080-NLR-NLR-V-20-NEELAKUTTY-v.-ALVAR-et-al.pdf
( 372 )
1918.
Present: Bertram A.C.J. and De Sampayo J.NEELAKUTTY v. ALVAR et «!.
57—D. C. Jaffna, 11,929.
Partitionaction—Decree entered by Court of Bequests—LandoverBs. 300
invalue—Is decree binding onpersons notparties totheaction f—
Jurisdiction—Judgment in rem.
Apartition decreeenteredbya Court ofBequestswithreference
to a piece of land exceeding Bs. 300 in value is not binding on aperson claiming aninterestinthe propertywho wasnota party
to the action.
T
HE plaintiff brought this action to set aside a final partitiondecree obtained by the defendants with respect to a land in
the Court of Requests of Point Pedro, in case No. 15,448, or torecover, in the alternative, damages consequent on the passing ofthe decree. He pleaded that the decree was obtained by fraud andwithout notice, and that the Court of Requests of Point Pedrohad no jurisdiction to enter the said decree, as the said piece ofland was worth in the year 1913, when the decree was passed, morethan Rs. 300.
The action was heard on the following preliminary issues: —
What was the value of the land in suit at the'date of theinstitution of Court of Requests, Point Pedmf No. 15,448?
If at such time the value of the land was qver Rs. 300, is itopen to this Court to treat the decree in the Court of Requestscase as not binding on this plaintiff?
Under the alleged circumstances, had this Court jurisdictionto declare the decree in the Court of Requests case asinoperative?
Is it open to this Court to declare the decree in the Court ofRequests case null and void?
The learned District Judge found that the land was worth overRs. 1,000, and answered the other issues of law in the affirmative.
Balasingham, for defendants, appellants.—A final decree in apartition action is conclusive and cannot be questioned, in spite ofthe provisions of section 44 of the Evidence Ordinance. Unless anobjection as to jurisdiction is taken in time it is deemed to be waived.The plaintiff in this case is deemed to have been a party to thepartition action, as the whole world is party to such an action. If- the Court bad tried an issue as to the value of the land raised by oneof the parties, and had wrongly come to the conclusion that the valuewas under Rs. 300, would it be open to the same person, or any other
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party, or even a person who was not a party, to”go behind thatadjudication in an action in the District Court? Although the issuewas not raised, it is deemed to have been raised and decided.. Everyobjection that may be taken is deemed to have been taken in a parti-tion case. No issue need be raised, as the case cannot be decided onthe agreement of parties, or only on such issues as the parties maychoose to place before the Court. The Court of Bequests certainlyhad jurisdiction to decide the issue as to value. It is “ competent ”to a Court to come to a wrong conclusion as to a right conclusion.
The words “ a court of competent jurisdiction ” in section 2 ofthe Ordinance mean competent to deal with partition cases. APolice Court or Supreme Court which has no original jurisdiction, or aCourt of Admiralty or a Village Tribunal, is not a competentcourt, because .they have no jurisdiction to try partition cases. Butwhere the objection to jurisdiction is one of value, or residence ofparties, or locality, the Court has a right to try the issue raised, andif it holds that the objection is unsound it may proceed to decreepartition. Otherwise, even if the value is found by the DistrictCourt to be Be. 1 over Bs. 300, the adjudication of the Courtof Requests may be ignored. Will partition decrees have anyconclusive effect if we can raise all these points after final decree?
Counsel cited Gaspersz on Estoppel, 466, 636, 732; 6 Weerakoon32; 4 C. W. B. 406; 12 Bom. 155; 7 All. 243; 7 W. B. 490.
Samarawickreme (with him Arulanandan), for the plaintiff,respondent.—Under section 44 of the Evidence Ordinance it is opento a party to show that a judgment was delivered by a Court notcompetent to deliver it. The section makes no exception in favourof partition decrees.
Section 2 of the Partition Ordinance provides that the action hasto be instituted in a court of competent jurisdiction. It is onlywhen the Court has jurisdiction that the decree will have theconclusive effect given to the decreee by section 9.
It was held in Puncha v. Sethuhamy1 that the fact that a landwas valued at Bs. 15 by a Village Tribunal was not conclusive asto the value when a case was instituted for the same land in theCourt of Requests.
Neither acquiescence or express consent of parties can conferjurisdiction upon a Court. See 9 Hahbury 13.
Balasingham, in reply.
Cur. adv. vult.
July 10, 1918. Bertram A.C.J.—
The question for decision in this case is whether a partition decreemade by a Court of Bequests with reference to immovable propertyadmittedly exceeding Bs. 300 in value is binding on a person
1918.
NeelakuUyv. Alvar
1 (1916) 19 N. L. R. 217.
( 374 )
1918.
BertramA.C.J.
Nedakutty0. Alvar
claiming an interest in the property who was not a party to theaction. It is a recognized principle of law that a decree purportingto be made by a Court of limited jurisdiction with regard to a matteroutside its jurisdiction is a nullity (see Attorney-General v LordHotham 1). The jurisdiction of a Court may be limited, either inrespect of area, or in resptct of value, or in respect of subject-matter,or in respect of a combination of all or any of these matters. Itdoes not seem to me that the authorities justify any distinctionbeing drawn between these various sorts of limitations. It may betaken therefore that, in view of the limitation of the Courts ofBequests jurisdiction with respect to value, the decree in a partitionaction made by a Court of Bequests affecting immovable propertyexceeding Bs. 300 in value is of no legal force.
. By section 44 of the Evidence Ordinance, No. 14 of 1895, it isexpressly provided that any party to a suit or other proceeding mayshow that any judgment, order, or decree, which is relevant underthe preceding sections, and which has been proved by the adverseparty, was delivered by a Court not competent to deliver it. Itwas contended, however, by Mr. Balasingham, who put the wholeargument in this important matter fully before us, that the principle' above enunciated in its application to the present case is qualifiedby section 9 of the Partition Ordinance, No. 10 of 1863. Section 44cf the Evidence Ordinance declares that a decree may be challenged,not only on the ground of the incompetence of the Court, but alsoon the ground of fraud or ,collusion. It is, nevertheless, expresslyheld by this Court that the effect of section 9 of the Partition Ordi-nance precludes any person from impeaching a decree of a Courtin a partition action, even on the ground that it was obtained byfraud or collusion. It is argued, therefore, that a decree in such anaction, by virtue of section 9, should be considered conclusive, evenwhere it is challenged on the ground of the incompetency of theCourt.
By Jshe express words of the section, however, the conclusive effectof partition decrees is limited to decrees “ given as hereinbeforeprovided,*' and one of the previous provisions of the Ordinance,namelyr' section 2, directs that the initial application to the Courtin partition proceedings shall be made ** to any Court of competentjurisdiction.” The effect of the words ” given as hereinbeforeprovided *' has been considered by this Court in a recent case,Jayawardene v. Weerasekera,2 and it was there laid down that theexpression “ given as hereinbefore provided ” referred only to suchessential steps as might be considered imperative, and not to suchprovisions of the Ordinance as were of a directory nature only. Ithink it is impossible, however, to treat the reference to thecompetency of the Court in section 2 as otherwise than imperative andessential.
1 (1827) 3 Russell 413.
* (1917) 4 O. W. R. 406.
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The effect of s partition decree under our Ordinanceris much thesame as a judgment in rem. I am much struck by the fact that inall references to judgments in rem, whether contained in statutoryenactments, or in text books, or in decided oases, the principle thatthe Court must be a Court of competent jurisdiction is alwaysinsisted upon (see the Evidence Ordinance, 1895. section 41; AmeerAli and Woodroffe on Evidence, page 275; and Caatrique v. Imrie l).The phraseology of our Ordinance is thus entirely in accordancewith that which is customary with regard to judgments of thischaracter. The phrase “ a court of competent jurisdiction is infact one of the keynotes of the Ordinance.
Mr. Balasingham, putting the same argument in another way,contended that “ all the world are parties to a partition suit, ” and- that, therefore, a stranger to the suit was in the same positlcn as aparty, and was estopped from disputing the judgment. With regardto “ all the world being parties to a partition suit,” IiOrd Mansfieldused a similar phrase with regard to, Admiralty actions: ” All theworld are parties to a sentence of a Court of Admiralty ” {Hughesv. Cornelius 2). This merely means that all persons, whether partiesto the suit or not, are bound by tne decree. But it must be a decreeof a competent Court. Moreover, there is no distinction for thispurpose between a party to the suit and a stranger. Even a partyto the suit is not estopped by the decree if the Court was not acompetent Court. It has been expressly held in the Indian Courtsthat a party to a suit is as much entitled to the benefit of section 44of the Evidence Ordinance as a stranger {Bajib Panda v. LakhanSendh 3). ' It is as open to any party to this very action to impeachthe validity of this judgment as it is to the plaintiff himself.
The case of Perera v. Babanis, 4 in which this Court declined toallow a party to a partition action in a Court of Bequests, afterpreliminary decree to impeach the jurisdiction of the Court, on theground that the property to be partitioned was over Bs. 300 invalue, must be regarded merely as an assertion of the principle thata Court cannot vacate its own judgment after it has been passedand entered.
The situation disclosed by this case is one which has probably notgenerally been realized. It means, in fact, that a partition decreemade by a Court of Bequests is liable to be impeached and invali-dated at any time by proof that at the date of the decree theproperty was more than Es. 300 in value. This is hardly in accord-ance with the policy of the Ordinance, and the point is one whichmay well receive the attention of the Legislature.
In my opinion the judgment of the District Judge is right, andthe appeal should be dismissed, with costs.
■ 1918.
BertramA.C.J.
Nedakuttyv. Alvar
1 (1869) L. R. 4 Eng. As Ir. App. 414.* 2 8. L. C. 80S.
(1899) I. L. R. 27 Cal. 11.
(1911) 6 Weer. 82.
1918.
Neelakutfyv, Alvar
( 376 )
De Sampayo J.—
I am of the same opinion. Mr. Balasingham in his argumentreferred to certain inconveniences which would arise from anydecision that a partition decree would be a nullity for want ofjurisdiction in the Court. The question of value might have beenraised in the partition case itself and decided against the objector,and it was asked whether it was right for another Court to decidethis question of fact in a different sense and go behind the decree.Again, the difference in value as found in the subsequent actionmight be slight, and was it tolerable that a party should be able toupset on such a ground an otherwise conclusive decree ? These areundoubtedly practical considerations which present some difficulty.But having considered the matter in the point of view of law, Icannot think that the decree of a Court without competentjurisdiction, whatever its effect might be as between theparties to it, could bind a stranger, such as the plaintiff in thisaction is.
Appeal dismissed.