Sirinatha v. Sirisena and others
v.SIRISENA AND OTHERS
COURT OF APPEALISMAIL. J. (P/CA),
A.LA. NO. 30/97(LG)
C. GAMPAHA NO. 3578/PSEPTEMBER 14, 1998
Partition Act, No. 21 of 1977 – S. 66 – S. 69 – Addition of Parties – NecessaryParties – Claimants before Surveyor – Rights acquired after registration of lispendens – Interest in the land-contingent interest.
The plaintiff-appellant instituted action to partition the corpus. The lis pendens wasregistered on 3.2.93. One J. made a claim before the Surveyor stating that hewas entitled to rights by purchase on 19.10.93; he also made an application tobe added as a party. The objection to him being added as party was upheld.
The 2nd defendant then sought to amend his statement of claim and moved tohave J. added as a necessary party on the basis that he is a party disclosedand as having made a claim before the Surveyor. The trial Judge accepted theamendment and permitted the addition of J. as the 3rd defendant, on appeal.
Considering the legal effect of a transfer of whatever rights that will beallotted to the transferor by a final decree in a partition action, the transfereecannot justifiably claim to be added as a necessary party.
The transferor is a party and his rights will be determined in the presentaction, the transferee of the yet undermined rights is not a necessary party.
It cannot be accepted that the transferee has a prima facie interest in theland and that he is therefore entitled to be added as a party in termsof s.69 (1 )b of the Partition Law as one claiming an interest in the land.
There is no basis for the interpretation that the phrase "interest in the land"in s 69 (1 )d includes his contingent interest.
Leave to appeal, Leave being granted from the judgment of the District Courtof Gampaha.
Sri Lanka Law Reports
[1998) 3 Sri Lfl.
Cases referred to:
Khan Bhai v. Perera (1923) 64 NLR 204.
Sirisoma v. Saranelis Appuhamy (1950) 51 NLR 337.
Babun v. Amarasekera, 1 S.C.C 24.
Annamalaipillai v. Perera – 6 NLR 108.
Subasena v. Porolis – 16 NLR 393.
Hewawasam v. Gunasekara – 28 NLR 33.
B. Lillie Fernando v. W. Silman Fernando (1962) 64 NLR 401.
G. L. Geethananda for plaintiff-appellant.
Manohara R. de Silva for 3rd defendant-respondent.
Cur. adv. vult.
October 08, 1998ISMAIL, J. (P/CA):
The plaintiff-appellant instituted an action in December ’92 to partitionan extent of 13.5 perches of land described in the schedule to theplaint. According to the pleadings the rights of the original owner JaneNona came to the plaintiff and to the 1st defendant and the balanceshare was to remain unallotted. The 2nd defendant intervened as anheir and claimed the balance share that was to have remainedunallotted. The lis pendens relating to this action was registered on3.2.93.
The preliminary survey was carried out on 2.9.94. One P. A.Chandra Jayasiri made a claim before the Surveyor stating that hewas entitled to rights in the land by purchase on deed No. 406 dated19.10.93 attested by N. K. S. Marapitiya, Notary Public. The saidJayasiri by a petition dated 2.9.94 also applied to be added as a partyto the action claiming that the 2nd defendant had by the said deedsold to him rights to which he would be entitled to in the action.
Both the plaintiff and the 2nd defendant objected to the additionof the claimant Jayasiri as a necessary party on the ground that theright claimed by him was one purchased after lis pendens wasregistered and that it did not therefore entitle him to have his rightsadjudicated in this action. Meanwhile, the 1st and 2nd defendants hadfiled their respective statements of claim.
Sirinatha v. Sirisena and others (Ismail, J.)
The trial judge by his order dated 1.12.95 refused the applicationof Jayasiri to be added as a party on the ground that the right claimedby him was obtained after the action was instituted, and that it wasa claim to a future right to which the 2nd defendant may becomeentitled.
The case was then fixed for trial to be held on 13.6.96. However,the 2nd defendant on that date moved to file an amended statementof claim. In his amended statement of claim filed dated 23.10.96, the2nd defendant moved to have Jayasiri added as a necessary partyon the basis that he is a party disclosed and as having made a claimbefore the Surveyor.
The trial judge by his order dated 6.2.97 accepted the amendedstatement of claim of the 2nd defendant and permitted the additionof Chandra Jayasiri as the 3rd defendant on the basis that he wasa claimant before the Surveyor. The plaintiff-appellant was grantedleave to appeal against this order, and in this appeal, he moves tohave the aforesaid order set aside and a direction made that Jayasiribe not added as a party to the action.
Learned counsel for the plaintiff-appellant submitted that the questionwhether Jayasiri should be added as a necessary party on the basisof his claim before the Surveyor and that he had purchased thecontingent rights of the 2nd defendant had already been consideredand rejected by the former District Judge in his order dated 1.12.95.He submitted that, in the circumstances, the contrary order now madeon 6.2.97 on the same matter by the succeeding Judge has beenmade without jurisdiction.
It was also submitted that the transfer to Jayasiri and his conse-quent claim that he on “deed No. 406 dated 19.10.93, attested byM. K. S. Marapitiya, Notary Public, became entitled to the rights inthe corpus” is illegal and void in terms of section 66 of the PartitionLaw, No. 21 of 1977. It was contended that the claim of Jayasiri wasto a speculative and a future right that need not be investigated atthis stage and that he is therefore not a necessary party to the action.
Section 66 of the Partition Law, No. 21 of 1977, which correspondsin the main with section 17 of the earlier Partition Ordinance, section67 of the Partition Act, No. 26 of 1951 and section 65 (1) of theAdministration of Justice (Amendment) Law No. 25 of 1975, is asfollows:
Sri Lanka Law Reports
 3 Sri LR.
“66 (1) After a partition action is duly registered as a lispendens under the Registration of the Documents Ordinanceno voluntary alienation, lease or hypothecation of anyundivided share or interest of or in the land to which theaction relates shall be made or effected until the finaldetermination of the action by dismissal thereof, or by theentry of a decree of partition under section 36 or by theentry of a certificate of sale.
Any voluntary alienation, lease or hypothecation made oreffected in contravention of the provisions of subsection (1)of this section shall be void:
Provided that any such voluntary alienation, lease orhypothecation shall, in the event of a partition action beingdismissed, be deemed to be valid.
In Khan Bhai v. PerersP* in a decision of a full bench, the ob-servation was made that persons desiring to charge or dispose oftheir interests in a property subject to a partition suit can only doso by expressly charging or disposing of the interest ultimately to beallotted to them in the action.
In Sirisoma v. Saranelis Appuhamy2>, Gratiaen, J. interpretingsection 17 of the Partition Ordinance held that it “prohibits the aliena-tion or hypothecation of undivided interests presently vested in theowners of a land which is the subject of partition proceedings. Thereis no statutory prohibition against a person's common law right toalienate or hypothecate, by anticipation, interests which he can onlyacquire upon the conclusion of the proceedings. That right is in noway affected by the pendency of an action for partition under theprovisions of the Ordinance.
The submission that the transfer by the 2nd defendant of the rightsto which he may become entitled to in the partition action, is obnoxiousto the provisions of section 66 of the Partition Law cannot thereforesucceed. Section 66 of the Partition Law prohibits only the alienationor hypothecation of undivided interests presently vested in the ownersof a land which is the subject of pending partition proceedings. There
CASirinatha v. Sirisena and others (Ismail, J.)23
was no bar preventing the 2nd defendant from transferring the interestswhich he would acquire upon the conclusion of the partition action.
The object of the prohibition in section 17 of the Partition Ordinance,No. 18 of 1863, was explained by Phear, CJ. in Babun v. AmarasekeraFas follows:
“The sole purpose of the clause seems plainly to be, to reservefull effect to the legal proceedings for partition, when once instituted,and to take care that it shall not be in the power of any partyconcerned to defeat them or embarrass the course of them whiletransferring his share or any interest in the property to a stranger.”
In Annamalaipillai v. Perera,iA) Middleton, J. cited these words withapproval and in Subaseris v. Prolis,(5) Woodrenton, ACJ. stated that:
“the clear object of the enactment was to prevent the trial ofpartition actions from being delayed by the intervention of freshparties whose interest had been created since the proceedingsbegan.”
These words of Woodrenton, ACJ. were adopted by Dalton, J. inHewawasam v. Gunasekera™.
Thus it is clear that the object of section 66 of the Partition Lawis to prevent the passage of a partition action being prolonged bypermitting new parties to be added on every occasion that the interestspresently vested in the parties to the action are alienated orhypothecated.
The effect of the sale of a contingent interest was considered inSirisoma v. Saranelis Appuhamy (supra) and the following propositionwas set out to be considered as settled law:
“If the instrument is in effect a present alienation or hypothecationof a contingent interest, the rights of ownership (or the hypothecaryrights) vest in the grantee automatically upon the acquisition ofthat interest by the grantor; and no further instrument of conveyanceor mortgage requires to be executed for the purpose; the executionof 'a deed of further assurance1 confirming the result which hasalready taken place may in certain cases be desirable but it isnot essential in such a case”.
Sri Lanka Law Reports
 3 Sri LR.
This was.followed in B. Sillie Fernando v. W. Silman FernandoWthe head note to which is as follows:
“Where, prior to the entering of the interlocutory decree in a partitionaction, a party transfers by sale or donation whatever will be allottedto him by the final decree, the lot in severalty finally allotted tothe transferor or those representing him (if he has died beforeentering the final decree) will automatically pass and vest in thetransferee, without any further conveyance by the transferor or hisrepresentatives.”
Considering the legal effect of a transfer of whatever rights thatwill be allotted to the transferor by a final decree in a partition action,the transferee cannot justifiably claim to be added as a necessaryparty. The transferor is a party and his rights will be determined inthe present action. The transferee of the yet undetermined rights isnot a necessary party to the action. I do not accept the submissionof counsel that the 3rd defendant-respondent Jayasiri has a primafacie interest in the land and that he is therefore entitled to be addedas a party in terms of section 69 (1 )(b) of the Partition Law as oneclaiming an ‘interest in the land’. Admittedly Jayasiri claims to havea contingent interest in the land upon deed No. 406 dated 19.10.93.But there is no basis for the interpretation that the phrase ‘interestin the land’ in section 69 (1 )(d) includes also his contingent interest.As the 3rd defendant-respondent has no present interest in the landand as no opinion could justifiably be formed by court that he shouldbe made a party, the order permitting him to be added as a partyto the action cannot stand.
The trial judge has in his order dated 6.2.97, erred in acceptingthe position taken up by the 2nd defendant in his amended statementof claim that Jayasiri should be added as a necessary party on thebasis of his claim before the Surveyor. We therefore set aside thesaid order and direct that the trial be continued without an amendmentto the caption by adding Chandra Jayasiri as the 3rd defendant.
The appeal is allowed with costs.
TILAKAWARDENE, J. – I agree.