MUDIYANSE et al. v. SILVA et al

023-NLR-NLR-V-19-MUDIYANSE-et-al.-v.-SILVA-et-al.pdf


1916.
( 120 )
Present: Ennis J. and Schneider A.J.
MUDIYANSE et al. v. SILVA et al.
230—D. C. Ratnapura, 2,212.
Co-owners—Action by one co-owner against another co-owner for declara-tion of title—Joinder of other co-owners.
r
One of a number of co-owners cannot sue one or more of hisco-owners either for possession or declaration of title or in eject-ment without making all the other co-owners parties to theaction.
rjl HE facts are fully set out in the judgment.
R. L. Pereira, for defendants, appellants.—All the co-owners arenot before the Court. It is difficult to find out the exact shares ofthe plaintiffs and defendants in the present state of the pleadingsand evidence.
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The plaintiffs should have brought a partition action; or theyshould have at least joined the other co-owners as parties to thisaction.
O.Koch (with him A. Drieberg), lor the respondent.—The objec-tion as to non-joinder comes too late. The defendants must be takento have waived the objection. See Civil Procedure Code, section 22.The other co-owners would not be bound by this judgment, andwould not, therefore, be prejudiced. They do not dispute theplaintiffs’ share.
It is not well settled that all the co-owners shojuld be joined in anaction like this. See 1 Br. 340. The Court may send the case backfor joinder of all parties if necessary.
Cur. adv. vult.
July 5, 1916. Schneider A.J.—
In this action the plaintiffs pray to be declared entitled to anundivided share of a land, and to be “ placed and quieted in thepossession thereof. ” There is no prayer for ejectment. But as anouster by the defendants from the entirety of the shares claimed ispleaded as the cause of action, I shall assume that the plaint alsoprays by implication that the defendants be ejected from thepossession of these undivided shares. Counsel on both sides'admitted at the argument of this appeal that there were co-ownerswho are no parties to this action. But for the purpose of theapplication of the law, and to indicate the complicated nature of thetitle on both sides, I shall refer briefly to the devolution of the titleas developed by the allegations in the pleadings and the admissionsat the trial. The land is said to have originally belonged tothree brothers, Sahanda, Kirisanda, and Pinsanda. The entirety ofKirisanda’s one-third is claimed by the first plaintiff by right ofpurchase. According to the plaint, Pinsanda's one-third, as also-Sahanda’s one-third, devolved by intestate succession on the fivechildren of Sahanda, viz., Kiribinda, Guneya, Batta, Malbinduwa,and Setu. At the trial it is recorded that one of these children—Batta–had no children. I believe that what was meant by thiswas that his share devolved on his four brothers and sisters. Oneof these four—Guneya—died intestate, leaving five children, viz.,Pinsetu, Kirihatana, Kalu Heena, and Babonchi. One of the-others-—Setu—is alleged to have died leaving four children, viz.,Hopi, Eirilamaya, Babi, and Batti. Besides Kirisanda’s one-thirdthe first plaintiff claims 5/36 by purchase from Pinsetu andBabonchi, alleging that Pinsetu had acquired a 1/18 from his sisterSetu by purchase. Thus, according to the plaintiffs, the sharesof Kiribanda, Malbinduwa, Kirihatana, Kalu and Heena, and aportion of the shares of Setu are unaccounted for. But the -first
1916.
Mudiyanee
v. Silva
( 122 )
1916.
SchneiderA. J.
Mudiyaneev. Silva
defendant claims Kiribinda’s and Malbinduwa’s shares, as alsothe’ shares of three of the children of Setu. Thus, according toboth parties, there is still outstanding the shares of two of thechildren of Guneya and of one of the children of Setu. Theseshares are not claimed by any of the parties to the action, and yetthe plaintiffs claim 1/3 plus 5/36, which are equal to 17/36, thedefendants 1/4 plus 13/36, which are equal to 22/36, and the addeddefendant 1/6, which are equal to 6/36. These shares total 45/36.This shows decisively the overlapping of the claims. As regardsKirisanda’s one-third, there is a triangular contest, the first plaintiff,the intervenient Gomes, and the defendants, all claiming it;according to the defendant, Batti, a child of Setu’s, who is no partyto this action, having also a share. The plaintiffs, the addeddefendant, the defendants, and the intervenients are all at . varianceas to the shares which devolved upon Sahanda’s descendants, andyet two_ of them are not parties to this action. The learned DistrictJudge holds that the plaintiffs are entitled to 41/90. He makes no•adjudication upon the claims of any of the other parties, althoughthere was an added plaintiff, an added defendant, and an inter-venient. He says: “ I cannot in the present case decide the rightsof all the co-owners, nor' can I apportion the buildings. If theparties wish these points to be decided, they must institute apartition action. ” Even as to the subject-matter of the action—whether it consists of one or of two lands—the parties are atvariance.
It is obvious on the pleadings, and now on the findings of thelearned Judge, who tried some of these issues, that this is essentiallya case where the well-established rule should have been enforced,that one of a number of co-owners cannot sue one or more of his<co-owners, either for possession or ’declaration of title or in ejectment,without making all the other co-owners parties to the action. Ithas been held that such joinder is not necessary to enable oneno-owner or some of them jointly to sue a stranger trespasser, as,for instance, in Mohammadu Ismail v. Don Andris1 and Gassy hebbeMarikar v. K. Baba,2 to name two among other cases.
For the last forty years the necessity for the joinder of co-owners.. has been consistently insisted on, and referred to in a large numberof cases. To cite a few. In the case of Uduma hebbe v. Mohidin 3Thear C.J. held that all the co-owners should have been partiesfor two reasons: (1) Because the ouster alleged, viz., the denial of"the plaintiffs' share of the produce at the periodic distributionamong the co-owners involved all the co-owners, and not only thedefendants; and (2) that as the possession was not several, no•decree declaratory of title could be passed between the plaintiffs and
i (1885) 7 S. C. C. 48, 87,2 (1885) 7 S. C. C. 97, 182.
3 2 S. G. C. 148.
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the defendants without immediately effecting all the co-sharers intheir possession. But, apart from these two reasons, which wereimmediately concerned with the particular facts of that case, heproceeded to say:“ No doubt recourse may often be usefully had
to the Court for the determinating of any question, which has bonafide arisen between the owners in regard to the relative proportionsof their shares without the Court being called upon to deal withthe actual possession at all; but even in that case, it is essentialthat all the co-owners should be before the Court. " Note thewords “ it is essential. *’ The principle so laid down was reiteratedin no unequivocal terms in 1866 by the judgment of the Full Bench,consisting of Burnside C.J. and Bias and Clarence JJ., in thecase of Passivee Appuhamy v. Liana. Appu.1 Burnside C.J. dis-sented from the other members of the Bench, but it appears to methat he misunderstood the second of the reasons given by Phear C.J.He read it to say that the decree would bind the other co-ownerswho were no parties to the action. But what Phear C.J.did say was that the enforcement of the decree would affectthe other co-owners in their possession, for the reason, I take it,that if these co-owners do not admit the correctness of the sharesdecreed, the possession, whether by division of fruit or by separateportions of land or trees, is disturbed by the declaration in thedecree.
Bonser C.J., in the case of Amolisa v. Dissan,2 in 1900, quotedwith approval, and followed the principle, that all the co-ownersshould be parties. He also indicated that section 12 of the CivilProcedure Code applied only to cases against stranger trespassers,and did not repeal the practice requiring all the co-owners to bebefore the Court.
Bonser C.J. and Lawrie J., in 1901, in the case of Banesinghe v.Cooray,3 recognized the validity of the principle requiring joinderof all co-owners.
In 1908, in the case of Perera v. Fernando * Wood Renton andWendt JJ. followed the same principle.
It will .be thus seen that the rule had been recognized and con-sistently followed by several Judges of this Court. I do not regal'dthe decision of De Silva v. De Silva,3 in 1900, as in any way anauthority for the proposition that all the co-owners need not be-joined. For one thing I am unable to follow the reasoning in it.But it is clearly of no authority, being the judgment of a single-Judge as against the Full Bench decision already referred to by me.Now the reason for the rule of the Roman-Dutch law requiringjoinder of all the co-owners is well founded. J. cannot do better
® (1901) 2 Br. 20.
4 (1908) 2 N. L. R. 48.
1916.
Schneider
A.J.
Mudiyansev. Silva
1 (188G) 1 S. C. C. 190.
-’ (1900 ) 4 N. L. R. 163.
s (1900) 1 Br. 340.
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1916. than quote Mr. Berwick, the then District Judge of Colombo, inSchneider action No. 84,120 of his Court.1 He says the rule is “ a corollaryA. J. from the general principle that one who seeks to recover an inherit-Mudiyanae ance, or his share of it, measures his action, not by what then. Silva possessor is occupying, but by his own rights; and these rights in acase of this kind are necessarily confused with those of all the other.co-owners, who must, therefore be affected by any measurement of.the extent of his and of every separate .co-owner's right; whilereciprocally his rights are to be measured by those of each of them.It must be remembered also that these pro indiviso shares are notreal, but purely ideal divisions; and that there can be no separatematerials or physical possession of these ideal divisions. Theymay find their practical effect in the actual division of the produceof the soil in corresponding proportions, or in their enjoyment byactual occupation of physically separate and distinct portions ofthe . soil for mutual convenience and by mutual arrangement; butthis possession, or rather this mode of enjoying the common property;by its division into portions, does not imply any legal title to the
occupation of such portions in severalty "Keeping in
view the purely ideal nature of these pro indiviso shares, and thefact that any physical possession of separate portions by metes andbounds is, until a partition has taken place, a mere matter of•arrangement as to the mode of enjoyment of common rights, whichany one of the co-owners may at any time put an end to, it followsfrom the very nature of pro indiviso ownership that if my co-heiris in the physical occupation of more of the common property thancoincides with his ideal share, he must be occupying as such surplus,not merely n part of what permanently belongs to me, but whichpermanently also belongs to every one of our co-owners in commonwith me. If I am entitled to an ideal one-sixth, but in thedistribution of the temporary mode of enjoying the common whole-am only permitted to occupy one-twelfth of the substance, I cannotinsist on any redistribution of the occupation, nor can I seize andseparate off for my own occupation, in severalty, any otherparticular part of the common whole large enough to make upwhat corresponds in physical extent to the proportion of my proindiviso or ideal right. My only remedy is to claim partition, andthus transform ideal shares into physical ones. And it follows fromthis, not only that so long as there is no partition no determina-tion can be come to as to what and what I shall physically occupyby mutual arrangement in lieu of my ideal share without thecorresponding possession of every other co-owner being affected,but also that no determination can be come to as to the extent inownership of my pro indiviso ideal share without the extent in“ ownership of every other co-owner’s pro indiviso and ideal sharebeing also affected. And, therefore, I must claim to .have my
1 (1882) 1 Br. App. C. iv.
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«hare of the common estate made up, not from the share of one,■but from the shares of each of my co-heirs or co-owners; in a word,must sue not one, but ail for each atom, so to speak, of the deficiency;for each atom is the common property of all. Therefore, all mustbe joined in an action of the nature of the present. ”
But since the coming into operation of our Civil Procedure Code-there is added a further reason why the practice of the Roman-Dutch law should be followed. I mean the provisions in section 18of the Code, which gives a Court wide power to bring into action^nv person ” whose presence before the Court may be necessary inorder to enable the Court effectually and completely to adjudicateupon and settle all the questions involved in the action be added.”This section corresponds with the language of Rule 11, Order xvi.,as pointed out by Withers J. in Meedin v. Banda.1 I wouldrepeat here that passage from the judgment of Lord Esher, M.R., inthe case of Bryne v. Brown* cited by Withers J.: —
” It seems to me to be the fundamental principle that one of thechief objects of the Judicature Acts that wherever a Court can seein the transaction brought before it that the rights of some of theparties may, or probably will, be affected, so that under the former.system of law there might have been several actions brought inrespect of the same transaction, the Court shall have power tobring all the parties before it and determine all their rights by onetrial.
‘ ‘ The evidence of the issues raised by new parties being broughtin need not be exactly the same. It will be enough if the main partof the evidence or of the inquiry will be the same, and the Court haspower to bring all the parties before it and to determine the matterin one action.
“ Another great principle of the Judicature Acts was to diminish,if possible, the cost of litigation. The Court ought, therefore, toconstrue these Acts as largely as it can, in order to carry out, as faras possible, those objects to which I have referred.
I have considered the question whether this case should beremitted to the lower Court to enable the parties to rectify theomission to join the outstanding co-owners, and have come to theconclusion that to do so would serve no useful purpose. The plaintand the answer are not satisfactory, as title is not properly set outin them. I therefore think the most satisfactory order to make inthe circumstances is to dismiss this appeal, as also the whole ofplaintiffs’ action, without prejudice to his right to bring anotherAction on the same cause of action. As the other parties are equally i
i 1 N. L. R. 51.* 58 L. J. Q. B. 411.
1916.
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A.J.
Mudiyanstv. Silva
( 126 0
1916.
Schneider
A.J.
to blame with the plamtifis, inasmuch as no objection was takenby them to the constitution of the action, I order that all the parties-do bear their own costs.
Mudiyanse
v. Silva Ennis J.—I agree.