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PERIS v. PERIS.
D. C., Colombo, 14,181.
Partition—Ordinance No. 10 of 1888—.Inherited lands and shares of lands—action for partition or sale of such lands—Parties necessary to the suit.
Where the plain tiffe and defendants had inherited numerous landsand- shares of lands, and the plaintiffs prayed for a partition or saleof such lands,' without making the co-owners of the deceased ancestorparties to the suit,—
Held, that the Ordinance No. 10 of 1863 permits an action to beraised for the partition or sale of several lands held in common.
At, undivided portion of a larger extent of land cannot be the subjectof a partition suit unless the co-owners of the whole corpus be madeparties to it.
If many entire lands are sought to be partitioned together with a landnot held in common by all the plaintiffs and defendants, the propercourse is to leave it tc be dealt with in a separate suit.*
HE plaintiffs prayed for a partition or sale of numerous landsand shares of lands which belonged to one Peris and his
wife, and which after their death devolved on the plaintiffs anddefendants as their offspring. The first defendant filed answerobjecting inter alia that the' twenty-six allotments of land de-scribed in the plaint being separate and distinct from one another,the plaintiffs could not claim in one and the same action decrees inrespect of them all; that some of these allotments appeared to benot whole lands, but only undivided fractional parts owned by thedeceased Peris and his wife; and that the partition or sale of suchundivided shares, without the co-owners of Peris and his wifeBeing made parties to the case, was impossible.
The District Judge over-ruled these objections and directed thecase to be set down for hearing.
The first defendant appealed. The case was argued on 27thJanuary, 1903.
Walter Pereira, for appellant.—In D. C., Colombo, 9,212,decided on 23rd January, 1901, Bonser, C. J., held that two entirelydistinct pieces of land could not be sought to be partitioned in oneaction, although the parties concerned in respect of those landswere the same, and their interests identical. The Ordinance No. 10of 1863, section 2, shows, that only one property may be the subjectof one partition suit. In the present case what is prayed for is not• a partition of one or two lands, but of an entire inheritance amongthose who are alleged to be co-heirs. The Partition Ordinancecannot be utilized for such a purpose, even if all the co-owners
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1008. of the undivided shares are made parties to .the suit. Sado v.
January 27. Mendis (2 8. G. C. 127). [Layaed, C.J.—What is the practice of~ our Courts? Does it not allow several lands held in commonamong the same co-owners to be joined in one partition suit?]Yes. But that practice has been virtually condemned by Bonser,
J., in the case cited.
J. C. Pereira, for respondent.—Chief Justice Bonser onlyheld in that case that the leave of the Court was necessary to joinin one suit the two lands. There is no such provision in theOrdinance, nor any such practice. To simplify the case, theplaintiff will withdraw the action in regard to all those lands inwhich the deceased Peris and his wife .had only fractionalinterests, but the action is maintainable in regard to all the restof the lands. Such actions are common in 'England. Agar v.Fairfax (27 Vesey, 533). Walker on The Partition Acts (1882)gives many such cases. The Civil Procedure Code, section 36,permits union of several causes of action, and section 6 covers apartition action, which is an application for relief.
January 27, 1903. Layard, C.J.—
The only difficulty that presented itself to me has been got overby the respondent’s counsel agreeing to withdraw the action inrespect of all the portions of land which are undivided.
It is obvious that an undivided portion of land cannot be thesubject of partition under the. Partition Ordinance. An undi-vided portion of land is only a portion of a larger extent of land,and all the co-owners , of the whole corpus must be parties to thepartition suit. The Ordinance No. 10 of 1863 appears to providefor the sale or partition of lands held in common, and I can find,nothing in the Ordinance which restricts its provision to onesingle land held in common.
It is admitted that ever since the Ordinance No. 10 of 1868 thepractice of the Courts has been to allow several lands which areheld in common among the same co-owners to be joined in onepartition suit.
I would affirm the order of the District Judge.
Should it appear, in the course of the investigation of the titlesof the plaintiffs and defendants, that any particular land includedin this action was not held in common by all the plaintiffs anddefendants, I think the Judge should not order a partition of thatparticular land, but leave it to be dealt with in a separate suit.Moncreiff, J., agreed.
PERIS v. PERIS