Action was started in the DistrictCourt of Colombo by seven of the present respondents against the otherthirty-six respondents, the forty-three respondents, grandchildren of SaviaUmma, between them claiming to be all the persons interested in theproperty. To these proceedings the appellants were not made parties.
Li the plaint in the Partition Action the plaintiffs allege in paragraph 19that the parties to the Partition Action and their predecessors in title hadbeen in undisturbed and uninterrupted possession of the property. Theplaintiffs asked for sale under the Partition Ordinance (Xo. 10 of 1SG3)anti for division of the proceeds.'•
At tlris point it is convenient to refer to the relevant provisions of thePartition Ordinance. Section 2 provides that *' when any landed propertyshall belong in common to two or more owners, it is and shall be competentto one or more of such owners to compel a partition of the said property,
or, should such partition be impossible or inexpedient, … to applyfor a sale thereof, and in cither case to file in any court of competentjurisdiction a-libel … ” as therein mentioned.
Section 4 gives direction as to investigation of the title of the plaintiffs(a) in the event of default of appearance by any defendant (6) afterappearance if there is a dispute as to title or if any defendant shall claima larger share than the plaintiffs have stated to have belonged to him.The Section goes on to provide that the court shall try and determine anymaterial question in dispute between the parties and shall decree a par-tition or sale according to the application of the parties or as to the courtshall seem fit. Sections 5, 6 anti 7 deal with what is to be done in theevent of a decree of partition being made. With these Sections theirLordships are not concerned in the present case. Section S gives direc-tions as to the carrying out of a decree for sale. Once the decree hasbeen made no further decree is necessary, and it is provided that a certi-ficate under the hand of the Judge of the court that the property hasbeen sold under order of the court and setting forth the name of thepurchaser thereof and that the purchase money has been paid into courtby him shall be evidence in any court of the purchaser’s title without anydeed of transfer from the former owners.
' Section 9, which is the most important Section requiring considerationon the present Appeal, provides as follows :—
“ The decree for partition or sale given as hereinbefore providedshall be good and conclusive against all persons whomsoever whateverright or title they have or claim to have in the said property althoughall persons concerned are not named in any of the said proceedingsnor the title of the owners nor of any of them truly set forth and shallbe good and sufficient evidence of such partition and sale and of thetitles of the parties to such shares or interests as have been therebyawarded in severalty.-•
Provided that nothing herein contained shall, affect the right of anyparty prejudiced by such partition or sale to recover damages from theparties by whose act whether of commission or omission such damageshad accrued. ”
Returning now to the Partition Action, on the 29th March, 1950, theDistrict Judge made a decree in the course of which he declared the sharesof the various parties to the Action and ordered and decreed that theproperty should be sold as therein mentioned and the proceeds be broughtinto court to abide by the further order of the court.
It is to be noted that the present appellants had not been made partiesto that Action. They claim to be entitled to the whole of the propertyas descendants of one Adamjee Lukmanjee who had acquired the propertyfrom one Leonora Fonseka. She had acquired it under a Fiscal’s Con-veyance executed as the residt of mortgage proceedings in the DistrictCourt of Colombo against the said Savia Umma and her husband. TheFiscal Conveyance did not set out the restrictions on Savia Umma’s powerto deal with the property which were contained in the 1SSS Conveyanceunder which she acquired title.
J-OTtD COHEX—.Wohamcdaly Adamjc« v. Hadad So dec n
221
At this point theii Lordships must observe that fill the deeds and docu-ments on which the appellants rely for their title were duly registeredin accordance with the provisions of the Registration Ordinance but thatneither the probate of Marikkar’s will nor the Deed of 1SSS were soregistered. The appellants argued that the relevant sections of the Da mlRegistration Ordinance gave them priority over the title of therespondents under the will and the conveyance of 1SSS.
The relevant Section of the Registration Ordinance at the time of theexecution of the conveyance to Mr. Adamjee Lukmanjee was Section 17of Ordinance Xo. 14 of 1S91. This Ordinance was repealed by OrdinanceXo. 23 of 1927, anil Section 7 of the repealing Ordinance provided thatan instrument executed or made on or after the I st January, 1SGI, whetherbefore or after the commencement of the repealing Ordinance should unlessit was duly registered under the Ordinance be void as against all partiesclaiming an adverse interest thereto on valuable consideration by virtueof any subsequent instrument which might be duly registered under theOrdinance. Dor reasons which will appear hereafter their Lordships donot find it necessary to deal with the argument based upon theRegistration Ordinanc-o.
Prom the decree of the District -Judge in the Partition Action certainrespondents appealed to the Supreme Court on the question whether theyhad received their proper shares under the decree of the District Judge.Before that appeal could be heard in the Supreme Court the appellants,who had become aware for the first time of the Partition proceedingspetitioned on the 20th May, 1950, for an injunction restraining sale ofthe property. In paragraph 16 of their Petition they pleaded that theyshould have been made parties to the action and should have had andshould have been given notice thereof, and they asked by way of relief foran injunction restraining any sale of the propertjr, for an order settingaside or vacating the decree in the Partition Action and for a declarationt hat the decree in the Partition Action was nidi and void and of no forceor effect, in law.
What happened on that Petition does not appear clearly from theRecord. Their Lordships arc left in doubt whether the attention of theSupreme Court at the hearing of the appeal from the Partition decreewas ever called to this Petition for injunction and other relief. Jfad theattention of the Supreme Court been directed to this matter it is possiblethat they would have considered carefully whether there had been sufficientinvestigation of the respondents’ title and if there had not been sufficientinvestigation they might have directed a new trial under the powersreferred to later in this judgment…
On the 20th May, 1950, the appellants also lodged their plaint in theproceedings which have now reached their Lordships ’ Board. • In clause14 thereof they pleaded that by themselves and through their prede-cessors in title they had been in the sole and uninterrupted and undis-turbed possession of the property to the exclusion of all others from at-least the 2Gth day of March, 1916, and that they had prescribed to theproperty. That pleading was directed to the Prescription Ordinance
No. 22 of 1871. Section 3 of that Ordinance so far as material providedas follows :—
“ Proof of tiie undisturbed and uninterrupted possession by aDefendant in any act ion, or by those under -whom lie claims, of landsor immovable property, by a title adverse to or independent of thatof t.lie claimant or Plaintiff in such action (that is to say, a possessionunaccompanied by payment of rent or produce, or performance ofservice or duty, or by any othr act by the possessor, from which anacknowledgment of a right existing in another person would fairlyand naturally bo inferred) for ten years previous to the bringing ofsuch action, shall entitle the Defendant to a decree in his favour withcosts. And in like manner when any Plaintiff shall bring hisaction . . . proof of such undisturbed and uninterrupted posse-ssion as hereinbefore explained by such Plaint iff … or by thoseunder whom he claims, shall entitle such Plaintiff … to a-decree
in his favour with costs.
“ Provided that the said period of ten years shall only begin torun against parties claiming estates in remainder or reversion fromthe time when the parties so claiming acquired a right of possessionto the property in disunite. ”
Returning non' to the plaint the relief claimed by the appellants was,so far as relevant, as follows :—
(a) An order that the court do set aside or vacate the decree in thePartition proceedings.
(&) A declaration that the said decree was null and void and of noforce or effect in law, and in the alternative(c) damages in the sum of Rs. 100,000..
Answers were jmt in by some of the defendants and issues were settled.In due course the action came on for trial before District Judge L. 35. deSilva. He answered the various issues, his findings so far as materialto the present appeal were as follows :—
jfc held further that the effect of that Ordinance teas that the ■will beingvoid, Savia Umma could only have vested in Leonora Fonseka andthrough her in the appellants’ jncdcccssors in title such interests as shoJuid in the property on an intestacy and that such interest was onlyjylGth of the value of the propert}', i.c., Its. 6.250. He added, however,the value of the improvements which he found the appellants and theirpredecessors in title to have effected on the property and accordinglyawarded to the appellants by way of damages under the proviso to section<) of the Partition Ordinance the sum of Ks. 29,CS7/50. He rejected theirclaim to sot aside the decree or to have it declared null and void on theground that the effect of section 9 of the Partition Ordinance was that thedecree was final and binding and that the only remedy of any personincluding a person who had been defrauded by the action of theparties who obtained the decree was limited to a claim in damages.
The plaintiffs appealed to the Supreme Court who affirmed the decisionof the District Judge, and it is from that decision that the appellants,with the leave of the Supreme Court, now appeal to their Lordships.
Having regard to the finding of the trial Judge as to the fraud andcollusion issue and the confirmation of that finding by the Supreme Court,it is plain that the apj)ellants were entitled to some relief, and the questionsfur i.lieir Lordslims ’ decision are :—
Whether the plaintiffs can now insist on having the decree in
the Partition Action set aside or arc limited by section 9 of thePartition Ordinance to their claim for damages, add
whether, if they arc so limited, they must accept the figure of
Rs. 29,GS7/50 awarded to them by the trial Judge or arc entitledto receive Es. 100,000 which the parties agree would be thecorrect figuic if the appellants Mere entitled absolutely to theproperty at the date of commencement of the proceedings.
The appellants support their claim to have the decree set- aside on"two grounds. First., they say that notwithstanding the wide language ofsecton 9 fraud is something outside the ambit of that section, and thaton general principles a. decree obtained by fraud is both under ICnglishtaw and under t lie law of Ceylon always liable to be set aside in indepen-dent proceedings. Their Lordships heard an interesting argumenton this point from Sir Lynn Ungocd-Thonins on behalf of the appellants,and despite the wide language of the Ordinance they might have beenpersuaded to accept it had there not been a long succession of authorityin the Courts of Ceylon establishing the principle, for which justificationcan be found in the language of the sccton, that “ a partition decree isconclusive against all persons whomsoever, and that a person owning aninterest in the land partitioned whose title even by fraudulent collusionbetween the parties had been concealed from the court in the partitionproccctLings is not entitled on that ground to have the decree set aside,his only remedy being an action for damages. ” The citation which theirLordships have made was from the decision of Sir Alexander Wood Rentonin Jayaicardcnc v. IVcera-seLera L That- decision followed on a continuous
1 (10 f 7) -I C. IK. /?. 1OS at 107.
series of decisions dating back as far as 1891, see Nono Hami v.De Silva 1_Prior to that year there had been some conflict of decision, but in the caselast cited Burnside, C. J., said at p. 199 that section 9 “ makes a partitiondecree obtained under the Partition Act final and conclusive in all respects,save as to the right contained in the proviso of any party prejudiced by itto his action for damages. ” Ho vent on : “ It was urged that it was aprinciple of law that fraud vitiated everything obtained by it. That istoo general a proposition. It is true that the law abhors fraud, and equityhad an undoubted jurisdiction to relieve against every species of fraud ;yet when adequate relief can bo had at law, where in fact there is a full,perfect, and complete remedy otherwise, it is not the course to interfere.
(Deere v. Guest, 1 M. & C. olG, and per Lord Hardwicke, “ Smith’s Manualof Equity, ” p. 51.) How, looking at the very distinct declarationcontained in the 9th section, and to what must have been the object whichthe Legislature had in view, I can conic to no other conclusion than thatthe proviso was meant to conserve the only remedy, except by way of"appeal, which could be sought against a decree already pronounced,namely, one which sounded in damages ; if it were not so, the operationof the Ordinance must be disastrous. Ho single decree could escape alitigious spirit to reopen it on the ground of fraud, and no date wouldexclude such contests. The object of the partition act was to quiet thetitle to land, and leave persons prejudicially affected by any such decree,by reason of any cause whatever, to their remedy in damages at law, andthis to my mind is a full and perfect remedy, and it is unfortunate ifany mere dicta should have led to any uncertainty on the point. ”_
Since that date there has been no decision conflicting with the. prin-ciple laid down as stated by Sir Alexander Wood Benton in the passagealready cited, and their Lordships, whatever their view might otherwisehave been as to the correctness of the decision, would not be prepared todisturb a principle so long recognised and on the basis of which main-titles may have been established.
1 (1S0J) !> .S’. C. C. IDS.
Since Sir Alexander Wood Renton gave his judgment in 1917 there hasbeen no decision to the contrary. Sir Lynn referred to a dictum ofEnnis, J., in the case of Fernando v. Marsal Appu 2 in which the learned.Judge said that he did not consider it necessary to go into the questionof whether in exceptional circumstances, where the property is still inthe sole possession of the parties whose fraud is set up, the court couldnot on proof of fraud take away the property from them. Sir Lynnsaid that the present was such a case and that it was still open to theirLordships to say that as the decree for sale had not actually been carriedout and as the fraud had been proved they could take away the propertyfrom the respondents. Their Lordships’ attention was not called to anycase where the possible exception suggested in the passage stated hailbeen recognised. Bearing in mind that section 9 expressly provides forthe binding nature, not of the sale but of the decree for sale, and thatsection S docs not contemplate any decree subsequent to that decreeingthat sale should take place, their Lordships do not think it right to-recosnise the alleged exception to the general rule.
– (!!rj >) ->3 X. L. 11. 370.
AUcrnalivclv the appellants submitted that- there had been no properinvestigation of title in the present case and that consequently the deci'ecwas not a decree within the terms of section 9 of the Partition Ordinance.The Supreme Court have laid it down that it is the duty of the courtbefore entering a decree to satisfy itself that the parties to the ease havetitle to the land. The District Judge in the present case referred to a-decision of the full bench reported in 6 X. L. JR. 24a where it was heldthat a paramount duty is cast upon the court by the Partition Ordinanceto ascertain who are the actual owners of the land sought to be partitionedbefore entering up a decree which is good and conclusive against theworld. Layard, C. J.. went on to say at2oO ** As collusion between
parties to a partition action is always possible, and as in such a suit theparties get their title from the decree of the court awarding them a definitepiece of land, and as a decree for partition under section 9 of the Ordinanceis good and conclusive against all persons whomsoever, whatever theirriehts may be, whether they arc parties to the suit or not, it appearsto me that no loophole should be allowed to a Judge bjr which he canavoid jicrforming the duty cast expressly upon him by the Ordinance. ”Their Lordships find themselves in complete agreement with what wassaid by Layard, C. J., in that case. The facts of each case will indicatethe manner in which the Judge can best carry out his duty and theirLordships would not attempt to lay down a complete course of procedurefor the Trial Judges to follow in every case. Their Lordships think how-ever that the following matters should be attended to in the generalityof cases.
The Trial Judge should insist- upon the production of the relevantextracts from the registers kept under the Land Registration Ordinance(Chapter 101). They may reveal registered instruments suggesting thepossible existence of title in persons other than the parties before thecourt. The names of all such persons should be ascertained by duoinvestigation and they should be given notice of the proceedings. Whetherthey appear in court or not, the effect of such instruments upon the titleset up by the parties before the court should be examined. Tile TrialJudge should also investigate in sufficientdetail the question of possession.He should have before him sworn testimony specifying by name theperson actually in possession and satisfy himself that they arc someor all of the parties before the court or that they arc in possession undersome or all of such parties. He should in case of doubt cause the partiesin possession to be summoned for the purposes of liis investigation. Heshouel also ask for the production of the originals or duplicates of receiptsfor rates and reconcile the material furnished by the receipts with theevidence given. The fraud which has bcc-n established in the PartitionAction under consideration could not have taken place if the stepsindicated by their Lordships had been taken.
It is to be observed, however, that Chief Justice Layard did not goon to say what would bo the effect if a decree was made and was eithernot appealed from or was confirmed on appeal. Their Lordships do notthink it permissible for a court in a subsequent action to disregard the-decree merely because they come to a different conclusion from that of
the trial Judge ns to what were the appropriate steps to take in the parti-cular case in the investigation of the title. The decree which is “good,and. conclusive against all persons whomsoever ” under section 9 is a“ decree for partition or sale given as hereinbefore provided. ” ThcirLordships are of opinion that the words “ as hereinbefore provided ” hasreference to section 4 which requires the court to investigate title. Onceit appears that the court has done so then any defect in the method ofinvestigation would not vitiate the decree any more than an error of lawor of fact by a judge would in the generality of cases vitiate a decree dulyentered and not appealed from or confirmed on appeal. It has beenheld by the Supreme Court of Ceylon that a decree entered without anyinvestigation of title, lias not the conclusive effect provided by section 9..Thus <7ooneralne v. The Bishop of Colombo 1 was decided oil the basisthat there was nothing to show “ that the judge made any enquiries intotitle ” and that “ the decree was passed on the defendant's admission. "It was hc-ld that the decree for sale had not a conclusive effect undersection 9 of the Ordinance. The basis of the decision in Umma Sheefav. Colombo Municipal Council – which was strongly relied upon by theappellant, was that “ in the result apart from the consent of parties therewas no evidence that the parties to the action or any of them were co-owners of the premises ” so that it could not have been said that therehad. been any investigation of title. It was held that the decree for saledid not have a conclusive effect. With these decisions their Lordships-agree, but they have no application to the present case. In the P.artitioncase under consideration the District Judge did hold an investigation into-title although his investigation has not been sufficiently exhaustive to-prevent the perpetration of-the fraud which has taken place.
Wliat their Lordships have said in the preceding paragraph is applicable-when it is sought by separate action to set aside a decree in a partition,action or in a separate action to challenge the conclusive effect of a par-tit-ion decree. On an appeal in a partition action if it appears to the courtof appeal that the investigation has been defective it should set aside thedccreo and make an order for proper investigation. Frothing in thepartition action can be final or conclusive until the appeal is concluded."Bub the fact that lack of proper investigation may be sufficient for anappeal court acting in the same case to set aside a decree does not detractfrom the conclusive effect of section 9 when the decree is being considered,in a separate case. Their Lordships would add that if it appears to theSupreme Court when hearing an appeal in a partition case, that investi-gation of title lias been inadequate it should, even though no party beforeit has raised the point, set aside the decree acting under its powers ofrevision.
For the reasons their Lordships have given they arc unable to acceptthe submission cm behalf of the appellants that the partition decreeshould be set aside. They turn therefore to the question of damages.The appellant based his claim to the Jvs. 100,000 on two grounds. Firstho said that he had acquired title by prescription and for that reasonalone must be entitled to recover the Us. 100,00Oas being the value of f he
> (1931) 32 JY. L. It. 337.
"(193/) 36 JY. Tj. It. 3S.
.. —) .. n- o ii-lirtl/, o f- f li n rrtn f nriol .7 -i ii. AlfrtrnnIlf* Tllnilflpll f.U.1 t .
lie had a valid title by reason of the provisions of the Registration Ordi-nance to which their Lordshijas have already referred. Their Rorclsbipsdo not find it necessary to go into the question raised under the Regis-tration Ordinance, since they are satisfied that under the PrescriptionOrdinance the appellants have acquired a good title to the property forthe value of which they now ask to bo compensated. It was commonground between the parties that the onus of proving the ten years un-disturbed and uninterrupted possession adverse or independent to thetitle of the respondents rested in the first instance on the appellants.But it was said on behalf of the respondents that once they had establishedthat they had an interest as fidei commissarii under the last will ofMarikkar the onus of proving the date on which their right to possessionaccrued to the respondents rested on the appellants. As the trial Judgeput it “ Once the defendants established that they are fidei commissariiit is for the plaintiffs to establish that as against them qua fidei com-missarii plaintiffs have acquired a title by prescription. To do so,the plaintiffs must prove the burden under Section 3 of the PrescriptionOrdinance that they have acquired a title by prescription subsequentto the accrual of the rights of the defendants as fidei commissarii. ”Their Lordships arc unable to agree with the Courts in Ceylon on thispoint. Looking at the matter first as a question of construction theythink that once parties relying upon prescription have brought themselveswithin the body of section 3 the onus rests on anyone relying upon theproviso to establish their claim to an estate in remainder or reversion a tsome relevant date and they cannot discharge this onus unless they esta-blish that their right fell into possession at some time within the periodof ten years. The view which their Lordships have reached as a matterof construction seems strongly supported by the provision of section 100of the Ceylon Evidence Act E"o. If which reads “ when any fact isespecially within the knowledge of any person the burden of provingthat fact is upon him. ” In the case under consideration knowledgeof the date of the death of Savia Umma and her children wouldbe especially within t he knowledge of the respondents and the dates anightwell he unasccrtainablc by the appellants.
It was suggested that the opinion which their Lordships have reachedon the construction of the section with the assistance of the Evidciace Actis in conflict with the decision of the Supremo Court under section 13 ofthe Prescription Ordinance in the case of >S'. K. Chelliah v. W ijcnalhan 1.This section modifies the operation of section 3 of the Prescription Ordi-nance in the case of disabilities referred to in the section, namely infancy,idiocy, unsoundness of mind, lunacy, or absence beyond the seas. Inthat case Gratiaen J. said at p. 342 :-
“ Where a party invokes the provisions of Section 3 of the Prescrip-tion Ordinance in order to defeat the ownership of an adverse claimantto immovable property, the burden of proof rests fairly and squarelyon him to establish a starting point for his or her acquisition of pre-scriptive rights. If that onus lias prima facie been discharged, theburden shifts to the opposite party to establish that, by reason of
1 (1051) 54 N. L. It. 33T.
some disability recognised by Section 13, prescription did not in factrun from the date on which the adverse possession first commenced.-Once that has been established, the onus shifts once again to the otherside to show that the disability had ceased on some subsequent dateand that the adverse possession relied on had uninterruptedly con-tinued thereafter for a period of ten years. ”
The language of section 13 is so different from that of the proviso tosection 3 that their Lordships would not be prepared to hold that even ifthe decision in the case cited were correct it was applicable to the very■different language to the proviso used in section 9. They are not preparedin giving their decision in the present case to overrule the decision inChelliah’s case, but they desire to point out t hat so far as can be gatheredfrom the judgments in that case, the attention of the Supreme Courtwas not directed to section 106 of the Evidence Act. Should a similarcase ever come before this Board they would like the assistance of obser-vations of the Supreme Court as to the application of that section. Theystress this point because the knowledge, e.g., of duration of absence beyondthe seas must as a rule be within the cognisance of the party relying onsuch absence, and it might well be impossible for the opposite part}' toascertain when the absence ceased.
For the reasons their Lordships have given they will humbly adviseHer Majesty to allow the appeal and increase the damages awarded toIts. 100,000. The respondents must pay the plaintiffs’ costs of thisappeal as well as their costs of the appeal to the Supreme Court. Theorder of the District Court as to costs v ill stand.
Appeal allowed.
(1)the respondents had acted wrongly, unlawfully, fraudulently and
collusivcly in failing to make the appellants party to the PartitionAction or in giving them any notice thereof;
(2)the value of the property at the date of the action was Rs. 100,000 ;
(3)the appellants had not acquired a prescriptive title to the premises
since they had not discharged the onus which the DistrictJudge held rested on them of establishing when the respondentsright to possession as jidei commissarii accrued to them.Therefore
(■4) the appellants could only claim such rights as accrued to them byvirtue of the' priority conferred on them bj1, 2 3 the RegistrationOrdinance.