001-NLR-NLR-V-06-SINCHI-APPU-v.-WIJEGUNASEKERA.pdf
THE
NEW LAW REPORTS OF CEYLON.VOLUME VL
SINCHI APPU v. WIJEGUNASEKEBA.190*.
July 24, 26,
D. C., Negombo, 4,232.and Sept. 17
Partition—Ordinance No. 10 of 1863—Action for partition by plaintiff who hS9never had possession.
A person claiming to be the owner of an undivided share of a land)and to be therefore entitled to possession of it, is competent to maintainan action to have that land partitioned, although’ neither he nor hispredecessor has had possession, and although the defendants whollydeny his title.
Where such an action is brought in good faith, its failure ought not torender the plaintiff liable to be cast in double costs under section 4 ofthe Ordinance No. 10 of 1897.
T
HE plaintiff claimed one-third share of the land called Keta-kellagahawatta, and prayed to have it partitioned from
the rest of the land. The defendants denied the title of theplaintiff to any share in it, and claimed the whole of the said landby right of purchase from one Mudalihamy.
After Evidence heard, the District Judge found that the one-thirdshare claimed by the plaintiff belonged to one Besohamy by inheri-tance from her parents Mudalihamy and Bansohamy; that neitherBesohamy nor her vendees ever had any possession of it; thatthe plaintiff, who deduced title from Besohamy’s vendees, did nothimself obtain possession of the land; that the defendants did notacquire a title against Besohamy or her privies in title by adversepossession; and that neither the plaintiff nor his predecessors intitle ever possessed the land in common with the defendants.
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1902. The District Judge further held that the plaintiff's proper remedyJuly 24, 25, was an action for declaration of title, and not a suit for partition.and Sept. 17. was opinion that this suit was instituted by the plaintiff toescape the payment of stamp duty, and that as he had abused theprivilege granted by the Ordinance No. 10 of 1897, he shouldpay to the Crown double the amount of stamp duty payable inthis case (Ordinance No. 10 of 1897, section 4).
He then declared plaintiff to be entitled to one-third of theland described in the plaint, but not to any share of the buildingsthereon, inasmuch as they were built by the first defendant, and theDistrict Judge directed the land to be partitioned accordingly.
The plaintiff appealed.
The case, coming on for argument before Moncreiff, A.C.J., andWendt, J., on the 24th July, 1902, was ordered to be listed thenext day before the Full Court, in view of conflicting decisions onthe question raised by counsel.
On the 25th July the case was heard by Moncreiff, A.C.3., Wendt,J., and Middleton, J.
E. W. Jayawardene, for defendants, appellants.
H. J. C. Pereira, for plaintiff, respondent.
The following cases were referred to in the argument:—G. B.Negombo, 3,695. decided 31st May, 1897 (unreported); D. C.,Colombo, 12,901, 4th July, 1900; Perera v. Per era (2'N. L. B. 370);Silva v. Paulu (4 N. L. R. 174); Caralaaingam v. Velupillai (2Browne 103); Fernando v. Appuhamy (2 Browne 214); Koch’sReports 5; D. C., Colombo, 12,315, 14th October, 1899; Bullet v.Koelman (Rant. 1848, p. 143); Fernando v. Mohamadu Saibo(3 N. L. R. 321).
Cur. adv. vuli.
17th September, 1902. Moncreiff, A.C.J.—
I have had the advantage of reading the judgments of mybrothers in this case, which deal fully with the history and meritsof the action. I agree with their opinion, and concur in the termsof the order which they suggest as proper to be made on thisappeal. I shall simply refer, to the subject in respect of whichthe case was referred to the Full Court.
While granting a partition decree and allotting to the plaintiffthe extent of the land he claims, the Judge has ordered him topay double 6tamp duty, on the ground that he has committed anabuse of the Partition Ordinance (within the meaning of section 4of No. 10 of 1897) by bringing a partition action when his properremedy was an action for declaration of title.
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It has been again argued that a partition suit can only bemaintained by a plaintiff who is in possession, or whose title isnot disputed. In this case the plaintiff had no possession, eitherby himself or those through whom he claimed, for at least twentyyears; he had a good title, but it was disputed; and because itwas disputed by the first defendant, who should not have disputedit. the plaintiff, forsooth, has no remedy by partition action. Whyso? We have asked the appellant’s counsel for a reason, but hecould give none. He referred us to a series of well-knowndecisions, which, with more or less inconsistency, favour the viewfor which he contends, but in none of those decisions did theJudges who took part in them offer either authority or reason fortheir opinion. I am not aware of any authority or reason for thelaw laid down in these decisions, but I am aware of certainprovisions in the Partition Ordinance which seem to me to beutterly destructive of it.
thought this conception was dead, but it dies hard; and itseems that a Full Court decision is necessary to sanctify itsdissolution. I can only think that the jurisprudence referred towas a sort of tradition, filtering down from the Partitionprovisions of the Wills (Landed Properly) Ordinance (No. 21 of1844) and the Roman-Dutch Law. The matter is made clear inmy brother Wendt’s judgment. Under that Ordinance, partition,as it seems, could only proceed between persons who wereadmittedly co-owners, or who had legally established their title.The Court could not, and did not, investigate title. These provi-sions, being found inconvenient and in some respects injurious tothe parties interested, were repealed by Ordinance No. 11 of 1852,when, I suppose, parties were remitted to such rights as they had.at Common Law.
Then came the Partition Ordinance, No. 10 of 1863, which nodoubt a plaintiff should not use for the purpose of getting adeclaration of title, but which enabled him—whether inpossession or out of possession—to ask for what is practically adeclaration of title, provided that he also asks for partition.Here we are not considering the case of a plaintiff who sets up abogus claim to title, but that of a plaintiff who had a good title,and has made it good. The learned Judge thinks that his actionwas brought merely to obtain a declaration of title. Whatjustification is there for this ? The man asked for partition, andthat is all that is required by the present Partition Ordinance;when he does that, he is at liberty, and he is obliged, to prove histitle.
1902.
Jvly 24, 26,and Sept. 17.
Moncbbut,
A.C.J.
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1902.
Jttiy 24, 26’and Sept. 17.
Monobekpf,
A.C.J.
The preamble of the Ordinance certainly speaks of land “ hold ”in common; but the word—whatever it may mean—cannot con-tradict the plain sense of the text.
The 2nd section, which confers the ight to compel a partition orsale, gives such right, “ when any landed property shall belong totwo or more owners,” to “ one or more of such owners.” Thereis nothing in this section to indicate an intention to make possession,or the admission of such " ownership,” a condition precedent tothe exercise of the right conferred. It is only required that theparties shall be “ owners ” to whom the land ” belongs ” incommon.
The 4th section provides for the hearing of evidence with a viewto the proof of the plaintiff’s title, and the title of the other parties.It also provides for this very case. When the. defendants disputethe plaintiff’s title, the Judge is to examine the titles of all partiesinterested, and decree partition or sale, as he. thinks lit. Nothingcould be more comprehensive. There is not a word to suggest theexclusion of an owner not in possession.
I am of opinion that the Judge’s order on this matter was wrong,and that it should be varied as explained in the judgments of mybrothers.
Wendt, J.—
This case came on before the Acting Chief Justice and myselfon the 24th July, 1902, when it was found that it involved thevexed question as to how far an admission of some interest in theplaintiff, and how far possession by virtue of such interest, isnecessary to the maintenance of a partition suit. In view of the• conflicting decisions upon this point, we acceded to the suggestionof counsel that the matter should be brought up before the PullCourt, and the case was accordingly re-argued next day.
The facts upon which this question is raised are, briefly, asfollows: —The land which is the subject of this action is about 3acres in extent, and represents a fourth part of a larger extent ofland, which admittedly belonged to one Samel Appu, and it wasin 1873 donated by him to Tikirihamy and her daughter Ranso-hamy and the latter’s husband Mudalihamy. The parties areagreed that by this conveyance the husband and wife each took athird of the subject donated. Ransohamy died intestate on 23rdOctober, 1874; leaving an only child, Resohamy, bom on 1st July,1874, who, owing to the parents having been married in thecommunity of property, inherited from her mother an undividedone-third share of the land. She married on the 8th October, 1891,
( « )and in December, 1893, conveyed her one-third share to plaintiff's 1902.brother and sons and son-in-law. This share eventually passed to drdy24, 96,
plaintiff by conveyance dated December, 1900, and he brought the
present action in September, 1901.. The first defendant (the seoondJ*
being his son) claimed the whole of the two-thirds which hadbelonged to Bansohamy and Mudalihamy by virture of a convey-ance on sale from the latter dated December, 1879. By arrange-ment between first defendant and Tikirihamy in April, 1880,the land was divided, allotting to first defendant in respect of histwo-thirds an extent of 1 acre 2 roods and 26 perches. The firstdefendant has had exclusive possession of this extent from thatdate up to the present time, and the District Judge has found (andthis finding is not contested) that neither plaintiff nor any of hispredecessors in title after Bansohamy and Mudalihamy have hadany possession of the land.
The District Judge has held that under these circumstancesMudalihamy’s transfer to the first defendant passed only one-thirdof the land, and that first defendant’s adverse possession of the two-thirds does not avail to give him a prescriptive right against Beso-hamv and the plaintiff as representing her, by reason of Besohamy’shaving laboured under disability up to within ten years of thisaction. A partition has been decreed of the extent of 1 acre 2 roodsand 26 perches, allotting one-half to the plaintiff and the otherhalf to the defendants, with all the buildings which wereerected by them.
By the Boman-Dutch Law, where property was owned inundivided shares, an action for partition lay at the instance of anyone of the owners (actio communi dividundo), and it was im-material whether all or none or only one of them was in possession(Voet X., 3, 1). It was immaterial whether they owned the laudunder the same or under different titles, and among the requisitesfor the maintenance of such an action I do not find it stated thatplaintiff’s right to some share at least should be admitted by thedefendants, and this, although in treating of the analogous actiofamilies erciscundcs, which was allowed to one heir against hisco-heirs for the division of an inheritance (Voet X, 2, 9: Sampson’sTranslation, p. 362), states that if the plaintiff’s heirship wasdenied, but he was in possession, the Judge had to try the questionwhether he was an heir or not, whereas if he was out of posses-sion, he might by exception be compelled first to bring the actionstyled hereditatis petitio to establish his right.
Under this law, as the Common Law of Ceylon, actions forpartition were instituted and decided (see Abesekere v. Silva,
1838, Morg. Dig. 237; Aberan v. De Silva, 1840, ibid. 302). Then
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oame the Ordinance No. 21 of 1844, and from this point theSffaHusr. ^tory of the/- legislation and of the course of decisions under itw~ j is fully and clearly stated by Lawrie, A.C.J., in Fernando v.
Mohamadu Saibo (3 N. L. R. 321), and 1 need not repeat it here.He quotes from Butter v. Koelman (Ramanathan's Reports, 1848,p. 143) the opinion of the judges that, in the absence of any expressdirection in the Ordinance as to how the respective rights orproportions of the owners should be ascertained where they aredisputed on these summary applications, the proper course is forsuch contested claim to be tried in an incidental suit and theproceedings on the application to be stayed, in like manner asdirected by the 18th rule of section 1 on claims upon sequestration.The Ordinance of 1868 clearly contemplates the investigation oftitles by the Court, which the older Ordinance did not, and expresslydirects that such investigation shall be “in the same cause.” Itsays that, ‘ ‘ if the defendants shall appear and dispute the title of theplaintiffs, or shall claim larger shares or interests than the plaintiffshave stated to belong to them,” the Court shall proceed todetermine the dispute. These words contemplate not merely apadjustment of the proportions in which the land is owned, but adetermination as to whether plaintiff has any title at all, if that isdisputed by the defendants. The Ordinance says not a word as topossession.
This being the scope of the Ordinance, I am inclined to thinkthat those decisions, which held it to be a fatal objection to apartition suit that plaintiff’s co-ownership with defendants wasdisputed, proceeded upon some revival (on grounds of convenienceperhaps) of the practice which prevailed under the Ordinance of1844. It must be noted that even that old practice did not justifythe dismissal of the partition action, but merely a stay ofproceedings in it until declaration of title was obtained in anincidental action.
The earliest of those decisions which -have been cited to usis that of Lawrie, A.C.J., on 31st May, 1897, in an unreported case,C. R., Negombo, 3,695, where he said: “ This Court has, in many, judgments, laid down that it is a misuse of the Ordinance to maketitle by a partition action and decree. The Partition Ordinanceought to be used only when the relation of joint owners admittedlyexists between the plaintiff and those whom he calls into Court.It is proper to settle by partition suit the extent of the co-owners'shares and to separate them. Such a suit should not be broughtagainst those who dispute that there is a co-ownership.”
This was followed by Perera v. Perera (2 N. L. R. 370), whereplaintiff’s title was denied in toto, but was upheld by the District
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Judge. Whether he decreed a partition is not stated in the report, 1902.but Lawrie, A.C.J., affirmed the declaration of plaintiff’s title,
observing in the course of his judgment, “ the latter part of the
action cannot be approved; it has often been held by this Court Wenut’that a partition suit should not be brought by a man not inpossession whose title is disputed.” Withers, J., concurred inthis judgment, without adding any reasons of his own. None ofthe many decisions referred to by Lawrie, A.C.J., have beencited to us, and I do not myself remember any. I have lookedthrough my notes of cases decided during my practice at the Barand have not been successful in tracing any. On' the other hand,
I have found one reported case, D. C., Kalutara 26,747, (Grenier,
1874s, p. 48), where plaintiff was out of possession and defendantclaimed the whole land, and yet no objection was taken to theplaintiff’s right to sue, and he recovered judgment.
In Nona Baba v. Namohamy (3 N. L. R. 12) the District Judgehad dismissed the action altogether, holding that plaintiff had notitle, and Withers, J., thought it was a sufficient ground forsupporting the dismissal that the action was an abuse of thePartition Ordinance. He added that the primary object of partitionproceedings was not to try and determine contested questions oftitle. Partition proceedings were really meant for those whoseshares in the land were admitted at least to some extent. Thecontest as to title should first be settled in an appropriate action,and plaintiff might then, if successful, initiate partition proceed-ings. He said nothing as to the necessity for possession, and Itdoes not appear from the report whether the plaintiff was or wasnot in possession.
In Silva v. Paulu (4 N. L. R. 174) Lawrie, J., said he was doubt-ful of the soundness of his ruling in Perera v. Perera, that an ’action for partition could not he brought by a party not inpossession whose title was disputed. He doubted whether it wasnecessary to aver or prove that he was in possession. It was notnecessary that his title be admitted. He added that the circum-stances of the case of Perera v. Perera were peculiar.
Caralasingam v. Velupillai (2 Browne 103) was decided byWithers, J., in whose judgment Bonser, C.J., concurred. TheDistrict Judge relying upon Nona Baba v. Namohamy had dis-missed the plaintiff’s action altogether, because on the pleadingssome of the defendants had denied his title. This Court sentthe case back for the examination of the parties, Withers, J.,pointing out that if the judge was then satisfied “ that the plaintiffhad no ground for asserting co-ownership, and that these pro-ceedings were taken merely to settle disputed contests (about
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1902. title to shares which the plaintiff had never actually enjoyed,”July 24,26, he would be right to dismiss the action, but otherwise allow it toSept. 17. procee(j j (j0 not know what exactly was intended by the expres-Wbnbt, J. gion •< ground for asserting co-ownership,” but if it meant title to ashare of the land, it is conceded plaintiff could not succeed withoutit. As to plaintiff never haying actually enjoyed the share heclaims, does it mean that possession by a predecessor in title isnot sufficient? If a predecessor’s possession is sufficient, how farback would a plaintiff be permitted to go ? In the present caseplaintiff’s predecessor two steps removed, viz., Bansohamy, wasadmittedly the owner and in possession up to her death in 1874.Is that title and possession not sufficient ? Suppose Besohamy(Bansohamy’s daughter and sole heiress) were bringing this action,must she fail because during her infancy defendant took, andhas since kept, possession adversely to her ? Or, again, assumingplaintiff admittedly once had title by deed, but for over ten yearshas been out of possession, would defendant’s mere assertion of aprescriptive right throw plaintiff out of Court ?
The next case is'D. C., Galle, 5,137, {Koch, 5), where also theDistrict Judge had dismissed the action on the authority of NonaBaba v. Namohamy, because defendant denied plaintiff’s title.It is not stated whether plaintiff was in possession. Bonser, C.J.(Lawrie, J., concurring), sent the case back for trial.
” It seems to me,” he said, “ that the District Judge has assumedthat the case of Nona Baba v. Namohamy laid down a generalrule binding in every case whereas it is clear from the reportthat the remarks of the learned judge were directed to the facts ofthat particular case. He did no intend to lay down the generalproposition that, whenever a defendant in a partition suitdisputes the plaintiff's title, the case should be dismissed, for that
is contrary to section 4 of the Partition Ordinance But I
entirely agree in the remarks in the case to which I have referred asto the impropriety of making partition suits a substitute for actionsrei vindicatio.” I have sent for and examined the record of thisaction. The plaintiffs in their plaint, which was filed on 27thJuly, 1898, allotted to the twenty-fourth defendant an undividedone-twelfth of the land, as purchased by deed dated 4th March,1896. The twenty-fourth defendant, who alone contested theaction, denied altogether the right of the plaintiffs and the otherdefendants, and claimed the whole land for himself exclusively,alleging that he had his predecessors in title had for over tenyears possessed it adversely to plaintiffs and the other defendants.The deed of 4th March, 1896, was a conveyance of the entireland. The District Judge took no evidence, but after hearing
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parties dismissed the action on the authority of Nona Baba v. 1909.Namohamy. When, therefore, the case came before Bonser, C.J.,
and Lawrie, J., it was one in which both plaintiffs’ title and '
possession were disputed, and therefore one in which the plaintiffs Wbkot, A.
ought to have been referred to a ret vindicatio action, if that is the
only form of action which is open to a man who is out of possession,
and whose title is wholly denied, and yet this Court sent the case
back for a trial as a partition action. (I observe that after a full
trial the plaintiffs’ action was in August, 1900, dismissed with
costs, and an appeal against the dismissal is now pending in this
Court.)
The next case in order of date is that of Fernando v. MohamaduSaibo (3 N. L. R. 321). Plaintiffs claimed three-fourths of theland, and, allotting the remaining fourth to defendants, complainedof defendants having some time before taken possession of theentirety and excluded plaintiffs. The prayer was for declarationof title and partition. Defendants claimed the whole land,and took the objection that, as plaintiffs were out of possession,they must first establish their title in a separate action. TheDistrict Judge, relying on Perera v. Perera, rejected the prayerfor partition, and ordered that the action do proceed as one seekingmerely a declaration of title. The Supreme Court set aside thisorder, and directed that the action be proceeded with as under thePartition Ordinance. Lawrie, J., after going into the history ofthe question, reconsidered his opinion in Perera v. Perera, andlaid it down, after full consideration of the Ordinance, that neitherthe fact that the title either of plaintiff or defendant is denied,nor the fact that neither plaintiff nor defendant is in possession,is a good objection to the maintenance of a partition action. It isclear (though the contrary was argued before us) that he meantthat even the concurrence of both these facts would not put theplaintiff out of Court, for in that action plaintiffs’ title was denied,and they were also out of possession. Withers, J., made adistinction on the latter point, based on the fact that defendantsthemselves had ousted plaintiffs. He also thought Perera v.
Perera was rightly decided, because there neither plaintiff norhis immediate predecessor in title had ever enjoyed possession;but he did not endorse, he rather threw . doubt upon thecorrectness of, the dictum of Lawrie, A.C.J., in that case, to theeffect that ” it had often been held by this Court that a partitionsuit should not be brought by a man out of possession whosetitle is disputed.”
In D. C., Colombo, 12,901 (decided by Bonser, C.J., andMonereiff. J., on 4th July, 1909), plaintiff claimed title by
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M02 inheritance from his father, who, being in joint possession withnmffft%Str defendant, l181® died years before the action, and alleged that
*‘ after that event he and his brothers had entered into possession,
Wssdt. J. jjUj afj0r a month Were ousted by defendant. The District Judgedismissed the action, apparently on- the authority of one of thecases I have referred to, but this Court sent the case back forfurther inquiry, Bonser, C.J., intimating that, if plaintiff afterhis father’s death had no possession jointly with defendant, theaction ought, to be dismissed, and the same result should followif he had had possession, but had thereafter been forcibly excludedby defendant, thus holding in effect that if plaintiff was out ofpossession at the date of action (no matter how he lost possession)he could not sue for a partition. The Chief Justice apparentlydid not agree with .Withers, J., in the view that for defendant totake advantage of his own wrongful act of ouster was an“audacious defence.” I read the present Acting Chief Justice’sjudgment in that case to lay down that, if the action was broughtfor the simple object of partitioning the land, it ought to proceed,although it involved an inquiry into title, and he considered itof considerable importance to know whether plaintiff had beenin possession and then been ousted two years ago by defendant ashe alleged.
In Fernando v. Appuhamy (2 Browne’s Report’s 214), the latestof the cases cited to us, plaintiff’s title was denied by some of thedefendants, and (as the District Judge found) he had not himselfhad any possession. His action was dismissed, but the Acting ChiefJustice and myself sitting in appeal sent the case back for trial.In my judgment I mentioned Fernando v. Mohamadu Saibo asestablishing a different view of the Partition Ordinance from that-taken in the earlier cases, but the point principally dealt with inappeal was, whether the District Judge was entitled to takeaccount of the motives which influenced .the plaintiff in resortingto the Ordinance, and we held that he was not, and that plaintiffshould succeed if he showed that he had title to some share andwas therefore a co-owner.
, The effect of these decisions, which date from 1897, may besummed up thus: Lawrie, J., at first held the opinion that ifplaintiff’s title was disputed, he could not sue for partition, andWithers, J., decided that plaintiff’s title must be admitted at leastto some extent, and also that he cannot'rely on a contested title ifhe had never possessed. Later, Withers, J., appears to havethought (3 N. L. R. 324) that the possession of a predecessor intitle would be sufficient; and Lawrie, J., considered that neitherdenial of title nor absence of possession waB an obstacle to tho
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maintenance of an action. Bonser, C.J. (Lawrie, J., concurring),thought that there was no general rule that denial of plaintiff'stitle put him out of Court, but that partition suits should not bemade a substitute for ret vindicatio; and, later, that if plaintiff wasout of possession, even though he lost possession by defendantsousting him shortly before action, he must fail, thus differingfrom the view of Withers, J., who characterized the last as an“ audacious defence ” (3 N. L. R. 324). In this state of judicialopinion on the construction of the Ordinance, I think we arefree to hold, and ought to hold, that the effect of the plain wordsof the enactment is that a person claiming to be owner of anundivided share of land, and to be therefore entitled to possessionof it, is competent to maintain an action to have that land par-titioned, although neither he nor bis predecessor in title has hadpossession, and although the defendants wholly deny his title.In the present case, however, as I have pointed out already,possession of the. share plaintiff claimed by a predecessor in titleis admitted.
1903.
July 24, 24,and Sept. 17.
Wmn>«, J.
As we think the present action maintainable, it follows that theplaintiff who has succeeded in it ought not to be cast in doublestamp costs under section 4 of the Ordinance of 1897. Plaintiff’sappeal will therefore succeed. The District Judge held that inthe absence of possession and also of any admission of title,plaintiff’s proper remedy was an action for declaration of title, andthat he had brought the present action merely to escape thepayment of stamp duty. Yet the District Judge illogicallyupheld plaintiff’s title and made a decree for partition, and thenordered him to pay double stamp costs. I think we ought to followthe construction of section 4 of that Ordinance, which was adoptedby Bonser, C.J., and Lawrie, J., in De Saram ». Perera(unreported, decided on. 17th October, 1899), and hold that wherethe action is brought in good faith, even its failure ought not torender the plaintiff liable to that penalty.
Upon the evidence, first defendant is not solely entitled to amoiety, inasmuch as his deceased wife left two children (viz.,second defendant and Henry Martin), who inherited her one-fourthshare. I agree that the case should go back for the District Judgeto ascertain and deal with the minor’s interests. As to thebuildings, no doubt the defendants are solely 'entitled to them asimprovements, but the title to them must go with the title to thesoil.
In the partition, the Commissioner making it will, if possible,so divide the land that the buildings may fall in the defendant’s
moiety, but if that be not possible, some other mode of division
5-
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1002. will be adopted which will give defendants the entire value of theThe- general costs of partition (not merely the sur-
– , ’ veyor’s fees) will be borne pro ratd. The defendants will pay the
– Wbott, j- costs of the contention in the District Court and the costs of thiaappeal.
Middleton, J.—
This was . an action claiming partition of a piece of land calledKetakellagahawatta, and the District Judge awarded half of thisland to the plaintiff.and half to the defendant.
The decision on the facts of the case is, in my opinion, correct,except that from the defendant’s evidence it appears that his wife,since deceased, of whom he is the administrator, re-purchased theproperty in question in 1892, and that she left a minor child.
The case should be referred back to the District Judge for theamendment of the partition order, so as to show the respectiveshares of the defendant and his child, if this be so.
There were, however, other points raised by the appellant, thefirst being, whether possession was necessary to found a right tomake a claim for partition ?(2) Can a person not having an
admitted claim bring a partition action ?
' A great number of cases were quoted by appellant’s counsel toSupport the affirmative of the first question, and shewing that Mr.Justice Withers always adhered to his opinion that possession was.necessary; that Mr. Justice Lawrie originally agreed with Mr.Justice Withers opinion, but subsequently changed his views:and finally, that my Lord and my brother Wendt have confirmedMr. Justic Lawrie’s retractation in 3 N. L. R. 312 by their judg-ment reported in 2 Browne 214.
So far as 1 can ascertain from a perusal of the cases relied uponby Mr. ‘ <tayawardene, there is no attempt to show any reason or torefer to any authority to support the proposition that possessionis necessary to found a right to make a claim for partition. Allthat is, said is that it has been often so held.
In the Ordinance of 1868 there is nothing to show that posses-sion is a condition precedent to the institution of a partitionaction. On the other hand, there is the authority of Burge (vol. II.,p. 67.6), derived from the Digest, “ that the person to whom realproperty belongs in °c6mmon with another qui rem pro indivisocommunem habent, -whether they have ‘acquired it by succession,gift, purchase, or any other title, may compel a partition. It is notmaterial whether his dominium be directum or utile, or whetherone or more, or whether all the joint owners be or be not inpossegeion of the property.”
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Prom this it is clear that inheritance oases are not the only ones 1902.alluded to by Burge, as Mr. Jayawardene suggests.cmd^Sepi. *17
As regards the second question, it is only necessary, I think, to ___look at section 4 of the Partition Ordinance of 1868 to see that that Mb>m«tok,Ordinance evidently contemplated the proof, disproof, and exami-nation of the title of parties claiming a partition, and thereforethat persons having no admitted claim might bring partitionactions.
The contrary conclusion might have been derived from theOrdinance No. 21 of 1844, which, in section 10 and the followingsection only, appears'to consider the case of admitted joint ownersor owners in common.
The theory that underlies the provisions in the Ordinanceof 1868 probably is that it is expedient to avoid multiplicity ofsuits.
As regards the Stamp Act of 1897, it appears to me that thepenalty enforceable under section 4 would be properly applicableto some cases where a plaintiff failed to establish his title in apartition action instituted by him, as this might be an endeavourto improperly take advantage of the exemption from stamp duty.
To bring a partition action on a non-admitted title' is not, however,in my view, an endeavour to improperly take advantage of theexemption from stamp duty, as the Ordinance of 1863 contemplatessuch claims.
In my opinion, therefore, a person not having an admitted claimcan bring a partition action, and possession is not necessaryto found a right to make a claim for partition; nor should, theCourt enforce the payment of double stamp duty where a plaintiffin an action for partition relies on a title which is denied,' and hasto be, and is, proved.__
I would therefore affirm the judgment of the District Court sofar as the merits of the action are concerned, save, as I havebefore mentioned, as regards the amendment of the decree ofpartition; but I would set aside the order for payment of doublestamp duty.
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