SUWENERIS v. MOHAMED

003-NLR-NLR-V-30-SUWENERIS-v.-MOHAMED.pdf


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Present: Fisher C.J., Drieberg J., and Jayewardene A..T.SUWENERIS ». MOHAMED.
22-C. R. Galle, 6,203.
Partition—Action for damages—Act or omission—Breach of legal duty—Negligence—Ordinance No. 10 of 1863, s. 9.
[Per Fisher C.J. and Drieberg j. (Jayewardene A.J.,dissentiente).]
An action for damages under the proviso to section 9 of thePartition Ordinance must be based upon a wilful act or omissionarising from a breach of legal duty on the part of the defendant.
C
ASE referred by Jayewardene A.J. to a Bench of three Judges.The facts are stated in the reference as follows :—
The plaintiffs bring this action to recover a sum of Rs. 300from the defendant, alleging that they were the owners of a 5/12share of a tiled house and of the entirety of a thatched house usedas a kitchen standing on a land called Pelawatta, but that theentirely of these two houses were allotted to the defendant by thefinal decree in partition case, D. C. Gaffe, No. 20,908.
1928.
1928.
JSwveneris v.Mohamed
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One Gunahinge Pingo by deed No. 20,116, dated May 23, 1908,gifted 5/6 share of the tiled house to her son Sadiris and her grand-daughter Anohamy.
-Anohamy died some time ago leaving as her heirs, her husbandSuwaneris, 1st plaintiff, and three children, the 2nd, 3rd, and 4thplaintiffs who are minors.
By deed No. 197 of 1916, Sadiris sold his share to his wife Saino,and by mortgage bond No. 2,943 dated September 13, 1920,Sadiris and Saino mortgaged their shares to one William Singho.
A partition action (D. C. Galle, No. 20,908) was instituted byone Sabiathu Natchia in respect of this land, Pelawatta-r-thepresent plaintiffs were altogether omitted from this action. Preli-minary decree was entered on March 11, 1925, and these twohouses numbered 7 and 8 on the plan were allotted to Sadiris,who was the 18th defendant. Anohamy had built the kitchen,and the plaintiffs are thus entitled to 5/12 of the main housesand the entirety of the other house.
William Singho put his mortgage bond in suit, issued writ, andcaused the Fiscal to seize the houses No. 7 and 8 in the preliminaryplan filed in D. C. Galle, No. 20,908. One Sirineris purchased theproperty sold in execution, but, was unable to pay the purchaseamount, even after an extension of time to pay the amount due.The property was sold a second time and purchased by the presentdefendant, who obtained Fiscal’s transfer No. 18,604 dated April9,1926 (D1). The defendant then intervened in the partition action,and was added as the 24th defendant. The preliminary decreewas amended on May 17, 1926, and the houses in question wereallotted to this defendant, and final decree entered accordingly.The defendant has thus by his act deprived the plaintiffs of theirshares in the two houses.
The plaintiffs were unaware of the pendency of partition pro-ceedings. The 2nd, 3rd, and 4th plaintiffs are minors of the agesof 15, 12,f and 9 years, respectively. The 1st plaintiff says that heand his wife Anohamy lived on the land but that he went to Anu-radhapura and remained there for about six years. His wifecame in search of him and died at Anuradhapura. There is noreason to disbelieve the 1st plaintiff. He says that he.learnt of the' sale of the' houses only after the partition case.
The learned Judge has dismissed plaintiffs action holding that thedefendant was an innocent purchaser, and that it was owing to Sadiris’act that the plaintiffs were deprived of their interests and that plain-tiff could recover damages from Sadiris. It has not been provedthat the defendant had any knowledge of the rights of the plaintiffs.
Ameresekere, for plaintiffs, appellant.
Tisseverasinghe, for defendant, respondent.
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August 28,1928. Fishes C.J.—
In tins case the plaintiffs sued the defendant for damages alleging(paragraph 5 of the plaint) that “ In partition case No. 20,908of the District Court of Gaffe, the defendant above named hasfraudulently and dishonestly got allotted to himself ….two houses thereby depriving the plaintiffs of their rights in thesaid two houses.” It is not disputed that the plaintiffs had rightsin the two houses prior to the partition decree, and for the purposeof this appeal it must be assumed that the plaintiffs had no know-ledge of the existence of the partition action while it was in progress.The learned Judge found, and his finding is apparently well based,that the defendant was an innocent party so far as knowledgeof any rights or claims of the plaintiffs are concerned. The defend-ant’s position is that he bought the interests of one Sadiris, whowas a parly to the partition suit at a sale in execution and gota Fiscal’s transfer. At that time an interlocutory decree badbeen made in the partition suit allotting the two houses to Sadiris.The defendant got himself made a party to the suit0and final decreewas made allotting the two houses to him.
The only question for our decision is whether the plaintiffs havea right to claim damages from the defendant by virtue of theproviso to section 9 of the Partition Ordinance, which reads:
“ Provided that nothing herein contained shall affect the right ofany party prejudiced by such partition or sale to recover damagesfrom the parties by whose act whether of commission or omissionsuch damages accrued.”
The words “ affect the right ” indicate that it was not intendedthat any new right of action should be brought into being by theproviso. The right is a right “ to recover damages from theparties by whose act whether of commission or omission suchdamages accrued.” A right to recover damages must be basedon a breach of a legal duty, and in my opinion the words of theproviso can only point to some breach by the party sought to becharged of a duty which he owed to the person seeking to recoverdamages. They cannot, in my opinion, refer to something whichis solely attributable to the operation of the Ordinance. I cansee nothing which the defendant has done or omitted which his
duty to the plaintiffs required him not to do or to omit. By no 'fault or unfairness on his part, by no lack of care or inquiry whichhe was under any obligation to make, but simply and solely byavailing himself of the Partition Ordinance he has been given anindefeasible title to what he purchased under due process of law.The position in which the plaintiffs find themselves is thereforesolely attributable to the operation of the Ordinance in favour ofone who has in good faith and without any notice, express or im-plied, of the rights of the plaintiffs availed.himself of its provisions.
1928.
Suweneria tKMohamed
1928.
' Fishes C.J.
Suweneris v.Mohamed
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I entirely endorse the view expressed by Bertram C.J. in Fernandav. Fernanda1 that “ It is clear that no action lies under section 9,except upon proof of the breach of a legal duty. The provisoto section 9 does not create fresh remedies, but merely keeps intactsuch remedies as exist. If a person claims damages under thatproviso, he must show that the person against whom he claimsthem had been guilty of a breach of a legal duty towards him.That legal duty may be sought for outside the Ordinance, or itmay be sought for within the four comers of the Ordinance,”and with the view expressed by de Sampayo J. in Appuhdmy v.SamaranayaJce2 in which he says : “ I do not think that the partiesto a partition action will be liable in damages if they acted bona fideand in ignorance of the rights of any third party.” It does notseem to me that the decision in Cassim v. de Vos et al ® necessarilyconflicts with those views. In that case the defendant knew of theclaim of the plaintiff and failed to make him a party to the partitionaction. Ennis J. at page 480 says:“ In the circumstances,
I am of opinion that the plaintiff’s right to bring this action aroseon the act of the first defendant in instituting the partition actionwithout making the present plaintiff a party to that action. It isunnecessary to consider whether the act of the 1st defendantwas fraudulent or wilful. It is sufficient that he caused the damageand that it was done knowing that the present plaintiff had preferreda claim to the land.” Apart, therefore, from any fraudulent orwilful act there was a ground for imputing a breach of duty to thedefendants. In this case there is none. The policy of the lawis always to protect as far as possible one who has done nothingbut act in an ordinary and honest way, in this case a bona fidepurchaser for value ; and I am of opinion that the judgment of theDistrict Judge dismissing the action was right. The. appeal willbe dismissed and the first plaintiff will personally pay the costsboth in this Court and in the District Court.
Drieberg J.—
The facts of this case are set out in the judgment of my brotherJayewardene. The principal issues on which the trial proceededwere these:—
Were the plaintiffs entitled to 5/12ths of the 11 cubits house
and the 5 cubits thatched house ?
Did the defendant get the same allotted to him in D. C.
case No. 20,908 ?
What damages are plaintiffs entitled to 'by reason of their
being deprived of the share of the house ?
1 {1918) 20 N. L. R., at page 411.2 (1917) 19 N. L. R., at page 405.
3 (1924) 25 N. L. R. 477.
/
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Was defendant aware of the rights of the plaintiff 1
Did defendant fraudulently and dishonestly get the^ said Dbtebkbo
houses allotted to him ?
Should plaintiff’s action, if any, be against Sadiris ?
Suwenerie «.Mahomed
The trial Judge found that the respondent was an innocentpurchaser who did not know of the appellant’s rights and that hedid not act fraudulently. The 2nd and 3rd issues were apparentlyframed to ■ support the contention that the bare circumstancethat the respondent procured in his favour title to the entiretyof the houses made him liable in damages to the appellants, themeasure of damage being the value of their interest in these houses.This contention was advanced at the argument of the appealbefore my brother Jayewardene who submitted the question forconsideration before a Bench of three Judges.
Except for certain observations by Ennis J. in Cassim v. de Vos 1there is no authority for thfo proposition and it is not consistentwith other judgments in which the effect of the proviso to section 9of the Partition Ordinance has been considered.
In Appuhamy v. Samaranayake2 a land was partitioned amongpersons who alleged a title derived from Ausadahamy. Theplaintiffs claimed damages, claiming title from a person from whomAusadahamy had taken a usufructuary mortgage of the land in1868. The mortgage bond was not registered. . The plaintiffsaction foiled on other grounds also, but the question now beforeus was raised and de Sampayo J. said :—
“ I am not aware of any case in which an action has been heldto lie against a party to a partition action simply becausehe was such party and got a portion of the land. Thisis what the plaintiffs seek to maintain in this action,since, although in the plaint they alleged fraudulentmisrepresentation, they abandoned that position, and noissue was stated at the trial, and no evidence given onthat point,”
and further,
“ I do not think parties to a partition action will be liable indamages if they acted bona fide and in ignorance of therights of any third party.”
Referring to this feature of the case Ennis J. said :—
“ The parties to the partition action were unaware of thebond and the omission to mention it was therefore notdeliberate.”
1 (1924) 25 N. L. R. 477.
* (1917) 19 N. L. R. 403.
1988.
Dkisesso
3.
Suiventrigv.
Mohamtd
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In addition to cases of fraud and deliberate omission, the autho-rities on -which are noted on page 222 of Jayewardene The Lawof Partition in Ceylon, 2nd ed., the proviso would undoubtedlyinclude negligence on the part of the defendant;
In Fernando v. Fernando1 Sir Anton Bertram C.J., who agreedwith the opinion of de Sampayo J. in Appuhamy v. Samaranayake(supra), in the passage quoted by my Lord the Chief Justice in hisjudgment sayB that the act or omission must amount to a breachof a legal duty towards the plaintiff. Negligence is a breach ofthe legal duty to take care. I know of no case where damageswere claimed on the ground of the defendant’s negligence, butin Baba Appu v. Siyadoris2 Loos A.J. based his judgment alter-natively on the ground that if the 'defendant was a stranger heshould'have made inquiries about the rights of the plaintiffs whoowned a house on the land and were residing in it.
The authorities go on further than this. The endeavour toextend relief in the manner claimed by the appellants is basedon an opinion expressed by Ennis J. in Cassim v. de Vos (supra)that an action under section 9 need not be based on any wilfulor fraudulent act, but may be based on any act which gives riseto damages; he suggested that the action permitted was oneret vindicatio in which by reason of an action for declaration oftitle to and recovery of possession of the land being barred by theconclusive nature of the partition decree, the alternative claimfor the value of the land was allowed.
It appears to me to be extremely difficult, if not impossible, toregard the action allowed by section 9 as having any affinity to anaction rei vindicatio. It is true that this form of action is dealtwith in Maasdorp’s Institutes of Cape Law, Book III., Part II., as arelief for actionable wrongs, but, it should be noted, for actionablewrongs against the rights of ownership. The whole basis of anaction rei vindicatio is the title, or rather the superior title, of theplaintiff and a denial of that title or an interference with the plain-tiff’s rights under it by the defendant. An action under section 9cannot be of this nature for the plaintiff in it cannot rely on title.
Further, can a title under a partition decree have the qualityof being good and conclusive against all persons if the holderof the title, simply for the reason that he is the holder of it, isliable in damages to some person not a party to the proceedingswho, but for the decree, would be the owner of it ?—and damageswould mean not merely restitution of the value of the land butalso compensation for injury caused by his being deprived of it.If the legislature had the intention that a partition decree titleshould be subject to such a claim I do not think it would haveexpressed it in the words of the proviso which founds the action1 (1918) 20 N. L. R. 410.a (1919) 7 C. W. R. 72.
IMS.
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0)1 an act or omission of the defendant and not on the mere cir-cumstance that he holds the title which but for the decree wouldhe in the plaintiff.
Cases may arise where the act or omission which prejudices theplaintiff is not that of the person to whom his land has been decreed,hut of another; for example, the Commissioner might wronglyinclude the plaintiff’s land in the partition and it might be allottedto a party to the action who was not aware of the error until afterthe final decree.
Who then would be liable ? In the view I have taken I shouldsay the Commissioner. There is nothing in the section to limitliability to parties to the partition action. The legal duty, thebreach of which gives rise to the action, may exist even outsidethe Ordinance ; see Anton Bertram C.J. in Fernando v. Fernando(supra) on page 411.
If the submission of the appellants is correct the party to whomthe land was allotted will be liable though the act or omissionwhioh prejudiced {the plaintiff was that of the Commissioner.
It was stated by Sir Anton Bertram C.J. in Fernando v. Fernando(supra) that the proviso to section 9 created no fresh remedybut merely kept intact such remedies as existed. A similar opinionwas expressed in the earlier cases of Sado v. Mendis1 and Fonsekav. Per era.2
Under section 12 of Ordinance No. 21 of 1844, repealed byOrdinance No. 11 of 1852, which was the first enactment on thissubject, the same effect is given to a partition decree as by section 9of Ordinance No. 10 of 1863, but there is no such provision as inthe proviso to section 9.
We were not referred to any cases showing on what groundsrelief was granted against decrees under section 12 of OrdinanceNo. 21 of 1844.
In Sado v. Mendis (supra) Phear C.J. dealing with this pointsaid:—
Dhuum
3.
Suwentris v.Mohamed
“ Even if the enactment of clause 9 of Ordinance No. 10 of 1863had applied to the case, it would have been necessaryfor" the plaintiffs, in order to obtain the benefit of theproviso of that clause in the shape of a decree for damagesagainst any defendant, to prove as against him some -act of commission or omission in relation to the saleof the property such as would have entitled, the plaintiffsto recover from him consequent damages independentlyof the Ordinances ; for it is important to observe that theproviso does not create any new ground of action, orright to recover any damages; it simply saves -all suchrights as would have existed without the enactment.”
1 (1879) 2 S. C. C. 127.* (1915) 1 O. W. B. 197.
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18?8.
Dbcbbebg
J.
Suweneria v.Mohamad
' This lends strong support to the view that the act or omissionmust be something other thanthe mere acquisition by the defendantof the plaintiff’s rights.
It appears to me, however, to be unnecessary to look outsidesection 9 for a proper understanding of the proviso or to seekto trace in it by analogy the features of other actions by whichrelief can be obtained against decrees which have not the specialqualities of partition decrees.
A partition decree creates a title which is good and conclusivefor all purposes ; it eliminates the title of a previous and true ownerwho is not a party to the proceedings but allows him an action fordamages against the person by whose tortious act this was caused.
It was urged that the respondent was guilty of an omissionwhich entitled the appellants to relief. No issue was stated asto negligence on the part of the respondent and it would be difficultto hold against him on this pointwithout giving him an opportunityof meeting it. There is, however, sufficient material to hold inin his favour. What was sold by the Fiscal were “ the housesmarked 7 and 8 in preliminary plan in D. C. Galle, No. 20,908,as per partition decree in the said case.”'
Though the preliminary decree- adjudicating upon the title tothe land and decreeing a partition is not the decree to which con-clusive effect is given by seetion 9, it is in the absence of subsequentintervention by others the final adjudication by the Court uponthe title to the land.
It is not possible, in considering whether the respondent wasguilty of negligence in not further investigating the title he bought,to regard the decree as a mere decree inter partes in, for example,an action for title to land. It is not an adjudication upon matterssubmitted by the parties but an investigation by the Court intothe title to the land.
In Mather v. Tamotharam Pillai 1 Layard C.J. said :—
“ The judge cannot order a decree unless he is perfectly satisfiedthat the parties before the Court are entitled to theproperty, alleged by the plaintiff to be held by him incommon with the defendants. The Court must satisfyitself that the plaintiff has made out his title, and unlesshe makes out his title, his suit for partition must bedismissed. It has been repeatedly held by this Courtthat the District Judge is not to regard the partition suitas merely to be decided on issues raised by, and between,the parties to the suit, and that the plaintiff must strictlyprove his title, and, only when he has done so to thesatisfaction of the Court, has he established his right
1 (1903) 6 N. L. R. 246.
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to maintain such action. The paramount duty is oastby the Ordinance upon the judge himself in partitionproceedings to ascertain who are the actual owners ofthe land sought to be partitioned.”
There was no intervention after the preliminary decree, no noticeof tfe claim of the appellants; and I do not think it can be saidthat under the circumstances the respondent was guilty of negligencein having himself substituted in place of Sadiris and proceedingto final decree.
Nor would an examination of available records have revealedanything to put him on inquiry or given him notice of the appellant’sclaim. He would have found from the proceedings that Sirineris,a brother of Sadiris, and Anohamy, through whom the appellantsclaim, had acknowledged the title of Sadiris to these houses inthe partition action and had bid for and purchased them at thefirst Fiscal’s sale. It was on his making default in payment thatthey were again sold and purchased by the respondent.
The appellants were not at the time living in the houses or onthe land and there was nothing to direct his attention to theirclaim.
There is some evidence in this case-which has escaped attentionin the judgment of the lower Court. The 1st appellant said thatSimon sent him P 4 saying that the property was for sale ; P 4is a copy of the Fiscal’s sale notice produced by the 1st appellant,and if his evidence is correct it means that he had notice of thepartition action which is mentioned in the sale notice and thathe therefore cannot maintain this action.
It is not necessary however to base a judgment on this groundfor the appellants have failed to show that the respondent is liableon the ground referred for decision by my brother Jayewardeneand have also failed to prove that he was guilty of a breach ofa legal duty.
I agree with the order made by my Lord the Chief Justice.Jayewardene A.J.—
The plaintiffs bring this action to recover the sum of Rs. 300alleging that they were the owners of a 5/12 share of a tiled houseand of the entirety of a thatched house standing on a land calledPelawatta.rfeut that these houses were allotted to the defendantby the final decree in a partition case, D. C. Galle, No. 20,908.The plain tigs were unaware of the pendency of the partition action.The 2nd, 3rd, and 4th plaintiffs are minors of the ages of 15, 12,and 9 years® respectively. The houses were claimed by one Sadirisand allotted to him in the interlocutory decree, but they wereseized and sold by the Fiscal on a writ against Sadiris and boughtby the present defendant who obtained Fiscal’s transfer dated
1988.
Dbiebebo
J.
Suweneria'v.
Mohomed
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1928.
Jaykwab-
DENB A.J.
Suioeneria v,Mohamed
April 9, 1926. The defendant intervened in the partition actionand was added as the 24th defendant. The interlocutory wasamended on May 17,1926, and the houses in question were allottedto the defendant and final decree was entered accordingly. Theplaintiffs are thus deprived of their shares in the two houses. Ithas not been proved that the defendant had any knowledge of thelights of the plaintiffs. The learned Judge has dismissed theaction on the ground that the defendant was an innocent purchaser,and that it was owing to Sadiris’ act that the plaintiffs were deprivedof their interests, and that the plaintiff could recover damagesfrom Sadiris. The plaintiffs have appealed. The question ariseswhether the defendant, who was ignorant of the rights of theplaintiffs and had purchased the interests of a party who had beenallotted those -interests in the interlocutory decree, can be heldto be liable to the plaintiffs in. damages, under the proviso tosection 9 of the Partition Ordinance.
Damages constitute the compensation which a plaintiff canrecover by process of law in respect of injury ; such injury arisingthrough breach of contract or-commission of a tort.
It is essential to an action in tort, says the Privy Council, thatthe act complained of should under the circumstances be legallywrongful as regards the party complaining ; that is it must prejudi-cially effect him in some legal right. ' Rogers v. Rajendra Dvtt}A legal right is a fight residing in a person to the exclusion of theworld at large and includes rights; (1) of reputation, (2) of bodilysafety and freedom, and (3) rights of property or estate. Thesethree rights embrace all the personal rights that are known to thelaw (per Cave J. in AUen v. Flood 2).
Sir A. F. S. Maasdorp C.J., in his Institvles of Cape Lawunder the head of actionable wrongs treats of wrongs to ownership.(Bk. 3, Pt. 2, Ch. 3.) Bights to ownership consist in the exclusiveright of an owner to dispose of and deal with his own property,which includes the right to the inviolability or security of suchproperty from interference by others. Wrongs to ownership,on the other hand, consist in the violation of any of these rights,whether the property in any case be movable or immovable. Hesays that similar rules will .apply to immovable as to movable pro-perty. Thus an ojvner who has been illegally deprived of or keptout of the possession of his land will be entitled to a similar actionto that which lie at suit of an owner of movables illegallyconverted. A landowner, therefore, will be entitled to damagesfor encroachment made on to his ground by a building of hisneighbour, even though, owing to his delay in pressing his claim,the Court may refuse to order the removal of such building.Maasdorp’s Institvles, Vol. IV., 26 and 37.
1 {I860) 13 Moore P. C. 209.* (1898) A. C. 29.
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la Rogers v. Rajendra Dutt (supra), the Privy Council held thatif the act which the defendant did was itself wrongful, as againstthe plaintiffs and produced damage to them, they must have thesame remedy by action against the doer, whether the act washis own, spontaneous and unauthorized, or whether it was doneby the order of the superior power, nor in the case of damageoccasioned by a wrongful act, that is, an act which the law esteemsan injury, is malice a necessary ingredient to the maintenanceof the action : an imprisonment of the person, a battery, a trespasson land, are instances and only instances, in which the act may bequite innocent, even laudable, as to the intention of the doer,and yet if any damage, even in legal contemplatipn, be the conse-quence, an action will lie—and the Privy Council stated “ No doubtan act which prima facie, would appear to be innocent and rightful,may become tortuous, if it invades the right of a third person.A familiar instance is, the erection on one’s own land of anythingwhich obstructs the light of a neighbour’s house : prima facie,it is lawful to erect what one pleases on one’s own land ; but ifthe neighbour has acquired the right to the light, the erectionof any building which obstructs it is an invasion of the right,and so not only does the damage, but is unlawful and injurious.”
In Spencer v. The Registrar of Titles,1 where the plaintiff broughtan action for damages for deprivation of title by reason of the grantof a certificate of title to a third party, the Privy Council held thatthe plaintiff was entitled to succeed on the ground that the plaintiffhad the fee simple and that the person to whom the certificatewas issued had no beneficial interest or estate in the fee simple,and on a later appeal,2 the Privy Council assessed the measureof damages as to the value of the land when the plaintiff’s titlefell into possession.
On May 17, 1926, the District Judge amended the interlocutorydecree in the partition case by giving the intervenient, 24thdefendant, that is the present defendant, the houses which wereoriginally allotted to Sadiris, the 18th defendant. In his evidencethe defendant stated “ I noticed Sadiris. After due notice I wasallotted the houses after my purchase. Sadiris applied for thehouses. I produce D 8—copy of preliminary decree showing theamendment after my intervention.”
To my mind this evidence shows positive acts of intervention,notice and claim. All the parties to a partition action have thedouble capacity of plaintiff and defendant. Bandi Naide v. AppuNaide.3 “ Duplex auiem haec actio dicitur, eo quod in ea singularpersonae duplex jus habent, pula, agentis el ejus cum quo. agitur etpar causa omnium videtur.” Voet X. II., 3.
1 (1906) A. C. SOS.» (1910) 103 L. T. 647.
5 (1923) 5 C. L. B. 192,196.
1928.
Jatewar- 'DBMS A.J.
Biiu/eneris v.Mohamed
30/5( 22 )
1928.
Javbwab-BENE AiJ .
Suuierwris v.Mohamed
In order that they may be recoverable, damages must be suchas arise not only naturally but also immediately from the actcomplained of. Damages are too remote where they are not theproximate or immediate result of the act complained of, but ofsome intervening cause. In determining whether damages aretoo remote it is necessary to consider whether the original causeso far continued to operate that it was the proximate cause of theessential damage. The operation of the original cause ceases,and the chain of causation is broken, by the intervention of inde-pendent volition. Volition is not to be regarded as independentwhere it is due to terror or to an overmastering impulseengendered by the wrongful act of the defendant. (10 Halsbury318-320.) .
Sadiris had only an interlocutory decree in his favour, andthat order, unless proceeded with, was useless for all purposes.Peris v. Perera.1 It was binding on the parties to it, but did notbind others like the present plaintiff, Catherinahamy v. Babahamy.2The operation of Sadiris’ original wrongful act had ceased andthe c&ain of causation broken by the interposition of the defendant’sindependent act and volition. The real, direct and immediatecause of the damage, to use the language of Lord O’Brien C.J.in Butterby v. Drogeda Corporation,3 was the defendant’s act.
The act of the defendant was bona fide and the question remainswhether the defendant can still be held to be liable in. damagesunder section 9. In Appuhamy v. Samaranayake* de Sampayo J.thought that the parties to a partition action will not be liablein damages if they acted bona fide and in ignorance of the rightsof a third party, and in Fernando v. Fernando,6 Bertram C.J.was of opinion that a person claiming damages must show thatthe defendant had been guilty'of a breach of legal duty towardshim, and in DuUewa v. Dvllewa,® the expression “ act of omission ”was defined as implying some element of- wilfulness and intentionto produce a prejudicial result.
The question was fully considered in Cassim v. De Vos,7 Ennis J.was of opinion that Appuhamy v. Samaranayake (supra) andFernando v. Fernando (supra), were not binding authorities,as in the former case the plaintiffs knew all about the partitioncase when it was proceeding and stood by and did nothing, andin the latter case the defendants had not acted bona fide, and wereguilty of a deliberate omission. Ennis J. thought that an actionunder section 9 need not be based on any wilful or fraudulent actbut may be based on any act giving rise to damage. De Sampay o J.
1 (1896) 1 N.L. R. 362.«(1917) 19 N. L. 403.
* (1908) 11 N.L. R. 20.6 (1918) 20 N. L. R. 410.
(1907) 2 I. R. 134, 21 Hala.447.. • (1922) 24 N. L. R. 166.
(1924) 25 N. L. R. 477.
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agreed with this judgment. It shoula be mentioned that inthis case it was found that the defendant knew of plaintiff’s olsimand omitted him from the partition action.
In his book on the Law of Partition, Mr. Justice A. St. V. Jaye-wardene inclines to the view that the action provided by theOrdinance was intended to enable persons prejudiced to obtaincompensation for the value of the interest in the land of whichthey have been deprived, and which by the decree has been givento parties not really entitled to it, whether there has been fraud,negligence or breach of duly or not, and whether the act of com*mission or omission was wilful or accidental. That interpretationseemed to the author to be sound and just. The solution to thedifficulty may perhaps be found in the language of Bertram C-J.in Fernando v. Fernando (supra). He says: “ I think it is dearthat no action lies under section 9 except upon proof of the breachof a legal duty. The proviso to section 9 does not create freshremedies but merely keeps alive such remedies as exist. If a personclaims damages under that proviso, he must show that the personagainst whom he claims them had been guilty of a breach of legalduty towards him. That legal duly may be sought for outsidethe Ordinance, or it may be sought for within the four comersof the Ordinance.”
The legal duty outside the Ordinance towards an owner, as Ihave attempted to show, is not to trespass on, or deprive 'him ofhis rights. In that view the defendant is guilty of a breach oflegal'duty and is answerable to the plaintiff. I venture to think,with all respect, that the principle enunciated by Bertram C.J.is the correct one and solveB every difficulty.
It has been held that the proviso creates no new ground ofaction or rights to recover damages but saves all such rights aswould have existed without the enactment. Sado v. Mendis,1Fonseka v. Perera,2 and Fernando v. Fernando (supra). It isthus open to the plaintiff to prove as against the defendant someact of commission or omission as would have entitled them todamages independently of the Ordinance. Quite apart fromthe Ordinance, a party claiming title to a thing including landhas the right to bring an action to vindicate his title, but if thething itself cannot be recovered, he has a claim for the value of thething as shown in the passage quoted from Maasdorp.
It is contended that the final decree itself is a bar to the presentaotion. If this contention holds good, the partition decree musthave its full effect, until it is set aside whether for fraud or othercause. A partition decree does not become ineffectual and cannotbe ignored, when the plaintiff proves that he was omitted by fraud,wilfulness, or malice, from the action. Such circumstances may
‘ (1879) 2 S. C. O.127.1 (1915) 1 C. W. R. 197.
1928.
Jaxbwab-ram A. J.
Swoeneris v.Mahatnei
1928.
Jayhwab-DKKB A.J.
Suwenerie v.Mohamed
raise a personal equity in favour of the plaintiff but will not precludethe defendant from setting up the judgment. The judgment of •a Court cannot be altered or ohanged andis binding over afterwardsas long as it remains in force and unreserved. It may be impeachedfor fraud and may be set aside if fraud is proved. Hvbeboy v.Vuluboy.1 If the decree itself can be pleaded in bar the provisoto section 9 becomes of no effect. To my mind the proviso wasenacted with the special purpose of neutralizing the effect of section 9and to compensate owners of land for the loss they might sustainby the rigid operation of the section, as suggested by the learnedauthor of the Law of Partition. It gives the sufferer a right to• be compensated in damages for a wrong which cannot be undone.It is worthy of note that in none of the many cases under thissection has it been stated that the partition decree itself acts asa bar or defence to an action under the proviso'.
It is a principle in the construction of statutes that you mustnot construe the words so as to take away rights which alreadyexisted before the statute was passed, unless you have plain wordswhich indicate that such was the intention of the Legislature{Mansfield v. Mansfield2), and it is a rule not to construe a statuteas interfering with or injuring persons’ rights, without compen-sation, unless one is obliged so to construe it {Attorney-General v.Horner3).
The defendant has bought the plaintiff’s property at an executionsale against Sadiris to whom it did not belong. The fact thatit was a Fiscal’s sale does not to my mind affect the question.Fiscal’s transfers are often successfully impeached. If he doesnot restore the property to its real owner, but pleads section 9of the Ordinance he is still liable, under the proviso, in damagesto the full value of the property. The defendant must not bepermitted to be enriched at the expense of the plaintiff. Threeof the plaintiffs are minors. The Surveyor valued the two housesat Bs. 650—the defendant has only paid Es. 260 at the Fiscal’ssale, and the plaintiffs claim Es. 300. The defendant will stillprobably stand to gain, even though he has bought from a personwho had no title.
In their plaint the plaintiffs pleaded that the defendant fraudu-lently and dishonestly got allotted to himself the entirety of thehouses and this was the 5th issue, but the 2nd issue made no mentionof fraud or dishonesty, but raised the bare question whether thedefendant got the houses allotted to himself in the partition case.The 4th issue was merely whether the defendant was aware of therights of the plaintiffs.
1 (1882) 6 Bom. 703.* (1889) 43 Ch. D .12,17.
* (1884) 14 Q. B. D. 2S7.
I have stated my reasons at length, because I am on somo pointsnot in agreement with eminent judges, whose opinions are entitledto the greatest weight and respect.
I would hold that the plaintiffs have been deprived of theirrights to the two houses by reason of the act of the defendantin getting them allotted to himself in the final decree in the partitioncase, and I answer the 2nd issue in the affirmative. 1 would setaside the judgment in appeal and enter judgment for plaintiff asprayed for with costs.
1928.
Jaybwajs-DUMB A.J
Svwenerie v.Mohamed
Appeal dismissed.