The case is in certain respects suggestive of fraud by one or boththe parties in the Court below. As regards that aspect of the matter,Mr. J. S. Jayewardene, who appeared for the plaintiff-respondent,referred to such cases as Fernando v. Marsal Appu1; and as regardsnon-compliance with section 5 (supra), he quoted Jayewardene v.Wcerasekere*- as conclusive in his favour. In that case WoodRenton C. J. agreed with the view expressed by De Sampayo J., thatthe notice required by section 5 of the Partition Ordinance is primarilya notice to the parties and not to the world in general, and thatwant of such notice would not result in the partition decree beingset aside, the only remedy of a person deprived in such a case ofhis interest by the partition being the remedy in damages given by^ section 9 of the Ordinance. During the argument in Jayewardenev. Weeresekere (supra) no mention seems to have been made of thecases Catherinahamy et ah v. Babahamy et ahz and Sanehi Appu v.Marthdis,4 and they are not referred to in the judgments. In thelatter case Lascelles C.J. and Pereira J. held that parties cannotby agreement dispense with the appointment of a Commissioner,and Pereira J., in dealing with that point, said at page 298 :—
“ It seems to me that parties cannot avoid the appointmentof a Commissioner because unless a Commissioner wereappointed the procedure laid down in the proviso to section5 of the Ordinance as to the notice to the public cannotbe observed, and the reason for giving a conclusive effectto the final decree under section 9 of the Ordinance islargely referable to that procedure.”
In Catherinahamy v. Babahamy (supra) Hutchinson C.J. referredto the Commissioner giving “ public notice ” under section 5. Thematerial part of that section is as follows :—
“ Provided that the Commissioners shall, thirty days at leastbefore making such partition, affix on some conspicuouspart of the land, a written notice of the day on which they
(1922) 23 N. L. R. 370.3 (1908) 11 N. L. R. 20.
(1917) 4 C. W. R. 406.* (1914) 17 N. L. R. 297.
Branch C.J.
Paulu v.Rengishamy
( 262 )
Branch C.J.
Paulu v.Rengishamy
propose to make the same, and give further notice thereofby beat of tom-tom in the village or place where suchland is situated, and in such other manner as shall appearbest calculated for giving the greatest publicity thereto.”
The partition decree referred to in section 9 of the PartitionOrdinance is the final judgment under section 6 (see Catherinakamyv. Babdkamy (supra)), and I think that the preliminary notice undersection 5 is an essential and imperative step in the action. I regretI find myself unable to agree with the conclusion arrived at by WoodRenton C.J. and. De Sampayo J. in Jayewardene v, Weeresekere(supra), I think that when such a very important matter as thenotice under section 6 has been omitted altogether, as would appear tobe the case in the present action, it cannot be said that the decree forpartition has been given “ as hereinbefore provided ” (section 9) andthat the decree is good and conclusive against all persons whom-soever and relegates a party prejudiced by the partition to recoverdamages from the party or parties by whose act the damages hadaccrued.
It is to be observed that the Partition Ordinance provides nothingin the nature of an assurance fund out of which a person whothrough no fault of his own has lost land by the partition, may seekdamages, and if such a very important provision as that relating tonotice is to be disregarded, the gravest hardship might be causedin cases where the party responsible for the exclusion of a co-owneris a man of straw.
It happens sometimes too that the land itself carries a value tothe owner much in excess of the amount of damages recoverablein respect of its loss, and if the publicity given by a notice such asthat prescribed by section 5 can be avoided and the resulting decreeholds good, the door will be opened to fraud and collusion with noadequate remedy at hand. It must be understood that there is nosuggestion in the case that the Commissioner was concerned in anyfraud or collusion, and, indeed, no facts have been proved bringinghome fraud to anyone.
In my opinion, therefore, the notice required by section 5 is a noticeto the public, and not to the parties only, and in a case like thepresent it is impossible to ignore its absence. On that ground Iwould set aside the decree of the District Court of June 12, 1925,and remit the case for further inquiry and adjudication.
As regards the second point of appeal, I think that the land inrespect of which the final decree was entered is substantially thesame as that proposed for partition. The facts in this case arenot the same as those which influenced the decision in Jayasekerev. Perera,1 but I think they add point to the argument on the first
1 (1923) 26 N, L. R. 198.
( 263 )
ground. So far as I can see, the deeds on which the parties reliedin the Court below have not been proved as required by the CeylonEvidence Ordinance, 1895, and this point will no doubt receiveattention in the further inquiry.
The appellant should, I think, have the costs of this appeal; thecost of the proceedings in the Court below being left in the discretionof the learned District Judge.
Maabtbnsz A.J.—
The intervenient-appeUant in this action appeals from an orderof the District Judge refusing to allow him to intervene in the actionwhich is one for the partition of a land called Galpotte-elamanana.
The order refusing the application is as follows:—“ I have nopower to do this.”
This order is quite right, as final decree was entered in the actionbefore the application to intervene was made.
The intervenient moves this Court to set aside the final decreeeither by way of appeal or in revision on the following grounds :—
That the land in respect of which the interlocutory decree
was entered is not the same as the land in respect of whichthe final decree was entered.
That the Commissioner who carried out the commission has
not complied with the provisions of section 5 of thePartition Ordinance, No. 10 of 1863.
The first objection is not one which I would uphold in the circum-stances of this case. The plan filed with the plaint, which depictsa land 5 acres 3 roods and 3*55 perches in extent, is clearly anincomplete plan, and the difference in area of about acres wasto be expected.
The land is substantially the same, and the difference in areadoes not prejudice the intervenient. Other considerations wouldarise if the intervenient had claimed a share out of the extra 1£ acreson the ground that it was a land, or formed part of a land, otherthan the land Galpotte-elamanana.
The second objection is a more serious one. It is clear from theproceedings themselves that the Commissioner has not compliedwith the provisions of section 5 of Ordinance No. 10 of 1863.
The proviso to section 5 provides as follows :—
“ . . – – Provided that the Commissioner shall, thirty daysat least before making such partition, affix on someconspicuous part of the land a written notice of the day onwhich they propose to make the same, and give furthernotice thereof by beat of tom-tom in the village or placewhere such land is situated, and in such other manner asshall appear best calculated for giving the greatest publicitythereto.”
Branch C. J.
Paulu v.JRengUhamy
( 264 )
Paulu t».RcngMamy
In this case the commission issued to the Commissioner on March13, 1925. The plan was, on the face of it, made in pursuance ofthis commission on April 4, 1925. The Commissioner, if he gaveany notice at all, of which there is no evidence, at the most gaveonly twenty-one days’ notice of the day on which he intended topartition the land.
The appellant's contention is that the final decree is thereforenot conclusive, as it is not a decree given as “ hereinbefore provided."(Section 9.)
The notice which the proviso to section 5 requires has been thesubject of judicial decisions and comment.
In the case of Catherinahamy et al. v. Babahamy et al. {supra), thequestion at issue was whether the final decree referred to was thedecree made under section 4 or the decree made under section 6.
Hutchinson C.J. held that the final decree was the decree madeunder section 6, and remarked that “ if the Legislature intendedthe decree under section 4 to be the final decree, there would havebeen no object in the provisions of sections 5 and 8 requiring theCommissioner to give public notice of the proceedings. (Section 8refers to decree Where a sale has been ordered.)
The final decree was entered up by the District Judge withoutreference to a Commissioner, in Sanchi Appu v. Marthelis (supra).An informal partition agreed on by the parties before the actionbeing adopted as the scheme of partition. One of the parties whowas not agreeable to the scheme appealed. Pereira J., in settingaside the decree, said :—
‘1 …. Unless a Commissioner were appointed the procedure
laid down in the proviso to section 5 of the Ordinance asto notice to the public cannot be observed, and the reasonfor giving a conclusive effect to the final decree undersection 9 of the Ordinance is largely referable to thatprocedure.”
In neither case was the question whether the notice was anessential step in the proceedings directly in issue, as in the case ofJayewardene v. Weeresekere (supra). In the last mentioned case itwas held that—
“ The provision in section 5 of the Ordinance requiring thepartition Commissioner, before partitioning the land, togive notice of the day on which he proposes to do so, hasregard only to the parties to the action who have alreadybeen declared entitled to shares by the preliminarydecree.”
( 265 )
It was further held that—
“ The object of the notice is to enable those parties to be presentat the actual partitioning of the land and raise objections,and not to give general information to the world at largeof the pendency of the proceedings, and that the provisionis directory and is not a condition precedent to the con-clusive character of the final decree under section 9. Theexpression “ decree given as hereinbefore provided ” washeld to have reference to such essential steps as investi-gation into the title, the order to partition the land, andthe allotment of shares in severalty accordingly to theCommissioner’s report …
Paulu v.Rengishamy
I venture to think that in the case of Jayetvardene v. Weeresekere{supra) too narrow a view was taken of the scope of the noticerequired by section 5.
(Section 9 of the Ordinance provides that—
“ The decree for partition or sale given as hereinbefore providedshall be good and conclusive against* all persons whom-soever, whatever right or title they have or claim to havein the said property, although all persons concerned arenot named in any of the said proceedings, nor the title ofthe owners nor of any of them truly set forth, and shallbe good and. sufficient evidence of such partition and saleand of the titles of the parties to such shares or interestsas have been thereby awarded in severalty.”
The only remedy a person has, who has been prejudiced by suchpartition or sale, is an action for damages.
I would therefore expect the Ordinance to make provision forgiving public notice of the pendency of the partition action. Theonly sections which provide for such notice are, in the case of adecree for partition, section 5 and, in the case of a sale, section 8.
If the Legislature intended this notice to be a notice inter parties,it need only have provided that the Commissioners should give suchpaj tics notice by a writing under their hand.
The section, however, provides in imperative terms that a noticeshould be affixed on the land, and that further notice should be givenby beat of tom-tom in the village or place where the land is situated,and in such other manner as shall appear best calculated for givingthe greatest publicity thereto.
I find it impossible to ignore the terms of this section, and I am ofopinion that the notice was intended to give the public notice ofthe intended partition, so that any body affected thereby, whetherhe be a party or not, might intervene before the final decree wasentered.
( 266 )
Paulu v.Pengiskamy
My opinion is confirmed by the fact that under section jB a noticehas to issue to the parties before the partition proposed by theCommissioner is confirmed.
It is I think incumbent on a party to a partition action to seethat every necessary Btep is taken in the action, if he wishes to relyon the conclusive character of the decree, especially as it has beenheld that a final decree in a partition suit cannot be set aside evenon the ground that it had been obtained by fraud and collusion.I need only refer to the case of Fernando v. Marsal Appu {supra).
The conclusive character of the final decree in a partition actionhas been of the greatest value in settling title to land, and I wouldhesitate to whittle down the effect of such a decree ; but where, asin this case, the notice is in the face of the proceedings defectiveand no transactions have taken place on the faith of the decree, Ithink the application to set aside the decree should be granted.
I accordingly set aside the decree of the District Court datedJune 12, 1925, and remit the case for further inquiry and adjudi-cation.
The cost of such proceedings to be in the discretion of the DistrictJudge. The appellant should, I think, have the costs of appeal.
Set aside; case remitted.