081-NLR-NLR-V-12-SAMARAKOON-et-al.-v.-JAYEWARDENE-et-al.pdf
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1909.April o.
Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
SAMARAKOON et al. v. JAYEWARDENE et al.
D. C., Ghilaw, 3,284.
Partition decree—Irregularity—Impeaching validity of decree in anothersuit—Fraud—Restitutio in integrum—Ordinance No. 10 of1863, s. 9.
Where, in an action by the plaintiffs to vindicate title to land,the defendants pleaded a decree in a partition suit in their favour,and the plaintiffs impeached the validity of the decree on theground of fraud and collusion,—
Held, that it was competent to the plaintiffs, not only to provethat the decree was obtained by fraud, but also to take exceptionto the contents of the decree.
A
CTION rei vindicatio. Appeal by the plaintiffs from a judg-ment of the District Judge. The facts and arguments fully
appear in the judgment of Wendt J.
Van Langenberg (Samarawickrame witli him), for the plaintiffs,appellants.
A. St. V. Jayewardene, for the defendants, respondents.
Cur. adv. vult.
April 6, 1909. Wendt J.—
One Jusey Perera, married in the community of estate to the 6thdefendant, died intestate in 1895, survived by his wife and fourchildren, viz., 7th, 8th, and 9th defendants, and one Maria, who isnow dead, and is represented by her husband, the 3rd defendant,and children, the 4th and 5th defendants. Jusey Perera’s estatewas a small one. Soon after his death the 6th defendant applied to
1 (1845) 3 Mem. 86.
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the District Court for permission to sell the land, which is the subjectof this action, and which formed part of the common estate ofherself and Jusey Perera, in order to pay debts of the community.The Court granting that nermission, the 6th. defendant on December3, 1896, sold the land to Mr. Abeyratne, and with the proceeds paidthe debts. On July 16, 1903, Mr. Abeyratne gifted the property toplaintiffs, and a year later plaintiffs brought the present action,alleging that about December, 1903, the 1st and 2nd defendantsousted them and took wrongful possession, “ claiming to be entitledthereto by virtue of a decree dated June 5, 1901,- entered in caseNo. 2,233 of this Court.” Plaintiffs further averred that the actionNo. 2,233 had been brought by the present 3rd, 4th', and 5th defend-ants against the present 6th, 7th, 8th, and 9th defendants; that allthe parties thereto were well aware of the plaintiffs’ title to the land,and were acting fraudulently and in collusion with each other inobtaining the said decree. The plaintiffs prayed that the decree bedeclared null and void and be set aside and plaintiffs declaredentitled to the land and the defendants ejected therefrom. The 1stand 2nd defendants alone defended the present aotion. Besidesvarious legal objections, they averred that the decree in caseNo. 2,233 was one duly obtained under the Partition Ordinance;that the 6th to 9th defendants became by virtue of it absolute ownersof the southern seven-eighths of the land, and sold it to 2nd defend-ant for valuable consideration and without notice of any claimthereto on the part of plaintiffs and their predecessors in title, and2nd defendant, after possessing the same, sold that portion to 1stdefendant. Defendants specially relied on section 9 of the PartitionOrdinance as precluding plaintiffs from asserting title to the land.
The District Judge dismissed the action, holding that plaintiffs’proper remedy for getting rid of the decree was by way of applicationfor restitutio in integrum. At our request he has recorded his findingon Other points argued before him as follows, viz., first, that therewas a valid partition decree; and secondly, that plaintiffs’ onlyremedy was that prescribed by section 9 of the Partition Ordinance,viz., an action for damages.
Plaintiffs’ counsel contended before us that there was in fact nopartition decree allotting the southern seven-eighths of the land todefendants’ vendors. In spite of respondents’ objection, I think itwas open to plaintiffs to take this point. They were not parties tothe decree and had no notice of it, and therefore their averring thatdefendants claimed under a decree and .praying that it be set asideas obtained by fraud does not preclude them from taking exceptionto the contents of the decree when the record was produced andrelied upon. The record of the action No. 2,233 is before us. Itwas not purely a partition action, because the plaintiffs averred thatsince their mother’s death three years before the defendants hadbeen in the wrongful possession of the lands to the exclusion of the
1909.
April 6.
Wendt J.
1909.
April 6.
Wendt J.
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plaintiffs, and claimed a declaration of title and damages by wayof mesne profits until possession was delivered, and then came theprayer that the said lands be partitioned in terms of OrdinanoeNo, 10 of 1863. The 2nd and 3rd plaintiffs there (the present 4thand 5th defendants) were minors represented by the 1st plaintiff,their father (present 3rd defendant). The 1st and 2nd defendants(present 6th and 7th) alone appeared, but filed no answer. Therewas a perfunctory inquiry as to the wrongful possession by thedefendants, and hardly a word as'to the title—only the 1st plaintiffand the 1st defendant were examined. The former said nothingabout the title. The latter said : “ My husband Jusey Perera ownedthese three lands.” She then stated the pedigree and the death ofher husband., and added", “ then I became entitled to half, and each ofmy four, children to an eighth.” She did not say that she or herchildren were at present entitled to anything, and in view of herconveyance of December, 1895, she could not truthfully have saidthat she at all events had any interest in the land. The judgment“ found it proved that the shares as stated in the plaint are correct ”—nothing as to the title—and directed a decree to be enteredallotting those shares. A commission was issued to a surveyor topartition the land accordingly, and he eventually on April 18,1901, made his return, stating that he “ proceeded to the land calledKahatagahawatta (apparently that described in the present plaint) •after giving due notice to the parties and partitioned the same.The defendants requested me to leave their portions of land incommon as they have sold their rights to one man, but they did notcome to the land.” He annexed to his report plans of the three lands,showing in each a portion marked A, which he proposed to allot tothe plaintiffs. The Commissioner did not state, and there was noevidence before the Court that he had, thirty days at least beforemaking his partition, affixed on the land the notice required by section5 of the Ordinance, or that he had given notice of Iris intention topartition by beat of tom-tom and “ in such other manner as shallappear best calculated for giving the greatest publicity thereto.”Notice of the day fixed for the consideration of the Commissioner’sreturn was served on the defendants, who did not appear, and theCourt ordered : “ Enter final decree in terms of the Commissioner’sreturn.” The decree that was drawn up recites the reading of theCommissioner’s report, and decrees and declares “ that the followinglands are partitioned between the plaintiff (the words ‘ and defendants’
are scored out) in terms of Ordinance No. 10 of 1863 ; and
that by virtue of such partition the lots marked Ain each of the saidfigures of survey having been allotted to the plaintiffs, it is decreedthat the plaintiffs be and they are hereby declared the absoluteowners, the 1st plaintiff of one-half and the 2nd, and 3rd plaintiffs.of
one-half of and in; (3) that divided portionof the land oalled
Kahatagahawatta marked Ain the said figure No.' 198, and oontaihmg
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in extent 3 roods and 30 square perches.” Now, this is the decreewhioh, as is now well settled, is to be regarded as the decree forpartition given as “ hereinbefore provided,” and to which section 9gives the conclusive effect by which the present defendants seek toestop the plaintiffs. This decree allots no interest whatever in theland in question, and the recorddiscloses in the Commissioner’s reporta good reason why the Court should advisedly have abstained fromdeclaring the defendants entitled to any interest at all, for they hadinformed the Court through the Commissioner that they had soldtheir rights in the land to a third party. The effect of declaringthem entitled to the shares mentioned in the .preliminary decreewould have been, by reason of that very conclusive effect uponwhich the respondents here rely, to deprive the defendants’ vendeeof his title and to drive him to an action for damages under section9. For these reasons I think that there is no decree which estopsthe plaintiffs from proving their title to the land in claim. I feelthe less regret at being obliged to construe the decree as I have,because the “ inquiry ” held by the District Judge was so slipshodthat it failed to discover the fact that the 6th defendant had alreadyalienated the land—an alienation which she concealed from theCourt. That concealment was clearly a fraud on her part.
I think the appeal should be allowed, the dismissal of the actionset aside, and the case sent back for the disposal of such furtherissues between the parties as the Court may settle. The defendantswill pay the costs of the argument in the Court below and of thisappeal; other costs to be costs in the cause.i
Hutchinson C.J.—I agree.
Appeal allowed ; case remitted.
1909.
April 6.
Wendt J.