056-NLR-NLR-V-77-R.-G.-P.-A.-GOONERATNE-Appellant-and-A.-V.-P.-A.-GOONERATNE-and-another-Respo.pdf
Gooneratne v. Gooneratne
271
1974 Present : Wijayatilake, J., Wijesundera, J., and Ismail, J.
R. G. P. A. GOONERATNE, Appellant, and A. V. P. A.GOONERATNE and another, Respondents
S. C. 263/69 (Inty.)—D. C. Kalutara, 1642/P
Partition action—“Voluntary alienation” of an interest in the corpuspending the action—Whether a consent decree entered by Courtcan be tantamount to a voluntary alienation—Holder of the baredominium of the corpus—Not entitled to institute a partitionaction—Partition Act (Cap. 69), ss. 2, 67.
272
WIJAYATILAKE, J.—Oooneratne v. Gooneratne
In the present partition action No. 1642 instituted in July 1963by A, the defendants were B and C, who were the brother andfather respectively of A. During the pendency of the action, Cinstituted action No. 1035 against his sons A and B claiming that adonation of land executed by him in favour of A and B illJanuary 1952 was null and void' on the ground of the sons’ingratitude and that he be declared entitled to the land, whichwas the same corpus as that described in the present action. Theaction brought by C was settled on the date of trial and consentdecree was entered according to which the deed of gift remainedunannulled but C was declared entitled to the life interest overthe corpus.
Held, that the settlement “ of consent ” in action No. 1035 wasnot tantamount to a “ voluntary alienation ” within the meaning ofsection 67 of the Partition Act. Furthermore, by reason of the lifeinterest given to C by the consent decree, the plaintiff A in thepresent action had only the bare dominium of the propertywithout any right to the usufruct and, therefore, was not entitledto institute an action for partition.
_/^PPEAL from a judgment of the District Court, Kalutara.D. C. Amerasinghe, for the plaintiff-appellant.
1st defendant-respondent in person.
The other defendants-respondents absent and unrepresented.
Cur. aav. vult.
March 8, 1974. Wijayatilake, J.—
This appeal raises the question whether a settlement “ ofconsent ” in Court can be recognised as a “ voluntary alienation ”within the meaning of Section 67 of the Partition Act.
The plaintiff filed this action on 5.7.1963 for a partition of aland called Idama or Madangahawatta in extent 7A. 3R. 30P.with the tiled house, trees, plantations and everything thereonas depicted in Plan No. 965A of 10.3.1901 excluding a 12 footroadway. The 2nd defendant is the father of the plaintiff andthe 1st defendant. Thereafter while this case was pending the2nd defendant filed action No. L 1035 also in the District Courtof Kalutara on 8.8.1964 against his two sons, the present plaintiffand the 1st defendant for a declaration that the deed of giftNo. 6281 of 27.1.1952 is null and void on the ground of inter alianeglect and physical threats, and also that he be declarer!entitled to a 7/8th share of the land referred to in schedule 1 tothat plaint, which is the same corpus as appearing in theschedule to the instant action. Both the defendants in that case
WIJAYATILAKE, J.—Goonerotne v. Gooneratne
273
(the present plaintiff and the 1st defendant) filed answerpraying for a dismissal of the action. When the case came up fprtrial on 22.9.1965 the Court was informed of the fact that theparties had come to a settlement. The learned District Judgeentered decree in terms of this settlement 2D5. Inter alia theterms of this settlement were as follows :—
“ That the deed of gift which is sought to be set aside willstand and of consent, the plaintiff is declared entitled tothe life interest over the entirety of the properties describedin schedules 1 and 2 to the plaint.”
In view of the settlement the 1st and 2nd defendants concededa reasonable means of access ; they agreed to vacate the portionof the building occupied by them standing thereon in schedule1 to the plaint on or before 31.3.1966 ; in default of the defendantsleaving the house the plaintiff to be entitled to a writ ofejectment without notice.
When the instant action for partition came up for trial on6.8.1969, issues 8, 9, 10 and 11 were raised in respect of theaforementioned decree in the District Court of Kalutara L/1035and the principal question arose as to whether the presentplaintiff has any interests in regard to possession of the subjectmatter of this action and if so whether he could maintain thisaction. It was submitted that the settlement 2D5, which I havereferred to above, contravenes the provisions of Section 67 ofthe Partition Act as it is tantamount to a “ voluntary alienation ”within the meaning of this Section. Section 67 of the Actprohibits any voluntary alienation, lease or hypothecation ofany undivided share or interest of or in the land to which theaction relates after a partition action is duly registered as alis pendens under the Registration of Documents Ordinanceuntil the final determination of the action by a dismissal thereofor by the entry of a decree of partition or by the entry of acertificate of sale. This Section is based on Section 17 of therepealed Partition Ordinance and Section 17 of Ordinance 21of 1844. The object of this provision would appear to be toprevent the trial of a partition action being unduly prolongedand delayed by intervention of parties who derive interests inthe land after the institution of an action. The object of thisprohibition has been explained in 1878 in Baban v. Amerasinghe 51 S.C.C. 24. “ The sole purpose of this clause seems plainly tobe, to reserve full effect to the legal proceedings for partition,when once instituted, and to take care that it shall not be in thepower of any party concerned to defeat them or embarrass thecourse of them, by transferring his share or any interest in the
ils.o.C 24.
274
WIJAYATILAKE, J.—Gooneratne v. Gooneratne
property to a stranger. ” See also Annamalai Pillai v. Perera *6 N.L.R. 108 at 119, Subaseris v. Prolis * 16 NL.R. 393, Hewawasanv. Goonesekera’ 28 N.L.R. 33 at 42 and the Law of Partition inCeylon by Wickremesinghe at page 191.
In the instant case as would appear from the settlement, thepresent plaintiff of consent has parted with his life interest overthe property in question. The question does arise as to whetherin the context of the settlement in that action in Court whetherit amounted to a voluntary alienation of an interest in the corpusas contemplated by Section 67 of the Partition Act. The learnedDistrict Judge has held that this settlement cannot be considereda “ voluntary alienation ” as such.
Mr. Amerasinghe, learned counsel for the appellant has drawnout attention to the judgment in Perera v. Perera1 9 N.L.R. 217and he has submitted that the words in this Section should notbe given a restrictive interpretation as the essence of the disposalis its voluntary character. In this context the marginal note toSection 67 affords some light as to the object of the Legislature.On a perusal of the settlement in Court, it would appear thatalthough it was of consent it was a consent which was obtainedafter the parties were at issue (the relations between the fatherand the two sons being very bitter as would appear from theaverments in the plaint in that action) and subject to certainconditions. This would all go to show that it is not analogousto a transaction such as a sale, lease or hypothecation, as whenparties enter into a settlement in Court they do so as there isalways a lurking fear that the ultimate result may not be soadvantageous. The acceptance of the settlement by Court andthe decree entered in consequence would amount to somethingmore than a mere formality. It would be a superimposition byCourt.
Mr. Amerasinghe has very cogently submitted that thesettlement in Court being of consent it would not be analogous toa Fiscal’s transfer which is in effect a “ forced ” transfer. He hasargued that the distinction between voluntary alienations andnecessary alienations has to be kept in mind in the context ofthis case. As I have already indicated although the settlementin question was of consent but still the circumstances underwhich the settlement was effected would show that it is not avoluntary alienation as contemplated in Section 67. See also thejudgment in Saparamadu V. Saparamadu ‘ 10 N.L.R. 221 whichfollowed the judgment in Perera v. Perera referred to aboveand also “ The Law of Partition in Ceylon ” by Wickremesinghe
1 6 N. L. R. 108 at 119.» 16 N. L. R. 393.
110 N. L. R. 221.
28 N. L. R. 33 at 42.
9 N. L. R. 217.
Sherman de Silva dk Co., Ltd. v. De Silva
275
at page 198. In these circumstances, I am of the view that thissettlement would not amount to a “ voluntary alienation ” withinthe meaning of Section 67 of the Partition Act.
The settlement, in fact, refers to this partition case that waspending in the same Court. This would also show that the partiesto this settlement did not recognise it as a “ voluntaryalienation ” within the meaning of Section 67 of the PartitionAct.
Furthermore, the plaintiff in this action having parted withthis interest is now seeking to base his claim on his own default.I do not think the plaintiff is entitled to pursue this action forpartition in the circumstances.
Section 2 of the Partition Act No. 16 of 51 provides that:
“ Where any land belongs in common to two or moreowners, anyone or more of them may institute an action forthe partition or sale of the land in accordance with theprovisions of this Act. ”
The learned District Judge has held that as the plaintiff hasonly the bare dominium of the property or a share in it withoutany right to the usufruct over the property he is not entitledto institute an action for partition. He has relied on thejudgment of Dalton, S.P.J. in Charles Appu v. Dias Aheysinghe35 N.L.R. 323. With respect I am in agreement with this view.
I would accordingly dismiss the appeal without costs.
Wijesundera, J.—I agree.
Ismail, J.—I agree.
Appeal dismissed.