091-NLR-NLR-V-69-VIVEKASIRENMANY-and-another-Appellants-and-V.-RAMASAMY-and-7-others-Responde.pdf
H. N. G. FERNANDO, S.P.J.— Yivckaairtnmany v. liamasamy433
1966Present: H. N, G. Fernando, S.P.J., and Alles, J.VIVEKASIRENMANY and another, Appellants, and V. RAMASAMYand 7 others, Respondents
S. C. 407163—D. C. Point Pedro, 6S36
Res judicata—Decree of Supreme Court in appeal—Incapacity of the trial Court toamend it even with consent of parties—Minor unrepresented by guardian—Effect of decree entered against him—Civil Procedure Code, ss. 180, 480.
A District Court does not have jurisdiction under section 189 of the CivilProcedure Code to amend a decree which has been confirmed by a decree of theSupreme Court in appeal. If a minor was a party to the action, it is not opento him, even with the consent of the parties, to move the District Court undersection 480 of the Civil Procedure Code to set aside the decree of the SupremeCourt on the ground that he was not represented by a guardian.
A partition decree is not a nullity ab initio if one of the defendants in theaction was a minor who was not duly represented by a guardian ad litem ;it is only voidable at the instance of the minor. Accordingly, another party tothe action is not entitled to invoke the aid of section 4S0 of the Civil ProcedureCode in order to challenge the validity of that decree in a subsequent action,more especially when the final decree has in fact allotted a portion of thecorpus to the unrepresented minor. The decree binds all the parties who wereproperly beforo tho Court and will operate as res judicata in a subsequentpartition action between the same parties or their successors in title in respectof the same land.
Appeal from a judgment of the District Court, Point Pedro.
C. Ranganathan, Q.C., with K. Thevarajah, for the Plaintiffs-Appellants.
S. Sharvananda, for the Defendants-Respondcnts.
Cur. adv. vult.
July 21, 1966. H. N. G. Fernando, S.P.J.—
In this action for partition, the defendants pleaded as res judicata adecree of partition in respect of the same land entered in 1947 in actionNo. 2550 of tho same Court, and affirmed in a decree of the Supreme Courtin 1948. The 3rd defendant in that action was undoubtedly a minorboth during the pendency of the action and at the time when the finaldecree was entered. Having attained majority, the 3rd defendant in1957 moved the District Court to set aside that decree on two grounds :(a) her minority and (6) the want of due registration of the lis pendensof the action. The two plaintiffs in that action thereupon conceded thesecond ground and moved to withdraw the action. The District Judgethen dismissed the action No. 2550.
LXIX—19
!•S 5855—1,023 (7/87)
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H. N. G. FERNANDO, S.P.J.— Vivekasirenmany v. Ramasamy
Even if that order of dismissal is referable to the fact of the minorityof the 3rd defendant, it was made without jurisdiction—in Sin no Appu v.Andris1, which has been subsequently followed, it was held that a DistrictCourt does not have jurisdiction under section 189 of the Civil ProcedureCode to amend a decree which has been confirmed by a decree of theSupreme Court in appeal. The ratio decidendi of that case is in myopinion applicable in relation to section 480 of the Code—and I am notdisposed in this case to review the correctness of that decision. I musthold therefore that the District Judge who tried the present actionrightly held that the decree in action No. 2550 is still effective, despitethe purported dismissal of that action.
The plaintiffs in the present case were parties to action No. 2550,and the defendants are persons who were either such parties or theirsuccessors in title. Nevertheless, Mr. Ranganathan has argued, theplea of res judicata must fail.
His principal contention is that the decree in action No. 2550 was anullity, because the 3rd defendant to that action was a minor during itspendency. He concedes that there has apparently been no decision ofthis Court holding that a partition decree is null ab initio if a minordefendant is not duly represented by a guardian ad litem. But he relieson certain observations in two fairly recent judgments.
In the judgment of a Divisional Bench rendered by L. M. D. do Silva, J.(Kanagasabai v. Velupillai)2, the question arose whether a decree ofpartition is null or else only voidable, if there had not been due registra-tion of the lis pendens. The objection to the decree was taken in thatcase by a person who had not been a party to the action. What thejudgment did decide was that the conclusive effect under section 9 of theformer Partition Ordinance does not attach to a decree in so far as itconcerns a person who wras not a party. In effect therefore, thejudgment did not directly decide that the decree was a nullity for want ofdue registration of the lis, nor even that the decree was voidable at theinstance of a person who had been a party to the action. It was basedon the different ground that section 9 did not have the full conclusiveeffect in rem declared in the very early cases under the Ordinance. Itemphasised also that the Courts in England had not attempted to laydown a decisive test for determining -whether a judgment or order is anullity, or else only voidable, on the ground of irregularity. Hi onlyapproved the opinion expressed by Lord Goddard in Marsh v. Marsh3,that one test of nullity Avhich may be applied is whether an irregularityhas caused a failure of natural justice.
The other decision on which Mr. Ranganathan has relied is one of asingle Judge (Setun Bibee v. Marikar4). This was a case where, in apartition action, summons had been served on minor defendants without aguardian ad litem having been appointed. The minors subsequently
1 (1910) 13 N. L. R. 297.* (1952) 64 N. L. R. 241.
' 1945 A. C. 271.
* (1953) 55 N. L. R. 236.
H. N. G. FERNANDO, S.P.J.— Y ivekcisirenmany v. Ramasnmy435
made an application under section 480 of the Code to set aside thepartition decree, and this Court held that the decree should be set aside.No pronouncement was made that the decree was a nullity, although itwas observed that service of summons on a minor was no service at all,and that therefore no valid decree could have been entered. It is notclear to me that this observation amounted to a decision that the decreewas a complete nullity, but even if the observation can be construed inthat sense, it was made without reference to the then recent judgment ofthe Divisional Bench, which had hesitated to lay down any decisivetest of the distinction between null decrees and those which are merelyvoidable.
In the instant case, it is not the former minor defendant that claimsthe former decree in the action No. 2550 to have been a nullity. Thatclaim is now put forward by the two plaintiffs in the present action, bothof whom were parties to action No. 2550 and wore content to obtain adecree of Court despite the fact that one party to that action was anunrepresented minor. Moreover, the final decree of partition in actionNo. 2550 did in fact allot a portion of the corpus to the unrepresentedminor, whose interests have now passed to the present plaintiffs. Inthese circumstances, there is no fear of any failure of' natural justice;
I must therefore hold, in accordance with the trend of former decisions,that the decree in action No. 2550 was not a nullity, but only voidableat the instance of the unrepresented 3rd defendant in that action, andthat it is binding on the parties to the present action.
But there is yet Mr. Ranganathan’s further contention that theprinciple of res judicata does not, in the circumstances of this case, applyas against the plaintiffs notwithstanding that they were parties bound bythe decree in action No. 2550. This contention is based on the fact thatthe plaintiffs are entitled, not only to the interests which they claimed inaction No. 2550, but also to additional interests which they have derivedas heirs of the former minor 3rd defendant, now deceased. Because,it is claimed, the plaintiffs are the successors in title to the interests ofthe former minor defendant, the decree in action No. 2550 which boundthem as parties thereto, nevertheless does not bind them because theynow have a new and additional capacity ns heirs of the former minordefendant.
Let me first examine the practical consequences of this contention.One of the present plaintiffs, who was also a plaintiff in action No. 2550,was directly responsible for the situation that the 3rd defendant in thataction was not duly represented therein; the other was indirectlyresponsible because he acquiesced in that situation. Both these parties,who were virtual plaintiffs in action No. 2550 (that being an action forpartition), invited the Court in that action to determine their respectiverights and also the rights of the minor defendant. The Court accordingly
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H. N. O. FERNANDO, S.P.J.—Vivekasirenmany v. Ramasamy
didadjudicate upon the rights of the three parties, and the adjudicationwhich became embodied in the decree for partition was that the presenttwo plaintiffs were entitled to certain defined allotments of land, and alsothat the 3rd (minor) defendant in action No. 2550 was also entitled to adefined allotment. As between all the parties to that action except the3rd defendant, the adjudication was binding, and it is not now open tothe present plaintiffs to claim that the former 3rd defendant is entitledto any interest different to that allotted in the decree for partition. Theadjudication determined also the interests of the present contestingdefendants or their predecessor in title. If the present plaintiffs cannow claim that the interest of the former 3rd defendant is different tothat allotted in the decree, the result can be that the present contestingdefendants have an interest different from that declared in theadjudication. That result would mean that the adjudication of theinterest of the contesting defendants is not now binding on any one.
Mr. Ranganathan invited us to consider a situation which is notuncommon. Suppose that A sues B for a declaration of title to land, andhis action is dismissed. A thereafter acquires an interest in the land fromC. The earlier decree does not then preclude A from proving in asubsequent action that C in fact had title all along, and that C’s interestpassed to A upon his acquisition of that interest. The essential differencebetween that situation and the present one is that there the Court doesnot, in the first action, adjudicate upon C’s title ; whereas in the presentsituation, the earlier partition decree did declare the minor defendant’sinterest, and that declaration bound all the parties who were properlybefore the Court.
In de Zoxjsa v. Gunasekem 1, X, who was the administrator of the estateof Y, was in that capacity the 5th defendant in a partition action. Afterentry of the preliminary decree, X applied to be added as a party in hispersonal capacity, claiming 4 acres of the land on a deed executed by theoriginal owner. Because his application for intervention was in hispersonal capacity, it was held that X could be entitled to intervene beforethe final decree. The Court did not consider the question whether,if the final decree had been entered without X’s intervention, thatdecree would or would not have been binding on X, either as beingres judicata, or in terms of section 9 of the Partition Ordinance. Instead,the very brief judgment indicates that the Court exercised a discretionin his favour on the ground that his intervention was not dubious orbelated and that he had given some explanation for his delay in makinga claim.
I hold for these reasons that the decree in action No. 2550 is in termsof section 9 good and conclusive against all the parties to the presentaction, who were all persons properly before the Court in action No. 2550.The decree dismissing the present action is affirmed with costs.
Alles, J.—-I agree.
1 (1946) 41 N. L. R. 439.
Appeal dismissed.