PERIS et al. v. PERERA et al.D. C., Colombo, 4,981 jG.Partition—Ordinance No. 10 of 1883, et. 4, 8, 9—Interlocutory judgment inaction for partition—Final decree, effect of—Duty of Court in partitionsuits—Proof of title of co-oumers—Adding parties—Proceeding whereall co-ownert cannot be ascertained.
The effect of section 9 of Ordinance No. 10 of 1863 is to give personstaking title under the decree in an action for partition nnder thatOrdinance a title good against the trne owner, bnt the decree referred'to in that section is not the interlocutory decree of partition nndersection 4, bnt the final judgment nnder section 6 awarding shares inseveralty, and entered after receipt of the return of the commissionfor partition.
The Court should not regard a partition suit as one to be decidedmerely on issues raised by and between the parties, and it ought not tomake a decree, unless it is perfectly satisfied that the persons in whosefavour the decree is asked for are entitled to the property sought to bepartitioned..
After the Court is satisfied that the plaintiff has made ont his title tothe share claimed by him, it should direct yiquiries to be made whetherall the parties interested in the land are parties to the action, or havebeen served with notice, and, on being satisfied on these points, ordera partition or sale.
If all the parties cannot be found, the Court may allot severallythe shares of the persons who have proved their rights to them, and may
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sell the remainder of the lend, retaining the balance of the purchase 18M.money, after payment thereout of a proportionate share of the coats of April 1 sadthe action, until the owners come forward and prove their title to it.t.
Dictum of Pheab, C. J., in Auena Uarikar v. Utubu Lebbe, 1 8.C.C.
Per B0N8EK, G.J.—(1) The District Judge should take care thatthe inquiry in a partition suit is not a perfunctory one. It is onlyafter he is reasonably satisfied that all the owners who can be found areparties to the action, using, if neoessary for the purpose, the powergiven him by section 18 of the Civil Procedure Code, that he shouldmake hia decree declaring that the parties are entitled to certain shares,and directing a partition or sale, as the case may be.
(2) An interlocutory decree for partition under section 4 of the Ordi-nance, unless proceeded with, is useless for any purpose. It could noteven support a plea of re* judicata. Where such an interlocutory decreehas been made, and not proceeded with, section 402 of the CivilProcedure Code should be applied by the Court, and its rolls clearedof the action.
Per Withers, J.—Claimants of shares who may have had notice ofthe proceedings only when the commissioner had taken steps to preparehis return should be let in, and their claims inquired into even if itBhould happen that they purport to modify the interlocutory judgmentas to the shares of the actual parties to the record. After hearing thenew claimants and the former parties, the Court may reform its inter-locutory judgment.
LAINTIFFS claimed an undivided three-fourths share of
certain lands by right of inheritance from one Naide.They averred in their plaint that the defe ndants -were entitledto the remaining fourth, and prayed for a partition of the landsbetween them and the defendants. The lands originally belongedto one Adohami and his wife Bancho. Adohami died leavingfive children, two sons and three daughters; and the plaintiffsaverred that the two sons possessed the lands to the exclusionof the daughters. Naide was one of those two sons. Banchogifted her half to Naide, and he and his brother Simitchi thusbecame entitled to the entirety of the lands in the proportion ofthree-fourths and one-fourth. Naide died leaving eight children,six daughters and two sons—to wit, the two plaintiffs; and theplaintiffs alleged that they possessed the three-fourths share towhich Naide was entitled to the exclusion of their sisters. Thedefendants, they averred, were, as the descendants of Simitchi,entitled to the remaining fourth. Certain added parties to theBuit claimed a divided portion of thq lands. The District Judge,after trial, rejected their claims, and decreed a partition as prayedfor in the plaint. •
Tho added parties appealed.
Dornhorst and Jayewardene, for appellants.
Wendt, for plaintiffs, respondents.
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1896. The case was first heard before BONSER, G.J., and Lawrie, J.,8 ^ **ut waB Bet ^own ^or re-liearing before the Full Court.
—Cur. adv. vult.
Their Lordships were of opinion that the descendants of theplaintiffs’ paternal aunts, to wit, the three sisters of Naide, andthe plaintiffs’ own six sisters, should have had notice of this action;and in remitting the case for further inquiries as to the personsinterested in the lands and their respective shares, deliveredthe following judgments.
8th May, 1896. Bonser, C.J.—
I agree in the judgment which will be read by my brother .Lawrie, but I desire to add a few observations on these actionscommuni dividundo for the assistance as well of the DistrictCourt to which this case is remitted, as of other inferior courtswho may have to dispose of Bimilar actions. The common lawof this Island following the civil law, but therein differing fromthe English common law, held that nemo in communione com-pellitur invitus detineri. Hence the actions families erciscundceand communi dividundo, the former having application to thecase of co-heirs and the latter to the case of co-owners who hadbecome so otherwise than by inheritance.
In 1844 Ordinance N o. 21 of that year was passed, which, afterreciting that “ the undivided possession of landed property is“ productive of very injurious consequences to the inhabitants of“the Colony,” proceeded to enact (inter alia) and declare that“ when any landed property shall belong in common to two or“ more owners, it is and shall be competent to any one or more of“ such owners to compel a partition of the said property, and for“that purpose to present an application to any District Court“ having jurisdiction praying for a partitionthereupon the Court
was to have power to issue a commission (section 10). Thecommissioners were required to make a partition, and for thatpurpose to prepare a schedule “showing the name, situation,“ extent, and estimated value of the said property; the names of“ the owners; the nature and extent of their respective shares or“ interests; and the mode in which the commissioners propose that“ such partition should be made.” A copy of this return was to begiven to each owner, and the original wqp to be returned to theCourt with a survey (section 11).
Within three months after the return of the commission a daywas to be fixed on the motion of any party for deciding on theapplication for partition ; and if on that day the owners or their
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representatives appeared, and no valid objection was made to the 1896.return; and if any of them were absent and the Court was satisfied
that notice of the application had been given them, or if they
could not be found, then to the persons in actual possession of Bo5BX*>c,Jlthe property, the Court might decree a partition, and that decreewas to be good and conclusive against all persons whatsoever(section 12).
Provision was also made for a sale in cases where a partitionwould be injurious or impossible (section 15).
By Ordinance No. 11 of 1852, which recited that the provisionsrelating to the partition and sale of lands held in common hadbeen found to be attended with inconvenience, and to be in somerespects injurious to parties interested in such property, thoseprovisions were repealed, and co-owners were remitted to theirrights of partition under the common law.
This state of things lasted until the passing of Ordinance No. 10of 1863, which now governs these actions. That Ordinance, afterdeclaring the common law right of co-owners to compel apartition or sale of the joint property, laid down a new procedure.
The person desiring a partition or sale is to file a libel describingthe property and specifying the names, residences, and interestsof the co-owners, and the improvements made by them so far asknown to him, and praying a partition or sale, as the case may be.
A summons is then to issue to the parties named by the plaintiff,calling on them to appear and show cause why a partition or saleof the property should not be decreed; and such summons is to beserved on the defendants, or1 if any of them cannot be found, thenon the person in possession; or if there is no person in possession,then in such manner as the Court may direct. If the defendantsmake default, then the Court is to hear evidence in support of theplaintiff’s title, and the extent of his share and of the title of thedefendants, and the extent of their respective shares so far as maybe practicable by any ex parte proceeding, and if the plaintiff’ stitleis proved, to give judgment by default decreeing partition or sale.
If the defendants appear and dispute the plaintiff’s title, or claimlarger shares than the plaintiff gives them, the Court is to examinethe title of all the parties interested, and to decree a partitionor sale.*
When the interlocutory decree for partition has been made, theCourt may, on the application of any party to the suit, issue acommission to a commissioner or commissioners to make partitionof the land, adjudging to each owner his proper share. Thecommissioners are in the presence of the parties to make thepartition according to the ascertained proportions of the several
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owners, and make a return accompanied by a survey, as wasprovided in Ordinance No. 21 of 1814.
The commissioners however are, thirty days before they maketheir partition, to fix in some part of the land a written notice ofthe day on which they purpose to make the partition, and alsoto give further notice by beat of tom-tom or otherwise in mannerbest Calculated for giving the greatest publicity thereto.
This provision seems intended to give notice to all persons whomay be interested in the land, and who may not be parties to theproceedings of what is being done, so that they may intervene inthe suit if so advised. After the return of the commission theCourt is to fix a day for considering the return, when the ireturnwill either be sent back for amendment, Or may be confirmed with 'or without modification, in which latter case final judgment forpartition will be entered.
This Ordinance, like the former Ordinance, enacts (see section 9)that the decree for partition or sale is to be good and conclusiveagainst all persons whomsoever, whatsoever their rights may be,and whether they are parties to the proceedings or not, but itgives persons injured a remedy against the party by whose actsthey have been damaged.
It has been held by this Court (Don Carolis v. Watta Baba,78.0. C. 125) that the effect of this section is to give the persons whotake title under the decree a title good against the true owner.It is not necessary now to decide whether this decision is rightor not; but having regard to the whole scope of the Ordinance andto the provisions as to the publicity, I incline to think that it is.It iB in the highest degree desirable that a title given by the Courtshould not be impeachable, and that purchasers and mortgageesshould be able to deal safely with the persons declared by theCourt to be the owners. At the same time I venture to doubtwhether the decree of partition referred to in section 9 is theinterlocutory decree of partition, as seems to have been the opinionof PHEAR, C. J. (see Assena Marikar v. Usubu Lebbe, 1 S. G. C. 19).This was merely a dictum, for it was not necessary for thedecision of the case. Section 9 appears to me to refer to the finaljudgment in each case. In the case of a partition it is to be ajudgment by which shares ape awarded in severalty. Now, theinterlocutory judgment for partition does not award any sharesin severalty. It merely declares that the* parties are entitled tocertain undivided shares, and directs the commissioners to partitionthe land. It is the final judgment which awards the shares inseveralty. These provisions appear to be borrowed from theEnglish Act, 8 and 9, William III., chap. 31, which was the last
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English Act dealing with partition at the dates of the passing ofthe Ceylon Ordinances.
That Act provided that the final judgment was to include allpersons, though not named in the proceedings; but a year wasallowed within which a claimant could come in and apply to havethe judgment set aside. That Act was repealed in 18G7, andproceedings in partition in all English Courts are now governedby the Partition Acts of 1868 and 1876. It is to be regretted thatthe Legislature of this Island has not thought fit to legislate onthis matter since the passing of these Acts.
It is to be observed that no conveyances are required, as in thecase of partition made by the English Court of Equity. The party■gets his title from the decree of the Court, awarding him a definitepiece of land. So Justinian lays down : Quod autem istis judiciisJudiciis Communi Dividundo) alicui adjudicalum sit, idgtatim ejus fit, cui adjudicatum est. (Institutes, 4, 17, 7.)
Whether or not the judgment be binding on the true ownerwho is not a party to the suit, it is obvious that the Court oughtnot to make a decree, except it iB perfectly satisfied that thepersons in whose favour it makes the decree are entitled to theproperty. The Court should not, as it seems to me, regard theseactions as merely to be decided on issues raised by and betweenthe parties.
The first thing the Court has to do is to satisfy itself that theplaintiff has made out his title, for, unless he makes out his title,his action cannot be maintained; and he must prove his titlestrictly, as has been frequently pointed out by this Court.
When he has done this, he has proved his right to maintain theaction. The next step, according to the practice of the EnglishEquity Courts, would be to make a decree directing inquiries tobe made, whether all the parties interested in the land were partiesto the action, or had been served with notice of the decree, andin that case ordering a partition or sale. I think that practiceshould be followed as nearly as may be. Section 508 of the CivilProcedure Code makes provision for inquiries of this kind.
Collusion between plaintiffs and defendants is always possiblein these cases, and therefore the District Judge should take carethat the inquiry is not a perfunctory one. It is only after he isreasonably satisfied that all the owners who can be found areparties to the action, using, if necessary, the power given him bysection 18 of the Civil Procedure Code, that he should make hisdecree declaring that the parties are entitled to certain aliquotshares, and directing a partition or sale, as the case may be. Itwould be desirable that where practicable the decree should be
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April 1 andHay 8.
Bonbkb, C. J.
prefaced with each a declaration as follows:—“ It appearing that“ all persons entitled to or interested in undivided shares in the“ land in the plaint described are parties to the action.”
If all the parties cannot be found, I think that the Court mayallot severally the shares of the persons who have proved theirrights to them, and may sell the remainder of the land, retainingthe balance of the purchase money after payment thereout of aproportionate share of the costs of the action until the ownerscome forward and prove their title to it.
In considering whether it should make a final decree for sale*or merely an interlocutory judgment for partition, the Courtmust take into consideration the circumstances referred to in theproviso to section 4 of the Ordinance. It is obvious that in the-majority of cases a sale will be more beneficial to all parties. Iwould add, in conclusion, that an action under the PartitionOrdinance cannot be made—as I suspect is not infrequentlyattempted—a substitute for an action rei vindicatio. An inter-locutory decree for partition, unless proceeded with, is uselessfor all purposes. It would not even support a plea of res judicata.Where such an interlocutory decree has been made, but notproceeded with, provisions of section 402 of the Civil ProcedureCode should be applied by the Court and its rolls cleared of theaction.
I also agree with the judgment of my brother LAWRIE. I havehad the further advantage of reading the Chief Justice’s judg-ment, and my Lord’s observations on the procedure of partitionactions have my hearty concurrence.
The importance of the subject induces me to add a few observa- „tions of my own. A plaintiff who has an interest in the soil and 'trees of a land in common with others, and desires to procure apartition or sale of the premises, may not know who all theco-owners and mortgagees of a land are. It goes without sayingthat he should do his best to ascertain who they are before hecomes to Court. If the shares of the co-owners of soil and treesnamed in his libel do not ex facie exhaust the land, the Court,before making any order qjf partition or sale, should in myopinion by notice and advertisement, or in Buch manner as theCourt thinks best for the purpose, endeavour to procure theattendance of all who claim to have common interests in the land.
This course should be followed where, after inquiring into theclaims of the plaintiff and the defendants named in the libel, theparties are not found to own the entire land between them.
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If it bo happens that all the co-owners of a land cannot he 18W.ascertained, and that land is one proper to be partitioned, then in
my opinion the Court is entitled to divide amongst the claimants
according to their shares so much of the land as those shares’
amount to, and to order the sale of the unassignable parcel, thenet proceds thereof being reserved for possible claimants on thefund. If the entire land ought to be sold, then the net balanceof the sum equivalent to the unascertained shares will be reservedin the same way.
So much for cases in which all the co-owners of a land cannotbe discovered before the judgment on the return to the commis-sion for partition or sale, which is the final and conclusivejudgment in theBe actions.
h Considering that the final judgment binds others than theimmediate parties to the partition suit, claimants to shareswho may have had notice of the proceedings only when thecommissioner has taken steps to prepare his return should belet in and their claims inquired into, even if it should happenthat they purport to modify the interlocutory judgment aB tothe shares of the parties to the actual award. After hearingthe new claimants and the former parties it may be that theCourt will have to re-form its interlocutory judgment. Thiscourse seems to me to be in harmony with the provisions ofthe 18th section of the Civil Procedure Code. It is the para-mount object of the Court in these cases to ascertain who areall the co-owners of the particular land sought to be partitionedor sold.
Again, it can hardly be too often repeated that unless aplaintiff strictly proves his title to a share in common withothers, his action should be dismissed; that no share shouldbe assigned to a claimant without strict prodC of title; andthat the interlocutory judgment as to the Bhares of the partiesthen before the Court does not determine the statutory actionof partition.
In this partition suit the learned District Judge decided thatcertain added parties had no share rn the family lands. I am notsatisfied that the decision is right, but counsel for the respon-dents was not fully heSrd because we found that all the necessaryparties are not before the Court.
The plaintiffs seek a partition on the footing of a custom ofinheritance in their family, unusual in the maritime provinces
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and opposed to the common law and to the Ordinance of 1876,via, a custom that the daughters do not share with their brothersin the succession.
It is on this footing that the plaint is framed. The plaintiffsomit not only the descendants of their paternal aunts, but alsotheir own six sisters. It is in vain to adjudicate piecemeal onthe rights of parties in a partition suit. It would be embarrassingif we were now to decide on the evidence before us, whether theadded parties have shares, because, if others are to be cited asdefendants they would not be bound by a judgment at this stageto which they were not parties, and the question might require tobe tried anew. Therefore it is necessary to set aside the partitiondecree and to send the case back for further inquiries as to the,persons interested and their shares. Plaintiffs must give to theDistrict Court the names of all the known living descendants ofthe paternal aunts and of the six sisters, and the descendants ofsuch of them as have died.
By the law of the country these persons had by inheritance aright to share. It may be they have not possessed the lands inquestion, either because of other family arrangements or becausethe custom of exclusion of the females has been recognized andacquiesced in by them. Anyhow, it cannot be presumed thatthis abnormal custom exists in the absence of those whom theplaintiffs desire to exclude.