ATHPUNATHAN AND OTHERS
COURT OF APPEALANANDACOOMARASWAMY J., (P/CA)
A. 264/89 (F)
C. COLOMBO 13978/F
Jun 21, 1995, June 28, 1995, October 2, 1995, December 14, 1995July 07, 1995September 22, 1995.
Partition – Investigation of Title – Duty of Trial Judge – Trust property -seizure.
One S was the owner of the property and he left behind a Lastwill whichwas admitted to Probate. D and P (1, 2 Defendant- Respondents) wereappointed Trustees of the Estate of the said S. According to the Law ofThesavalamai 1/2 share vested in S’s wife and on her death 1/8 shareeach devolved on her daughters 4-7th Defendants-Respondents.
The 8th Defendant-Appellant claimed title from the Fiscal Conveyance ofthe Right Title and interest of the Trustee P (2nd Defendant-Respondent)to one J who sold his rights to her father T who gifted same to her in 1977.
The 8th Defendant-Appellant was not given any shares, and hence theAppeal.
It was contended on her behalf that Court has not investigated Title, andthat the bona fide purchaser for value got title on a Fiscal Conveyancedespite an existing trust.
Although there is a duty cast on court to investigate title in a Partitionaction, the court can do so only within the limits of pleadings, admissions,points of contest, evidence both documentary and oral.
Per Anandacoomaraswamy, J.
“Court cannot go on a voyage of discovery tracing the title and findingthe shares in the corpus for them; otherwise parties will tender their
pleadings and expect the court to do their work and their Attorneys-at-Law’s work for them to get title to those shares in the corpus.”
Trust property cannot be seized and sold in execution proceedings.Hence the 8th Defendant-Appellant gets no shares.
What was transmitted to J is the alleged Right Title and Interest of P inthe corpus. There was no evidence led at the trial that P had vested inhimself with any such right to the corpus.
What was purported to be transmitted was neither defined dominium norrecognised share but a mere vacuum, no tangible Title was passed onto J.
AN APPEAL from the Judgment of the District Court of Colombo.
Cases referred to:
Gooneratne v. Bishop of Colombo 32 NLR 337
Peries v. Perera – 1 NLR 362
Neela Kutty v. Alvar 20 NLR 372
Cooray v. Wijesuriya, 62 NLR 158
Juliana Hamine v. Don Thomas 59 NLR 546 at 549
Sheefa v. Colombo Municipal Council, 36 NLR 38
Mohamad Faux v. Salha Omma – 58 Ceylon Law Weekly 46
Davoodbhoy v. Farook, 63 NLR 97, 58 CLW 57
Charles Hamy v. Jane Nona 15 NLR 481
N. S. A. Goonetilake PC., with M. B. Peramunafor 8th Defendant-Appellant.Ikram Mohamed for Plaintiff Respondent and 9th Defendant-Respondent.S. Sivarasa, P.C., with S. Mahenthiran for 3rd Respondent.
Cur. adv. vult.
February 14, 1996.
ANANDACOOMARASWAMY, J. (P/CA)
This is an appeal from the judgement of the Learned District Judgeof Colombo in a partition action, where the Learned Disirict Judge heldthat the 8th Defendant – Appellant was not entitled to any share in thecorpus to be partitioned.
One V. Sunderam was the owner of the property and he left behinda Last Will No. 1070 dated 12.12.1937 which was admitted to probate
in District Court of Colombo No. 9061/T. S. Dharmaratnam and S.Pathmanathan were appointed Trustees of the Estate of the saidSunderam with specific directions. According to the Law ofThesawalamai half share vested in Sunderam’s wife Nithiya Lakshmiand on her death 1/8 share each devolved on her daughters the 4th tothe 7th Defendants – Respondents. The Trustees are the 1 st and 2ndDefendants-Respondents who transferred 1/8 share to each of themnamely Jaganathan the 3rd Defendant – Respondent andAthputhanathan the Plaintiff – Respondent. The 8th Defendant – Appellantwas made a party on the basis of deeds in her favour but was not givenany shares. The 9th Defendant – Respondent was added as a son ofthe person who purchased from the original owner.
It is the case for the 8th Defendant – Appellant that her title wasfrom Fiscal conveyance Marked “8D1” and ultimately devolved on heron 8D4 and on 8D5.
The Learned Counsel for the Appellant cited several authoritiesGoonaratne v. Bishop of Colombo,™ Peries v Perera,™ Neela Kutty vAlvar,™ Cooray v. Wijesuriya,(4) Juliana Hamine v Don Thomasf5) &Sheefa v Colombo Municipal Council,™ and stated that it is the duty ofthe Court to examine and investigate title in a partition action, becausethe judgement is a judgement in rem.
We are not unmindful of these authorities and the proposition thatit is the duty of the Court to investigate title in a partition action, butthe Court can do so only within the limits of pleadings, admissions,points of contest, evidence both documentary and oral. Court cannotgo on a voyage of discovery tracing the title and finding the shares inthe corpus for them, otherwise parties will tender their pleadings andexpect the Court to do their work and their Attorney-at-Law’s work forthem to get title to those shares in the corpus.
The Learned Counsel for the Appellant submitted that neither theLast Will nor the probate was produced and therefore no title passesbased on those two documents Mohamed Fauz v Salha Umma, (7)Davoodbhoy v Farook ™ and Charles Hamy v Jane Nona.™
In the instant case there was an admission about the Last Will andProbate and there was no point of contest as regards these twodocuments.
The 8th Defendant-Appellant claims title from the Fiscal conveyanceof the right title and interest of the Trustee Pathmanathan the 2ndDefendant – Respondent to Jabanesan who sold his rights to her fatherE. Thilagaratnam on 8D4 in April 1977 and her father gifted it to her on8D5 in June 1977. What was transmitted to Jabanesan on 8D1 is thealleged “right title and interest” of Pathmanathan in the corpus. Therewas no evidence led at the trial that Pathmanathan had vested in himselfwith any such right to the corpus. As this was the undisputed position,what was purported to be transmitted on 8D1 was neither defineddominium nor recognised share, but a mere vacuum. No tangible titlewas passed unto Jabanesan.
It is the contention of the Counsel for the Appellant that the bonafide purchaser for value gets title on a Fiscal conveyance despite anexisting trust. Trust property cannot be seized and sold in executionproceedings. Hence the 8th Defendant-Appellant gets no share on thiscount.
The learned Counsel for the Appellant also relied on the fact thatthe Plaintiff-Respondent is not entitled to any share because the deedconveying a share to him was not produced at the trial although it wasproduced in the trial earlier. However in view of the admissions andbecause the deed in question forms part of the record we have takeninto consideration the said deed.
Further we wish to add that the chain of title recite the earlier titleand this confirms the admissions recorded at the commencement ofthe trial.
On a perusal of the oral and documentary evidence together withthe admissions we have no hesitation in coming to the conclusion thatthe learned District Judge came to the correct conclusion as regardsthe shares allotted to each party.
For these reasons we affirm the judgment of the learned District Judgeand dismiss the appeal with costs fixed at Rs. 5,250/-.
EDUSSURIYA, J. -1 agree.
THILAGARATNAM v. ATHPUNATHAN AND OTHERS