115-NLR-NLR-V-58-MRS.-J.-H.-RATNAYAKE-Appellant-and-MRS.-P.H.-AMARASEKERE-et-al.-Respondents.pdf
1955Present : Pulle, J., and Weerasooriya, J.
MRS. J. H. RATNAYAKE, Appellant, and MRS. P. H.AMARASEKER E el a!.. Respondents
S. C. 33—D. G. Colombo, 6,314 [P
Partition action—Property not forming subject matter of action—Jurisdiction of Courtto come to a finding on title thereto—Power of Court to order that any share shallremain unallotted—Partition Act, 2co. 16 of 1961, ss. 26, 26 (2) (/).
Upon a temporary division of property owned in common by three sisters,each entered into possession of separate properties and possessed them fortiff eon years. Thereafter one of them instituted tho present action to partitiona property which had been allotted to her at tho temporary division and whichshe had possessed upon that basis exclusively.
Tho appellant, who was ©nc of tho defendants, filed answer claiming that thodivision was a permanent one and also that she had acquired a titlo by pres-cription to the properties sho had possessed exclusively, and prayed for a dis-missal of the plaintiff’s action. She participated in tho trial and raised issuesin support of her contentions. There were also ponding ’ actions in other courtsfiled by tho plaintiff against tho same defendants to partition some of the veryproperties which wero claimed exclusively by the appellant.
Held, that it was not competent to the appellant in appeal to contend thatit was outside the jurisdiction of the trial Court to conto to a finding on tit lo toproperties not forming the subject- matter of tho present action inasmuchas sho had invited the Court to adjudicate on the issues.
Held further, that, notwithstanding (lie provisions of section 2G (2) {/) of thoPartition Act Xo. 10 of 1051, it was not competent to the Court to lenvo a thirdsharo unallotted pending decisions in tho connected cases.
•^^-PPEAL from a judgment of the District- Court, Colombo.
H. V. Pererci, Q.G., with A*. E. Wcerasooria, Q.C.. and Kingsley Herat,for tho 2nd defendant-appellant.
Sir Lulila Itajapakse, Q.C., with F. It. Dia-s ami T. G. Gunasekera,for the plaintiff-respondent.
If. 11'. Jayetcardene, Q. G.. with C. G. Wecramantry, for the 1st defendant-respondent-.
Cur. cidv. vult.
■July 5, 1955. Pi/LLE, J.—
This appeal arises out of an action instituted on the 25th July, 1951,under the provisions of the Partition Act, Xo. 10 of 1951, which came intooperation on the 1st June, 1951. The subject matter of the action is aproperty called “ Summer ” situated within the Municipal limits of-Colombo. The parties to the action, namely, the plaintiff and the twodefendants, of whom the 2nd defendant is the appellant, are the daughtersof one Hendrick Dabera Appuhamy who died in 1930 leaving a last willby which he devised to them the property in question and several otherin equal shares subject to certain conditions.
Although in form the action was one for partition the parties went to"trial on issues the answers to which affected, at least incidentally, thetitle to all other immovable properties devised jointly to the three•daughters. Stated very briefly the position taken up by the appellantas against her sisters who have made common cause against her is thatthe immovable properties jointly devised to them were amicably divided-and that in that division the appellant was allotted the properties parti-cularised in the schedule to her amended answer dated 29th June, 1953,and that the plaintiff was allotted, among others; the jjroperty which isthe subject matter of the action. She also pleaded that she had acquireda prescriptive title to the properties in the schedule referred to andprayed that the action be dismissed. The learned District Judge found■against- the appellant on all the material issues, save issue Xo. 7 an answerto which did not arise, and declared the parties entitled to the propertyin three equal shares subject to the ficleicommissum created by the lastwill. Apart from submissions on certain matters of law, it was strenuouslyargued in appeal that on the evidence the trial judge was wrong in holdingthat the appellant had not acquired, by prescription, title to the propertiesclaimed exclusively bjr her and that in any event it fell outside his juris-diction to come to a finding on title to properties not forming the subjectmatterof this action and that that finding should not-be allowed to stand.The importance attached by both sides to the finding that the appellanthad not made out a prescriptive title to the properties claimed by herto the exclusion of her sisters can well be appreciated because there arenow pending actions in other courts filed by the plaintiff in the present<?ase a gainst the same defendants to partition some of those very properties.
Before dealing with the pleas raised by the ajjpellant in her answerit is necessary to set out some facts which are beyond controversy.
When the testator died in 1930 his tlrree daughters were minors andin terms of the will the management of t-lie estate was taken up by thepersons named therein, Don Thomas Appuhamy and Philip Perera.
By 1933 tho 1st defendant, the eldest of the daughters, and the plaintiffhad attained majority by marriage and the appellant, the youngestof them, was studying in a convent. She attained majority in April,1937 and married in February, 193S. Early in 1935 the plaintiff filed anapplication in Testamentary case No. 49G0 in which the last will wasproved by which she asked, inler alia, for the removal from office ofThomas Appuliamy and Philip Pcrera and for an order directing thatthe heirs be given possession of their “ distributive ” shares. The courtheld by its order dated the 3rd August, 1935, that on the pretext that theappellant was a minor the managers were clinging to the entire estate,that there was no justification for preventing the two major daughtersfrom the actual possession and enjoyment of their 2-/3rd share anddirected the managers to hand over immediate possession of that shareto the two daughters.•
On the 4th August, 1935, by the informal writing in Sinhalese markedPI 1 the managers purporting to giro effect to the order of Court of theprevious day handed over to the two daughters the properties describedtherein as representing a 2/3rd share of the estate. On the same day theplaintiff and the first defendant signed an informal writing P 12 inSinhalese by which they divided between themselves the propertiesthey received from the Managers. The property which is the subjectmatter of the action was taken by the plaintiff. Both documents weredrawn up by Thomas Appuliamy and one of the witnesses to P 12 wasthe other manager AY. Philip Perera. The concluding paragraph of P 12“reads as follows :—
“ We the said two persons undertook to divide and possess the saidjjrofjerties in this manner, until they are later divided among the threepersons
Now one of the issues tried in the case was whether the order of courtdated 3rd August, 1935, made in case No. 4900 operated as res judicatain favour of the appellant. The answer was in favour of the plaintiffand the 1st defendant and was not challenged at the argument in appeal.An issue as to misjoinder of parties and causes of action answered in theirfavour was not pressed in appea-l.
To continue the narrative. The objections raised by the plaintiff to theaccounts rendered by the managers in case No. 49G0 were referred on tho9th October, 1935, to arbitration and an award P 14 was made on the21st April, 1937, the last paragraph of which reads :
“ In the course of the proceedings and on the 19th December, 193G,a certain agreement was noted between the parties regarding the im-movable property belonging to the estate, namely, that the present-arrangement regarding possession was to continue until the Gtli res-pondent becomes a major in or about April, 1937, and thereafter it shall'be open to the heirs to take steps fora partition, proper division or anyother adjustment
After the appellant became a major in April, 1937, and towards De-cember of the same year the three sisters attempted to reach a final settle-ment regarding the division of the immovable properties and to embody
tliat settlement in a decree of court in case Xo. 49G0 The documentP 17 shows the items of immovable properties taken over from theinventory in caso Xo. 49G0 with their respective values. Excludingitem Xo. 16 which was a property devised solely to the 1st defendant,the value of the properties which fell to the appellant at tho division inAugust, 1935, was Rs. 140,595 while the other two sisters got properties' valued at Rs. 157.3S5. The desire on the part of the latter for a fairerdivision was only natural.
Probably in December, 1937, an informal writing (Vide P 20 and P 20A)purporting to be a scheme of distribution was drawn U2> in triplicate andsigned by the three sisters. Each was witnessed by the husband of thoplaintiff and Thomas Appuhamy, the manager of the appellant’s shareunder the 1935 division. The appellant repudiated this settlementshortly afterwards and her claim now is that since then she had acquiredby prescriptive possession title to all the properties retained by themanagers on her behalf under the 1935 division. Before dealing withthe oral evidence on this point and the finding of the trial Judge I wouldrefer to some minutes in ease Xo. 49G0. Tho first dated the 16thDecember, 1937, reads :—
“ The parties have arrived at a tentative settlement with regard to thedistribution of the immovable properties. The Gth respondent, however,desires to have a further opportunity of considering it before finallyagreeing to it. This matter also may be brought up on 20th Januaryto see whether it is possible for the parties to come to a final adjustmentof all the matters connected with the estate .” (Vide 2D 3).
The 6th respondent referred to is the appellant. On the 20tlr January,193S, no settlement had been reached and the record reads—P 15 :
" Call the ease on 17th March. 193S, to see whether the parties cancome to a settlement with regard to the properties to be taken separatelyby each of them .”
On the 17th March, 193S, it was recorded—P 16—that no settlementwas reached. Towards the end of 1937 the appellant was engaged to bemarried to one Mr. J. M. B. Ratnayake whose brother, Mr. J. Id. L.Ratnayake, a Proctor, was acting for the appellant in coimexion with thescheme of distribution recorded in P 20. Tho estate of the testator wasbeing administered by the Secretary of the District Court and ProctorRatnayake sought access to the deeds relating to the properties. Itajrpears to be probable that particulars were being sought early in 193Sfrom the deeds and from the proceedings hi case Xo. 49G0 to prepareconveyances vesting title according to the scheme of distribution P 20.
It- is common ground that after the settlement recorded in P 20 fellthrough each of tho three sisters continued as before to possess theproperties as fell to them under the tentative division of August, 1935,and apjpiropiriated the income without accounting to the other two. Oneof the properties retained on behalf of the appellant in 1935 was ICanu-wana Estate of the extent of 70 acres. She and her husband effectedimprovements. Tn D. C. Xegombo case Xo. 16262 the plaintiff in the
present ease sought on 20th July, 1951, to partition Kanmvana Estateon the basis of a 1 /3rd share to each of the sisters. The appellant has-answered on the same lines as in this case but lias claimed, in the alter-native, that if a decree for partition is entered she be granted compensationfor improvements in a sum of Rs. 150,000. The hearing of the casesin Xcgombo and in other courts awaits the determination of the case-under appeal. Before dealing with the evidence on which the appellantbases her title by prescriptive possession I would refer to the documentsP 21 and P 22. The former dated 4th February, 1944, is addressed bythe 1st defendant, the eldest sistci-, to the Secretary of the District Court-asking him to hand over to her Proctors the title deeds and other docu-ments to enable them to hie a partition action. The letter dated 14fliFebruary, 1944, is by the Proctors to the Secretary. It. enclosed P 21and stated that they had been instructed to file action “ for the partition,of the several lands belonging to the estate .”
Row the burden of proving title by prescriptive possession lay on theappellant and it would, therefore, be convenient to examine first- her ownevidence and that of her witnesses. She stated that there was displeasureover her marriage because she refused to marry the brother of the 1stdefendant’s husband. Ultimately neither of the sisters attended hc-r-wedding. She admitted having signed the writings P 20 and P 20A.The reason for doing so was that she was to be married in February andher sisters came with their husbands and worried her to sign. She-repudiated the agreement shortly after hc-r marriage on the occasionthat her sisters divided the movable properties among themselves. Thereason given for the repudiation was that Thomas Appuhamy, who,incidentally, witnessed the agreement, and the appellant’s mother toldher that she had done an extremely foolish act. She described herdiscussion of the settlement- with her sisters in these words :
On that day there was a discussion in regard to the immovable-preperty. I told my sisters that- as this settlement was rejected by courtand as everybody told me it was unfair I said I was willing to continuewith the division of 1935 because I was made aware by everybody thatas I was the minor in 1935 I was the only one who could have disagreedwith it, but I told them I was accepting it- and from that date I acceptedit. That old division stood .”
Referring to an attempted settlement in 1943 she said.
“ I told them (the sisters) I had already settled, my husband had spentso much of 3iis money on all these improvements, by that time he haddone all the improvements, so I said—what- settlement after I had spentso much time—and I did not agree because it was not possible at thattime.”
It would not- be correct to say that there was any “ rejection '3 of thesettlement by court. The agreement being informal the appellant-wasfree to resile from it and either bargain for another division or-.sec-k theappropriate legal remedy to obtain her share. The allegation that
pressure was brought to bear on the appellant by her sisters to agreeto the division recorded in P 20 has been discounted by the trial Judgefor the reasons which arc fully set out by him and which I need not repeat.If there was an}* ouster it could not have been prior to 3943.
The appellant called her husband Mr. J. M. B. Ratnayake as a witness,who deposed, principally, to the improvements made to three of thelarge estates retained by the Managers on her behalf at the 1935 division.There is one item of evidence in his cross-examination which is notadverted to in the judgment but which was the subject of comment bylearned Counsel who appeared for the elder sisters. It is the letterP 29 dated 9tli September, 1939, written by Mr. Ratnayake to theplaintiff’s husband in reply to one sent by the latter. In it he says,
There is no objection whatever for me to have these things settled.
I have been asking you several times whenever I met you to come to a.settlement. It will be quite suitable to me anj' day that will be con-venient to you and Mr. Rodrigo. Only let it be in Colombo or Jaela .”
3Tr. Rodrigo is the husband of the 1st defendant. It was put toMr. Ratna3'ake that the proposal to have things settled had referenceonly to the making of a fresh attempt to come to an amicable division. of the immovable properties but he denied it and ended by saying thathe did not know what the settlement was about. During the re-exami-nation certain journal entries in ease Xo. 49G0 were marked by way ofsuggesting that the matters therein referred'to might have been thesubject which Mr. Ratnayake intended to discuss. Of these entries,of which copies were not in the typed proceedings, the nearest in dateto the letter P 29 of the 9th September, 1939, is the entry 2 D 15 datedthe 24th November, 1939, which refers to the motion 2 D 14 of the 15thNovember, 1939. By this motion the appellant asked to be paid a sumof Rs. 95 which had been transmitted to case No. 4960 from the Court ofRequests of Gampaha and it was paid to her on the 24th November.There is nothing to indicate any dispute over this small sum of money,when one has regard to the value of the estate and its income producingcapacity, and it is most unlikely that the husbands of the respectivesisters would have had any desire to discuss, what is plain from thetestamentary case record, a matter which could not raise any seriouscontroversy. The other entries do not afford any 'evidence of anyserious disagreement. In my view the letter P 29 tends to support theevidence of the 1st defendant that after the appellant became a majorattempts at reaching a settlement with the appellant were unsuccessful.The letter also renders improbable the version of the appellant that whenshe repudiated the arrangement recorded in P 20 she regarded the 1935division as final and that she Aas not amenable .to a negotiated settle-ment. Indeed %vhen ono examines the values of the properties—videP 17—and their allocation in the 1935 di*ision it Avould have been sur-prising had the appellant’s, sisters and their husbands remained inertwithout even inviting the appellant to consider fresh inodes of settlementoil an equitable basis. The steps taken in 1944 to institute a partitionaction appear to mark, perhajis, the stage ivhcn the two sisters had lost
all liope of dividing the inheritance otherwise than by process of court.The trial Judge has accepted the reason given by the 1st defendantto explain the delay in filing action.
The appellant argues that there was an ouster of the twosistci-s from theproperties now claimed exclusively by her because on the occasion sherepudiated the 1937 arrangement she told them that she stood by the1935 division. The trial Judge held that there was no evidence of ousterand that the possession by the appellant was under a temporary arrange-ment and that tho bare fact that more than ten years had elapsed beforethe partition actions were instituted did not invest that arrangementwith the character of a permanent settlement. He also held that themaking of improvements was an act consistent with co-ownership.Paying due heed to the relationship between the parties and the eventswhich took place between 1935 and the institution of the actions I amnot convinced that tho Judge camo to a wrong finding on the issue ofprescriptive possession. In my opinion the repudiation by the appellantof the 1937 division resit!ted in no more than that the parties stood, andcontinued to stand in relation to the division of the estate exactly asthey were in 1935.-
The point was pressed in ap>peal that the quest ion, whether the appellanthad acquired title by prescription to the properties which sheclaimed to the exclusion of her sisters, was wholly irrelevant to anyissue properly arising in an action to partition a property not includedamong those which she claimed. Undoubtedly the question wouldhave been directly in issue, for example, in the Hegombo case.In this connexion there .are two circumstances which have to bekept in mind. The appellant both in her answer and in her petitionof appeal asked that the plaintiff's action be dismissed. To obtain adismissal of the action it was necessary for her to establish a tripartitedivision of a final character, under which division the plaintiff baeamethe exclusive owner of the property in suit and that, as a necessarycorollary, tho appellant became the owner of the properties entered inthe schedule to her answer. It is difficult to explain the appeallaut’sparticipation in the trial on any other basis. Else how can it be thatthe eminent counsel who appeared for the appellant at the trial raisedissue after issue directed to tho question whether there was a concludedsettlement in regard to the division of the estate and also invited thecourt to answer an issue of prescription ? The terms of the judgmentappealed from indicate to my mind that the case was conducted on thefooting, and was so understood by the equally eminent counsel whoappeared for the plaintiff, that if the apj>ellant failed on both the issues offamily arrangement and prescription, the inevitable result was a declara-tion that the parties were entitled eacli to a third share of tho propertyin suit. Further, I accept the argument on behalf of the two sistersbased on Thavaganasekaram v. Kuppammal et al. 1 that it is notcompetent to tho appellant to take up the position in appeal that theCourt should not have adjudicated on the issues on which she expresslyinvited it to give its findings.
‘ {1934) 30 A7. L. If. 337.
It is conceded that the plaintiff who claimed to be the owner of only athird share was entitled to maintain the action under the Partition Actand that a dismissal of the action was not warranted even though theapjjellant succeeded on the contest raised by her, provided the courtultimately held the property was held in common by the plaintiff and the1st defendant. It was argued, on the assumption that the appellantcould not have a third share thrust on her against her will, that a wayout of the difficulty was to leave unallotted the third share which theplaintiff assigned to the appellant.
Express provision is made in section 26 (2) (f) of the Partition Actto enable the court to order that any share shall" remain unallotted.I am unable to hold that the legislature contemplated that in the circum-stances such as those proved in the present case, the court shall have lefta third share unallotted pending decisions in the connected eases. Undersection 25 it was the duty of the court to examine the title of each party.It might-, perhaps, have been more desirable if the case under appealhad been laid by pending the decision of the Negombo case but it is notat all unlikely that the parties and their legal advisers thought t-liatColombo was a more suitable forum from the point of view of conveniencethan Negombo or other outstation. The convenience of the forum ispretty evident. Admittedly on the death of the testator a third sharein the properties jointly devised passed to each of the daughters. Thecourt was invited to hold by the youngest daughter that her share in theproperty in suit was extinguished at a point of time somewhere about1947 or 1948. The court held against her on this point and it had now-no alternative but to declare that eacli of the sisters was entitled to a thirdshare.
I see no reason for interfering with the decree under appeal and Iwould dismiss it with costs.
TV4:hrasooriy.a, J.—I agree.
Appeal- dismissed.