Dicta v. Dicta
1959Present: PuHe, J., and T. S. Fernando, J.
S. J. DIAS and others, Appellants, and S. R. DIAS, RespondentS. C. 176—D. C. Colombo, 6,998}P
Partition action—-Conveyance by a co-owner of a divided lot or korofruwa—Right oftransferee to maintain a partition action in respect of the whole land—Go-owners—Amicable partition—All the co-owners must be parties to it.
Where a co-owner conveys his interest by reference to a particular portion orhorotuwa of which he has been in possession, the deed can be considered as *effective in law to convey his undivided interest in the whole land. In such acase the transferee can maintain a partition action in respect of the whole land ,
An amicable partition to be recognized in law must be a division which in lawterminates the co-ownership of the property. A plan made at the instance ofone or more co-owixers purporting to cause a division of the common land ofwhich the other co-owners apparently had no notice does not form the basis ofdivided possession. Exclusive possession an the footing of such a plan doesnot terminate the co-ownership of the land. <3'ithohamy v. Karanagoda (1934) 561ST. I.. It. 250, followed.
/“APPEAL from a judgment of the District Court, Colombo.
Sir Lolita Rajapakse, Q.C., with JS. S. Amerasinghe and D. G. W.WichramctseJcera, for the 1st to 3rd defendants-appellants.
W. Jayexcardene, Q.G., with S. D. Jayasundere, for the plaintiff-respondent.
Cut. adv. vult.
T. S. FERNANDO, J.—Dias v. DiasMarch 25, 1959. T. S. Pebnastdo, J.—
The plaintiff instituted this action for a partition of a land describedas the divided southern portion of Kahatagahawatte and depicted inplan No. 8439 of 25th March 1954. The original owner of this dividedportion was admittedly one Elias Dias, the paternal grand-father of theplaintiff, and the plaintiff claimed to be entitled to 142/336 share of theland and of an old house standing thereon on the strength of a transfer(P 8 of 14th October 1951) made to him by his father Carolis. Caroliswho is a son of the original owner had parted with his undivided interestsin the soil and in the house in 1918 and 1920 respectively, but had threeyears later, by transfer P 5 of 1923, purchased from his sister Carlina herinterests in the said land. The remaining shares were allotted by theplaintiff in his plaint to the several defendants in this case who were alldescendants of the original owner.
The claim for partition was contested only by the 1st defendant James,a brother of Carolis referred to above and a son of the original owner,and by the two sons of James, viz., the 2nd and 3rd defendants, whoalleged that their father had gifted to them in divided blocks the landsought to be partitioned. The 1st defendant and his two sons claimedthat they were entitled to the land by right of possession adverse to andindependent of all others.
The main question in dispute at the trial was whether Carolis, the fatherand predecessor in title of the plaintiff had by a deed P 9 of 1929, executedby him in favour of his brother James, the 1st defendant, divested himselfof all his rights to the land sought to be partitioned. It was apparentthat, if this question was answered against Carolis, the plaintiff, beingdevoid of title, could not maintain any action for partition. Caroliswho gave evidence on behalf of the plaintiff took up the position that thisdeed P 9 related to a transfer, not of interests in the land in question whichis the divided southern portion of Kahatagahawatte, but of interests inthe land to the north, viz., the northern portion of the same Kahatagaha-watte. After a consideration of the evidence, both oral and documentary,the learned trial judge has held against the contesting defendants andordered interlocutory decree for partition to be entered. The appeal isfrom this order.
The appeal has been pressed before us both on facts and law. In regardto the main dispute on the facts, while the question was not entirely freefrom difficulty, we think the trial judge came to the right conclusionwhen he upheld the contention for the plaintiff that deed P 9 transferredonly the interests of Carolis in the land to the north of the land sought tobe partitioned, i.e., it dealt with interests in the northern portion ofKahatagahawatte in which too Elias the original owner, as one of thechildren of Lewis, was entitled to a share. It is hardly necessary to enterupon an examination of all the arguments advanced for the appellantsand for the respondent upon this trial, but as the questions of fact werefolly argued before us it may be useful to refer here to some of them.
T. S. FERNANDO, 3.—Dias r. Dias
The southern boundary of the land dealt with by P 9 is therein describedas “ the wall of thi3 land and dewata road ” which happens in fact to bethe northern boundary of the land sought to be partitioned. The argu-ment for the defendants that this description has been set down in thedeed by a mistake was rejected by the trial' judge for reasons whieh areweighty and which we need not repeat.
There is a house standing on the land sought to be partitioned, andP 9 itself purports to convey interests in a house as well. The referenceto a house in P 9 was utilised as an argument to show that it dealt withthe land sought to be partitioned. The trial judge has, however, acceptedthe evidence tha+ on the northern portion of Kahatagahawatte too whichdevolved on all the heirs of Lewis including Ellas himself there stood ahouse which remained on that land, though in a dilapidated state, evenat the time of the trial.
The deed P 9 does not refer to the vendor’s rights as being referableto the purchase by him of his sister’s rights by transfer P 5 of 1923, butpurports to be a sale of inherited rights by Carolis, a description which isappropriate to a sale of the interests in the northern portion which heacquired by inheritance through his father Elias.
If, as was contended by the appellants, the deed P 9 was a transferto the 1st defendant of all the rights of Carolis in the land sought to bepartitioned, it was hardly likely that the 1st defendant who did not appearto the trial judge to be a gullible man would have agreed to the transactionthat is described as an amicable partition of the southern portion of Kaha-tagahawatte between Carolis and himself. But this was precisely whatthe 1st defendant did when two. years after his purchase P 9 in 1929 ofwhat he now contends were the interests of Carolis in the southern portion,he signed along with Carolis the survey plan P 6 dated 8th October 1931.The reason advanced by the 1st defendant at the trial that he had to signthis plan as Carolis claimed that he had purchased the rights of theirbrother Dionis was quite unconvincing, if not altogether false, and wasrightly rejected by the trial judge.
In addition to the circumstances adverted to above, there was thesomewhat compelling circumstance that in 1934 Carolis had leased to oneSamel upon notarial lease P 11 a divided part of the southern portion ofKahatagahawatte which was described as Lot A the subject of theamicable division evidenced by plan P 6. Samel was called as a witnessfor the plaintiff, and his evidence which the learned trial judge hasdescribed as convincing shows that his possession was not disputed bythe 1st defendant or his sons. In the face of all these circumstancesthe appeal on the facts must fail.
As a question of law, it was contended that deed P 8 of 1951 which isthe title relied upon by the plaintiff conveyed to him a divided lot whichconstituted only a part of the land sought to be partitioned and that hecould not therefore maintain an action for partition of land which includedinterests outride this divided lot. In regard to this it must be remem-bered that the amicable partition evidenced by P 6 was not a partitionamong ail the co-owners entitled to interests in the land at the- time it
Suwanda v. Inspector of .Police, Kafutwatto
wai effected in 1931. Two at least of the co-owners were not partiesthereto, and the 1st defendant himself did not treat this partition asbeing binding on the other co-owners because he purchased, a monthafter this partition, the interests of his brother Dionis. An amicabledivision to be recognised in law must be a division which in law terminatesthe co-ownership of the property. A plan made at the instance of oneor more co-owners purporting to cause a division of the common land ofwhich the other co-owners apparently had no notice does not form thebasis of divided possession. Exclusive possession on the footing ofsuch a plan does not terminate the co-ownership of the land.—(SeeGithohamy v. Karanagoda 3). In regard to the question whether theplaintiff's title deed P 8, though purporting to convey to him a dividedlot, can be considered as effective in law to convey to him undividedinterests in the whole land, it should be mentioned that this Court has inseveral cases noted with approval the dictum of De Sampayo J. in DonAndris v. Sadinahamy 2 that “it is not uncommon for co-owners to dis-pose of their interests by reference to particular portions or horatuwas ofwhich they have had possession. But if the real intention is to disposeof the interests of the persons in the entire land, this Court has found nodifficulty in giving a broad construction to such deeds, and to deal withthe rights of the parties on the original footing ”. The trial judge hasanswered the question whether the deed P 8 can support the claim of theplaintiff to partition the land in the affirmative, and here too the learnedjudge has reached, in my opinion, a correct decision. The appeal there-fore fails even on the question of law. I would accordingly dismiss itwith costs.
Puiii.'E, J.—I agree.
S. J. DIAS and others, Appellants, and S.R. DIAS , Respondent