i Contents.

ROMAN DUTCH LAW OF PARTITION iii

ABOLITION OF THE ROMAN-DUTCH LAW OF PARTION AND INTRODUCTION OF

STATUTORY PROVISIONS. iii

THE NATURE, GOALS BENEFITS AND SCOPE OF A PARTITION ACTION. iv

LEGAL REPRESENTATION- SANCTITY ATTACHED v

NEED TO EXPEDITE THE DISPOSAL OF ARTITION CASES. vi

POSSESSION AS A REQUIREMENT TO INTITUTE A PARTITION ACTION. vii

IMPRACTICABILITY OF MAINTAINING COMMON POSSESSION OF THE CORPUS ix

PROPER COURT WHERE A SUIT FOR PARTITION OF CO-OWNED LANDED

PROPERTY HAS TO BE FILED. x

PARTITION SUIT and CAUSE OF ACTION. x

SUBJECT MATTER OR THE CORPUS IN A PARTITION SUIT xii

Can a land outside the corpus be declared in a partition action as a right of way to the

corpus? xiv

Trust property xix

PLAINT IN PARTITION ACTION- REQUISITES xx

Stamp duty xxi

SURVEYORS and COMMISSIONERS OF COURT. xxi

DUTIES OF THE REGISTERED ATTORNEY AT LAW IN PARTITION CASES TO

ELIMINATE INORDINATE DELAY IN THE DISPOSAL OF PARTITION SUITS. xxii

Necessary parties xxiii

ADDITION OF PARTIES xxv

CAN A PARTITION SUIT BE INSTITUTED IN RESPECT OF A PORTION OF A LARGER

LAND. xxix

Executors and administrators xxx

Legal representatives xxx

Registration of lis pendens xxxiii

Rejection of the plaint xxxvi

Dismissal of the plaint xxxvii

Return of Lis pendens after registration xxxvii

DECLARATION BY THE PLAINTIFF TO BE MADE UNDER SECTION 12 xxxviii

ii

Issue and service of summons and publication xl

Preliminary survey xliii

List of Surveyors – Section 73 (1) xlviii

Disclosed parties xlviii

Procedure after service of summons xlix

ADDITION OF PARTIES lii

LIST OF DOCUMENTS AND WITNESSES lvii

TRIAL lx

INJUNCTIONS lxii

SETTLEMENT lxv

PRESCRIPTION AMONG CO-OWNERS lxviii

Burden of proof lxx

SALE, LEASE OR MORTGAGE PENDENTE-LITE IS VOID lxxii

LEASE OR MORTGAGE OF UNDIVIDED SHARES lxxix

COMPENSATION AND OWELTY lxxx

PARTITION OF A LAND BELONGING TO A PARTNERSHIP lxxxi

FINAL DECREE OF A PARTITION ACTION lxxxi

FINALITY OF INTERLOCUTORY AND FINAL DECREES OF PARTITION ACTIONS lxxxiii

NON-PROSECUTION OF A PARTITION ACTION xcii

ID OBTAINED BY MEANS FRAUD xcv

A PARTITION DECREE CANNOT BIND THE STATE xcv

APPLICATION UNDER SECTION 48(4) OF THE PARTITION LAW xcvi

Representatives c

Actions for damages c

Appeals cii

Application for revision and or restitutio in integrum cii

PROOF DEEDS IN PARTITION ACTIONS cv

PROOF OF ORIGINAL OWNERSHIP AND INVESTIGATION OF TITLE cv

EXCEPTIONS AND EXEMPTIONS cvii

iii

ROMAN DUTCH LAW OF PARTITION

The three types of actions available to divide properties held in common were

(1) Actio communi dividundo (2) Actio familiae erciscundae and (3) Actio finium

regundorum. They were applied to divide properties held in common, to divide

common inherited properties and to define common boundaries respectively.

According to “Justinian”, if the land can easily be divided among co-owners,

their respective shares should be allocated so. If one of them receives too larger

share, the Judge ought to order him to pay a sum of money as compensation to

the other (Book TV, Tit. XVII).

On the other hand, If the property is one that cannot be advantageously divided

among the co-owners, the whole must be adjudged to one and the Judge must

fix an amount of compensation to be paid to the others. The Roman law in

addition conferred due recognition to amicable partition of landed property.

Amicable partition of lands generally take place, when the co-owners enter into

agreements to terminate the common ownership by allotting divided shares in

lieu of their undivided rights held in common. In a partition suit the property is

transferred by the verdict of the Judge which is a recognized form of ownership

termed judicial adjudicatio. The judicial adjudication transfers the co-

ownership of one litigant to the other. As “Justinian” says there is no need for

deed of transfer (Book IV Tit. XIII. Section 7).

ROMAN DUTCH LAW OF PARTITION

The principles of partition in the Roman-Dutch law had been explained by Voet

as follows…

“The action for the division of common property is a mixed, two sided and a

bona fide action. It is available to those who hold common property in

undivided shares. “Commentary on the Pandects” (BookX Tit. Ill)

ABOLITION OF THE ROMAN-DUTCH LAW OF PARTION AND

INTRODUCTION OF STATUTORY PROVISIONS.

The first ever Statute enacted for division of jointly owned landed properties

was Ordinance No. 21 of 1844. Even after the introduction of this Statute, yet

in Duff Vs. Crosbie (2 Lorenz 19) the Supreme Court held that a partition

action can be instituted by a co-owner even under the common law.

iv

Six years after that the Common Law of Partition went into disuse when

Ordinance No. 10 of 1863 was passed providing for the partition and/or sale of

land held in common. Ordinance No. 10 of 1863 was amended by Ordinance

No. 10 of 1897 and No. 37 of 1916.

Subsequently, Act No. 16 of 1951 was introduced by repealing the earlier

Ordinance. Act No. 16 of 1951 was applied to partition cases for nearly 22

years.

Thereafter Administration of Justice Law No. 44 of 1973 replaced Act No. 16 of

1951 and introduced a separate chapter, from Sections 632 – 663 as being

applicable for the partition of lands .

Partition Law as embodied in The Administration of Justice Law had the

shortest period of life span in the Statue book, as it was finally repealed by

Partition Law 21 of 1977 which certified on 26 November 1977. The Partition

Law No. 21 of 1977 was thereafter amended from time to time by Act No‟s 5 of

1981, 6 of 1987, 32 of 1987 and 17 of 1997. By the said amendments no

substantial change were made to the Law of Partition save and except certain

procedural modifications. Partition Law No. 21 of 1977 has survived in the

Statute book for well over three and a half decades.

The preamble to the Partition Law which is now in force reads that it is a law to

provide for the partition and sale of land held in common and for matters

connected therewith or incidental thereto.

Accordingly, partition action in Sri Lanka is now governed by Partition Law No

21 of 1977 as amended by Act No‟s 5 of 1981, 6 of 1987, 32 of 1987 and 17 of

1997.

THE NATURE, GOALS BENEFITS AND SCOPE OF A PARTITION ACTION.

An examination of the Partition Law presently in force and the previous

statutes on the same subject, amply reveal that they had been drafted almost

in line with the Partition Acts prevailed at that time in England. However it has

to be borne in mind that the principles of law of partition contained in our

Statutes dealing with the termination of co-ownership of landed properties are

in actual fact derived from the Roman-Dutch Law, the foundation of which is

The Roman Law.

v

A partition action is designed and intended towards the cessation of co-

ownership of immovable property. The scope of the trial in such an action is the

examination of the title to any right, share and interest in the land and

improvements claimed by the parties. Such an examination could extend to the

investigation of encumbrances that pertain to such right, share or interest, as

the final decree wipes out the encumbrances as are not specified therein. The

requirement of persons who have any interest on the basis of encumbrances

that pertain to title should be disclosed as necessary parties in terms of section

5 is based on the finality of the final decree which wipes out such

encumbrances.

LEGAL REPRESENTATION- SANCTITY ATTACHED RANJITH PERERA AND ANOTHER Vs DHARMADASA AND OTHERS -

COURT OF APPEAL- SALAM, J.- CA 1754/2004- DC HORANA 5387/P

JANUARY 8,2008 Partition Law 21 of 1977 - Section 48 (4), Joint statement

of claim - Trial date - Registered Attorney absent - One claimant taking part

in the proceedings - Sections 24, 27(2) Civil Procedure Code -Applicability -

Procedural Law - Its importance - Investigation of title? - Permission to

conduct his own case - Not recorded? - Fatal?

The 3rd and 4th defendants-petitioners who had jointly nominated a

registered Attorney-at-law and filed a joint 'statement of claim sought to

revise the judgment and the interlocutory decree, on the basis that, they

were unrepresented at the trial, and that the trial Judge should not have

put the 4th defendant-petitioner into the witness box without legal

assistance and permitted him to cross examine when he had a registered

attorney on record. The petitioners also allege that, there was no

investigation of title, and that, there was no settlement.

Held:

(1) As long as a party to a case has an Attorney-at-law on record, it is the

Attorney-at-law on record alone, who must take steps and also whom the

Court permits to take steps. When the 4th defendant-petitioner attended

Court without being represented by his Attorney-at-law or a Counsel

(Section 27(3)) the trial Judge should have considered him as a party having

failed to appear at the trial as the Court has chosen to do so in the case of

vi

the 3rd defendant-petitioner. Further there is no indication pointing to the

4th defendant-petitioner having sought permission of Court to cross-

examine the plaintiff or to present his case in person either.

NEED TO EXPEDITE THE DISPOSAL OF ARTITION CASES.

Bonser CJ with his usual foresight stated more than a century and two and

half decades ago that from a socio-legal perspective, the undivided possession

of landed property is productive of very injurious consequences to inhabitants

of the colony .

In our country, the rule of succession on the death of a citizen is not

primogeniture. The Law of intestate succession is applied to the properties on

the death of a citizen, according to the personal Law applicable to the deceased.

Generally, persons who inherit the estate of a deceased are the surviving

spouse, children, parents, collaterals and certain other relatives, depending on

the type of legal heirs left behind by the deceased. The Law of succession

known to our system of Law includes the Common Law of Succession and

Muslim Law of intestate Succession. Both under the Common Law and Muslim

personal Law, quite frequently persons become entitled to properties in

infinitesimal fractions. Hence, the law of partition of landed property

necessarily occupies an important position in the law of the land.

As was pointed by Bonser CJ in PERERA et al. v. GUNETILLEKE et al. 4 NLR

181 “ In a country like this any attempt of parties to use force in the

maintenance of their rights should be promptly discouraged as slight brawls

readily blossom into riots with grievous hurt and murder as the fruits. It is

therefore all the more necessary that Courts should be strict in

discountenancing all attempts to use force in the assertion of such civil rights

as are in dispute in the present case”.

In any country, amity among the people, absence of friction and tension among

them are very important, being a precondition to internal peace, which is

essential for progress and development of the country. Speedy disposal of

partition cases with the assistance of Lawyers who have gained remarkable

competence in the particular field of Law is necessary, to maintain harmony

among them.

Whenever disputes arise on the question relating to the continuation of co-

ownership, particularly among members of one family, as it invariably happens

vii

in relation to co-owned properties, it becomes highly injurious to the people

and disastrous to the economy of the country. It is therefore, very important

that we acquaint ourselves with the Law of Partition and its proper application

with a view to ensure the expeditious disposal of partition cases.

POSSESSION AS A REQUIREMENT TO INTITUTE A PARTITION ACTION.

Unlike in the past the impracticableness of common possession of co-

ownership plays no significant role towards the institution of partition suits.

A person who has ownership and possession or a right to possession is now

considered as being entitled to file and maintain a partition action.

Act No. 10 of 1863 Act No. 16 of 1951, Administration of Justice (Amendment)

Law, No. 25 of 1975 and 21 of 1977 refer to ownership in common and not to

possession. In the early years the erroneous view that prevailed was that a

partition action can only be maintained by the plaintiff who is in possession

and whose title is not disputed.

However in the case of SINCHI APPU VS. WIJEGUNASEKERA1 a bench of

three Judges reviewed this position and held that 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 maintain an action to have that land

partitioned, although neither he nor his predecessor has had possession and

although the defendants wholly deny his title.

In the Privy Council case of The Attorney-General vs. Herath Similar

observations were made by L. M. D. de Silva J, as to the attributes of

ownership.

“DOMINION” or Ownership is protected by law in which a man stands to a

thing which he may : (a) possess, (b) use and enjoy, (c) alienate. The right to

possess implies the right to vindicate, that is, to recover possession from a

person who possesses without title to possess derived from the owner2. Grotius

selects this right as the most significant quality of ownership, which he says is

1 6 NLR 1

2 Professor R. W. Lee in his treatise " AN INTRODUCTION TO ROMAN-DUTCH LAW " (5

th Edition

1953) at page 121

viii

the relation to a thing by virtue of which a person not having the possession

may obtain the possession by legal process3.

A person claiming to be the owner of an undivided share of land, therefore is

entitled to possession of it in Law and hence competent to maintain an action

to have that land partitioned, although neither he nor his predecessor in title

may have had possession. In such a situation, the plaintiff‟s action for partition

is maintainable even if the defendant wholly denies the title of the former.

ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO AND OTHERS 2006SLR

2 page188 (Supreme Court) Plaintiff's action to partition the corpus was

dismissed as the parties who were said to be entitled to rights in the corpus in

fact had separately possessed with clear and permanent boundaries the Lots

depicted in the preliminary plan for a long period of time. The Court of Appeal

reversed the judgment on the grounds that the District Court has failed to

investigate title. (b) that the parties had failed to prove ouster to claim

prescription.

IT WAS HELD THAT (1) It is imperative that the investigation of title must be

proceeded by a careful examination of the preliminary issue, whether the land

sought to be partitioned is commonly owned as required under5ection2 (1). The

District Judge having carefully examined the question had correctly held that

the land was dividedly possessed as from 1938 and proceeded to dismiss the

action without resorting to a full and exhaustive investigation as to the rights of

the parties which in the circumstances was lawful and justified. The Court

further held that (2) Adverse possession as between co-owners may arise by

absolute exclusion of one of the co-owners or by conversion of undivided shares

into divided shares in an informal manner.

It was also held that Ouster does not necessarily involve the actual application

of force. The presumption of ouster is drawn in certain circumstances where

exclusive possession has been so long continued that it is not reasonable to call

upon the party who relies on it to adduce evidence that at a specific point of

time in the distant part there was in fact a denial of the rights of the other co-

owners. His Lordship Weerasuriya, J. further observed that the decision in

Tilakaratne vs. Bastian4 recognizes an exception to the general rule and

permits adversity of possession to be presumed in the presence of special

3 Grotius " Jurisprudence of Holland " - Commentary by R. W. Lee, 1936 Edn. Vol. II at page 68.

4 21 NLR 12

ix

circumstances additional to the fact of undisturbed and uninterrupted

possession for the requisite period. The presumption that possession is never

considered adverse if it can be referable to a lawful title may sometimes be

displaced by the counter presumption of ouster in appropriate circumstances.

IMPRACTICABILITY OF MAINTAINING COMMON POSSESSION OF THE CORPUS

The correct position of Law is that where a plaintiff asks for the partition of a

land of which he is a co-owner, Court cannot refuse it on the ground that the

plaintiff has failed to prove that the common possession is inconvenient and

impracticable. There are several instances where dismissal of partition suits on

the ground of plaintiff‟s failure to prove that possession in common was

inconvenient or impracticable, had been set aside in appeal.

In R. G. P. A. GOONERATNE Vs A. V. P. A. GOONERATNE and another Volume

77 NLR page 271, the question as to maintainability of a partition action was

considered by the Supreme Court. The facts briefly are that "A" filed a partition

suit against B and C, who were the brother and father respectively of A.

During the pendency of the action, C instituted action No. 1035 against his

sons A and B claiming that a donation of land in respect of the same corpus

executed by him in favour of A and B in January 1952 was null and void. The

action brought by C was settled on the date of trial and consent decree was

entered according to which the deed of gift remained unannulled but C was

declared entitled to the life interest over the corpus.

Having considered the contest the Supreme Court held inter alia that the

settlement "of consent" in action No. 1035 was not tantamount to a " voluntary

alienation " within the meaning of section 67 of the Partition Act. Furthermore,

by reason of the life interest given to C by the consent decree, the plaintiff A in

the present action had only the bare dominium of the property without any

right to the usufruct and, therefore, was not entitled to institute an action for

partition. This judgment presently is of no avail in Law by reason of the

amendment made to the Partition Law by Act No 21 of 1997.

Thus, the law as it stands today does not qualify possession as a condition

precedent to file a partition action. Section 2 of the Law No 17 of 1977 enacts

as follows….

x

“2. WHERE ANY LAND BELONGS IN COMMON TO TWO OR MORE

OWNERS, ANY ONE OR MORE OF THEM, WHETHER OR NOT HIS

OR THEIR OWNERSHIP IS SUBJECT TO ANY LIFE INTEREST IN

ANY OTHER PERSON, MAY INSTITUTE AN ACTION FOR THE

PARTITION OR SALE OF THE LAND IN ACCORDANCE WITH THE

PROVISIONS OF THIS LAW”.

A close scrutiny of section 2 of the Partition Law reveals that the recent Statute

has recognized the right of a plaintiff having title to an undivided share of a

land, the possession of which remains with another person by reason of the life

interest enjoyed by the latter. This clearly shows that the concept of possession

in a partition action has now totally faded away and the right to institute

partition action by co-owner is almost unqualified and not depended on

possession.

PROPER COURT WHERE A SUIT FOR PARTITION OF CO-OWNED LANDED

PROPERTY HAS TO BE FILED.

Section 3 identifies the Court in which an action for Partition should be filed.

Every partition action shall be instituted by presenting a written plaint to the

District Court, within the local limits of whose jurisdiction the land which is the

subject-matter of the action is situated in whole or in part.

Sub section (2) provides that in the event of an uncertainty as to the local

limits of the jurisdiction of which of two or more courts any land is situated,

any one of those courts may, if satisfied that there is ground for the alleged

uncertainty, record a statement to that effect and thereupon proceed to

entertain and dispose of any partition action relating to the land; and such

action so entertained and disposed of shall for all purposes be deemed to be

and to have been duly instituted in a court of competent jurisdiction.

Thus Section 9 of the Civil Procedure Code which enables a plaintiff to file an

action in the court within the local limits of whose jurisdiction (a) a party

defendant resides; or (c) the cause of action arises; or (d) the contract sought to

be enforced was made has no application to a partition action.

PARTITION SUIT and CAUSE OF ACTION.

In the strict sense of the Law a Partition action is not considered as an action

for the prevention or redress of a wrong but they are applications for relief from

joint ownership obtainable through the exercise of the Court‟s powers. Even

xi

though the phrase "cause of action" is defined by the Civil Procedure Code as

the wrong for the prevention or redress of which an action may be brought, and

includes the denial of a right, the refusal to fulfill an obligation, the neglect to

perform a duty and the infliction of an affirmative injury; The „cause of action, if

any, in a partition action is the inherent right of a co-owner to secure a divided

holding of the common property or to obtain his share in the proceeds of the

property.

No action can be brought to partition a corpus which in itself is an undivided

portion of a larger common land. The cause of action in a partition action is

recurring in nature and based on inconvenience of common ownership. A

partition action has always been recognized as having a special character in

that every party has the double capacity of plaintiff and defendant. Gaius in

Digest V. 1.13, observes that there are no defendants in a partition action. Voet

says that in a partition action all the parties have the double capacity of

plaintiff and defendant. (vide 34. N. L. R. 241.)

It is no doubt correct that the existence of a dispute between co-owners, or

between a co-owner and some person whose claim to some interest is denied, is

often the occasion for the institution of a partition action; and that a partition

decree often serves finally to resolve such disputes. Nevertheless, a partition

action is not based upon a " cause of action " as defined in the Civil Procedure

Code, but upon the right, independently recognized by s. 2 of the Partition Act,

of any co-owner to seek a partition or sale of co-owned land. Although it is

usual to follow now the former practice of averring in a partition plaint the fact

that common possession is not convenient, the Partition Act does not require

such a fact to be averred or proved. It is thus clear from s. 2 that the

jurisdiction of a Court under the Partition Act is not principally to resolve and

determine disputes, but to ascertain the rights or interests of persons in land

which is owned in common, and to divide the land into separate portions

among the former co-owners. If then a co-owner has a right to institute an

action for partition of a land, although no one disputes the rights or interests

claimed or admitted in the plaint, the fact that some dispute does exist as to

such rights or interests cannot derogate from or qualify the right to institute

the action5.

5 Vide R.Aranolis Vs R.Hendrick 75 NLR75 P532

xii

In the case of KARUNARATNE Vs RANASINGHE HAMINE (since deceased and

substituted by S. R. A. KARUNAWATHIE) AND OTHERS6 the question relating

to the right to bring a partition action by the plaintiff who burdened his entire

undivided rights to a usufructuary mortgage bond was considered. It was

decided that a plaintiff whose share is subject to a usufructuary mortgage bond

in favour of a defendant has full ownership though possession is lost until the

redemption of the bond. Such a person can be said to be in possession through

the mortgagee and is entitled to file a partition action.

SUBJECT MATTER OR THE CORPUS IN A PARTITION SUIT

A partition action can be instituted under the Partition Law for the partition or

sale of any land or lands belonging in common to two or more owners. Whilst

this adjudicates the rights of the parties in a partition case, the Court is obliged

to make determinations with regard to the issues relating to the ownership of

the buildings, cultivations, any other improvements in the corpus and life

interests, mortgage rights and servitudes existing over the corpus.

It is essential to disclose the subject matter of the partition case with definite

boundaries and certainty. The plaintiff is required to cause a survey of the

corpus and to have a preliminary plan prepared to identify the land with

certainty. A partition action may proceed on the basis of the preliminary plan

prepared according to the Partition Law, despite certain discrepancies in the

description of land and the extent thereof in the plaint and the preliminary

plan.

When a co-owner, who has erected a new building on the common land

remains in possession of that building, such possession does not necessarily

mature into the prescriptive title to the building and the soil on which it stands

as against the remaining co-owners .

The mere fact of execution by co-owners, of deeds dealing with specific or

divided portion of a common land does not per-se establish that there was an

arrangement arrived at by the co-owners to divide the land in such a manner

that title was to be affected.

If persons who are entitled by prescription to a land persist after they have

acquired that title, in conveying an undivided share of the whole land of which

what they possessed is a part; and if the persons so deriving title pass on the

6 1993 Sri Lanka Law Reports - Volume 1 , Page No - 299

xiii

same title to others, then the persons claiming under that title unless they can

show that they themselves have acquired a title by prescription, must be bound

by the terms of their deeds.7

A Partition Action was instituted to partition a land in extent of 1 Acre, 3 Roods

and 8 Perches. The said land admittedly was a part of a larger land in extent of

24 Acres. The plaintiffs‟ claim was that they and their predecessors in title

possessed the corpus separately as a divided block of land and acquired a

prescriptive title. Some of the deeds on which the plaintiffs claimed title

referred to undivided shares of the larger land of 24 Acres. The District Judge

overruled the objection and entered a partition judgment on the basis that the

plaintiff had established prescriptive title to the smaller land and pedigree

pleaded in the plaint.

Applying the principle laid down in Fernando Vs. Podi Singho (see foot note 1)

the appellate court held that the plaintiff and the defendants whose title is

based on each of the deeds referred to will get no larger fraction of the corpus

sought to be partitioned than that set out in the deeds in respect of the larger

corpus. Accordingly the District Court judgment was affirmed and appeal was

dismissed.

It is trite Law that where a land is possessed in different portions by different

co-owners for convenience of possession, a partition action cannot be

maintained in respect of one portion only; the entire land should be brought

into the action.

A decision which is particularly relevant to the question of identity of the

corpus and hitherto followed by our courts, is embodies in the judgment in

Brampy Appuhamy Vs. Menis Appuhamy . The facts of Brampy Appuhamy „s

case reveal that the corpus sought to be partitioned in that was around six

acres in extent. Somewhat remarkably, the land surveyed at the preliminary

survey was only two acres and three roods. Interlocutory decree also entered in

respect of a land of two acres and three roods without any question being

raised by any of the parties as to the wide discrepancy between the extent in

the plaint and that shown in the preliminary plan. None of the defendants had

averred under section 23(1) of the Act, that only a portion of the land described

in the plaint should be made the subject matter of the action. Basnayake CJ.

7 Fernando Vs. Podi Singho (1927 (6) Ceylon Law Recorder 73.

xiv

held, that the Court acted wrongly in proceeding to trial in respect of what

appeared to be a portion only of the land described in the plaint.

When the surveyor proceeded to execute his commission and was unable to

locate a land about six acres, he should have reported that fact to Court and

asked for further directions. In a partition action, it is imperative that the

provisions of the Partition Act should be strictly observed. The Court also

observed that there was absence of due diligence or care on the part of the

proctors in proceeding with an abortive trial.

On the other hand if the commissioner includes a portion into the corpus

which is not the part of the subject matter the court has every power to exclude

it. This principle was dealt in Thegis Appuhamy Vs Hendrik Singho 61 CLW

102.

A different approach to a similar problem has been made in Luinona Vs.

Gunasekera8 where it was emphasized that the Partition Act makes no

provisions for excluding from a partition action. After lis-pendens is duly

registered, any part of the land to which the action relates and if allotments of

land of which some of the parties to the action are sole owners are included by

the plaintiff in his action, the only way of dealing with them under the scheme

of the Act is by declaring in both the interlocutory and final decrees such

parties entitled to those separate allotments.

In a partition action there is a duty cast on the Judge to satisfy himself as to

the identity of the land sought to be partitioned and for this purpose, it is

always open to him to call for further evidence in a regular manner in order to

make a proper investigation .

Any plan which the parties may seek to put in evidence must be marked if

necessary for their case, and duly proved, if objected to.

Can a land outside the corpus be declared in a partition action as a right

of way to the corpus?

Partition Law does not authorize a court to partition or make an order relating to right, title or interest in a land that fell outside the corpus. Udulagama v Kempitiya [2002] 3 Sri LR 1 (CA) [154]

8 60 NLR 246

xv

In Kanthia Vs. Sinnatambi (1913(2) Bal. Notes of Cases 19) Weerasooriya J.

decided that no such declaration can be obtained in a partition case that a land

outside the corpus to be partitioned is subject to a servitude.The above decision

was followed in the case of Thambiah Vs. Sinnathamby9

The Supreme Court in Banda Vs. Weresekera10 where stressed that the Courts

are empowered to entertain partition actions only in respect of lands which are

co-owned. Our Courts have persistently, discouraged with strong disapproval of

any attempt to misuse the statutory right of filing a partition suit, for the

purpose of dealing in an action with distinct portions of land in which the

shareholders and the interests are not the same.

In the case of Hevavitharana Vs. Themis de Silva 63 NLR 68 the question

arose for decision was whether the District Court has inherent power, under

section 839 of the Civil Procedure Code to make an order excluding a separate

or divided lot of land which has been wrongly included by the plaintiff as being

part of the corpus. Section 26 (2) does not exhaust the powers of the Court,

since the words of the sub-section show that the interlocutory decree

contemplated by it " may include " one or more of the remedies set out there.

The use of the words ''may include" suggest that the orders specified in the

sub-section are not exhaustive. Thus although there is no provision in section

26 to dismiss an action, the Court's power to do so cannot be questioned.

Thambiah,J, with whom L B de Silva, J concurring the Supreme Court

reiterated that there is no provision in the Partition Act that the Court is

obliged to make any of the orders set out in section 26 (2), in respect of the

land that is described in the plaint. Nor is there any provision in the Act

providing for the declaration of title to a land solely owned by a person, which

has been wrongly included in the corpus sought to be partitioned. In such

cases the practice hitherto has been to exclude the land which is outside the

subject-matter of the partition action and which is proved to have been the

property of a person who is not a party to the proceedings. It is not uncommon

for a plaintiff to include small portions of land in the corpus belonging to other

persons. In all such cases if the Court has to adjudicate also on the title of the

owners of those lands, then the Court will be obliged to investigate the title of

lands which do not come within the purview and scope of section 2 of the

Partition Act. Further, if the Court has to examine the title of persons whose

9 61 NLR 421 and 55 CLW 55

10 23 N.L.R. 157

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lands have been wrongly included in the corpus, great inconvenience and

hardship may be caused to persons who may be quite content to possess such

lands in common or, if it happens to be the land of a single individual, to

possess it by himself. In our view it is not the intention of the legislature in

passing the Partition Act that the Court should partition any lands other than

those that came within the ambit of section 2 of the Act.

As section 26 does not exhaust all the orders which a Court could make, in our

view the Court has the inherent power, under section 839 of the Civil Procedure

Code, to make an order excluding a lot which has been wrongly included in the

corpus.

In coming to the above conclusion the court in Hevavitharana Vs. Themis de

Silva, differed from the ruling in Luinona's case (60 NLR 346) where it was

earlier held that the Partition Act makes no provision for excluding from a

partition action, after lis pendens is duly registered, any part of the land to

which the action relates. If allotments of land of which some of the parties to

the action are sole owners are included by the plaintiff in his action, the only

way of dealing; with them under the scheme of the Act is by declaring in both

the interlocutory and final decrees such parties entitled to those separate

allotments.

In coming to the above conclusion in the case of Hevavitharana Vs. Themis de

Silva 63 NLR 68 the Court followed the age old principle that Courts are not to

act upon the principle that every procedure is to be taken as prohibited unless

it is expressly provided for by the Code, but on the converse principle that every

procedure is to be understood as permissible till it is shown to be prohibited by

the law. As a matter of general principle prohibitions cannot be presumed. This

principle was succinctly laid down in the Indian case of case of Narsingh Das

Vs. Mangal Dubey (1883 (5) Allahabad 163 at page 172.

IT VERY IMPORTANT TO BEAR IN MIND THAT Every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted.

In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB)(1882), Mr. Justice Mahmood, the celebrated Judge of theAllahabad High Court, observed:-

“Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle

xvii

prohibition cannot be presumed. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen &

others, AIR 1966 Allahabad 84 FB

In the case of Sopaya Silva Vs. Magilin Silva (1989 (2) S.L.R. 105) the plaintiff

had filed the action to partition a land of 8 Acres, 3 Roods and 29 Perches and

lis-pendens were registered in the folios where the deeds for the land were

registered. When the commission was taken out, the Commissioner surveyed

an extent of 11 Acres, 1 Rood and 33 Perches. No contest was raised about the

registration of the lis-pendens. At the trial the contest was resolved and

evidence led accordingly. The District Judge dismissed the case holding that

the lis-pendens was wrongly registered.

In appeal S.N. Silva, Judge of the Court of Appeal (as he was then) held that it

was not open to the District Judge to dismiss the action, based on the ground

of wrong registration of the lis-pendens, a point on which there was no contest

and no argument was heard. The court expressed its view on the matter as

being a strong case of a violation of natural justice. Since the lis-pendens

having been correctly registered in the folios where the deeds of the land

described in the plaint were registered, on receipt of the surveyor‟s return

which disclosed that a substantially larger land was surveyed the court of

appeal emphasized that the district judge should have decided on one of the

following courses after hearing the parties.

(i) to re-issue the commission with instructions to survey the land as

described in the plaint. The surveyor could have been examined as provided in

section 18(2) of the Partition Law to consider the feasibility of this course of

action.

(ii) to permit the plaintiffs to continue the action to partition the larger land

as depicted in the preliminary survey. This course of action involves the

amendment of the plaint and the taking of consequential steps including the

registration of a fresh lis-pendens.

(iii) to permit any of the defendants to seek a partition of the larger land as

depicted in the preliminary survey. This course of action involves an

amendment of the statement of claim of that defendant and the taking of such

other steps as may be necessary in terms of section 19(2) of the Partition Law.

xviii

In the preparation of the preliminary plan and report, it is of much significance

to adhere to the provision in section 18 (1) (a) (iii) of the Partition Law, which

requires a surveyor to report whether or not the land surveyed by him is

substantially the same as the land sought to be partitioned as described in the

schedule to the plaint. Considering the finality and conclusiveness that

attached in terms of section 48(1) of the Partition Law to the decree in a

partition action, the Court should insist upon due compliance with this

requirement by the surveyor.

In Amarasinghe Vs, Wanigasuriya (1994 (2) S.L.R. 203) an application was

made to the Court of Appeal in revision and or restitutio in integrum against

the order made by the District Court confirming the scheme of partition as

contained in the final plan and the report of the surveyor.

The petitioners were not parties to the above partition action and they have no

interests in the corpus for partition. The only matter of dispute in the said

application, relates to the „road‟ as depicted along the north western boundary

of the corpus in the final plan. The petitioners claim that the said „road‟ is a

„private road‟ serving the petitioners who own the land to the west of the

corpus, to the exclusion of the co-owners of the corpus.

They submitted that their rights are affected by the scheme of partition as

contained in the final plan wherein the Surveyor has partitioned the corpus

using the said „private road‟ as the only means of access to the lots 2,3,4 and 5

of the corpus.

The order confirming the scheme of partition and the final decree that has been

entered, have the effect of creating a servitude of way in favour of the parties to

the partition action over the „private road‟ which is outside the corpus, without

the petitioners being heard on this matter. On this basis, they moved that the

final decree be set aside and suitable direction given by this Court to the

District Court to safeguard the interests of the petitioners in relation to the

„private road‟ to which they are exclusively entitled. Having heard the

arguments for and against the application for restitio in intergrum the court of

appeal held that in the process of partitioning, proper rights of way should be

provided from within the corpus as access to a public right of way. The road

claimed by the petitioners was not a viavicinalis. There was no proof of

immemorial use of the disputed roadway or prescription. There was a

fundamental error in confirming the scheme of partition without affording

the petitioners an opportunity to object to it. It was further held that a glaring

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blemish which taints the proceedings in a partition action and results in a

miscarriage of justice to a person not being a party to the action may

appropriately be remedied by an application in revision.”

Trust property

Section 83 in the Partition Law defines that a constructive or charitable trust

has the same meaning as in the Trust Ordinance No. 9 of 1917.

An issue touching upon the validity of a final decree subject to a constructive

trust was dealt in the case of Babunona Vs. Coranelis Appu11. the defendant,

who held a share of a land in trust for the plaintiffs was allotted the share by

decree in a partition suit.

The plaintiffs were not entitled to compel the defendants to execute a transfer of

the land, and that his only remedy was one for damages.

In Galgamuwa Vs. Weerasekera (21 N.L.R. 108) the plaintiff brought the action

to partition the corpus between himself and six other defendants.

The plaintiff claimed that he was an heir of one Banda and sought to partition a

land as against the other heirs of Banda. The respondents after interlocutory

decree, sought to intervene, alleging that Banda held certain shares of the land

in trust for them. De Sampayo J. held that the respondents were entitled to

establish the trust in this action.

In the case of Weeraman Vs. De Silva (22 N.L.R. 107) A land, a share of which

was bought by the defendant in trust for the plaintiff became the subject of a

partition action, was sold under the partition decree, and a sum of money was

in Court representing the share in question. The plaintiff was declared entitled

to it. The partition decree had no effect of wiping out the trust.

In Marikar Vs. Marikar (22 N.L.R. 137) Bertram C.J. held that a trust, express

or constructive, is not extinguished by a decree for partition, and attaches to

the divided portion which on the partition is assigned to the trustee.

11

14 NLR 45

xx

PLAINT IN PARTITION ACTION- REQUISITES

In terms of section 4(1) of the Partition Law all requisites of a plaint as defined

in Chapter VII of the Civil Procedure Code to be complied with. In addition

section 4(1) of the Partition Law requires furnishing the following particulars

(a) the name, if any, and the extent and value of the land to which the action

related.

(b) a description of that land by reference to physical metes and bounds or

by reference to a sketch, map or plan which shall be appended to the plaint.

(c) the names and addresses of all persons who are entitled or claimed to be

entitled to any right, share, or interest to, of, or in that land or to any

improvements made or effected on or to that land and the nature and extent of

any such right, share, interest or improvements, so far as such particulars are

known to the plaintiff' or can be ascertained by him; and

(d) a statement setting out, with reference to a pedigree which shall be

appended to the plaint, the devolution of the title of the plaintiff, and where

possible, the devolution of the title of every other person disclosed in the plaint

as a person entitled or claiming to be entitled to that land, or to any right,

share or interest to, of, or in, that land.

Although it is usual to follow now the former practice of averring in a partition

plaint the fact that common possession is not convenient, the Partition Act

does not require such a fact to be averred or proved.

In the case of Vethavanam Vs. Retnam (60 N.L.R 20) the Court dismissed the

plaint after acceptance on the ground that the plaint had not disclosed a

necessary party. But the Supreme Court held that the Court has no jurisdiction

to dismiss a plaint after acceptance if the plaint is not defective prima facie.

SOYSA V SILVA AND OTHERS 2000 SLR VOL 2 235 deals with the

requirements to bring in a larger land into the action. The Plaintiff instituted

action to partition Lot A in extent 34 Perches. The Defendant contended that it

consists of Lots A. B and C and is in extent of 3 Roods. The District Court held

that the corpus consists of lots A and B, and C, and further held that the 2nd

Defendant had prescribed to the said land. Being aggrieved the 3rd Defendant

lodged an appeal which was rejected. Thereafter the Petitioner moved by way of

Revision.

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It was held that (i) The power given to a Superior Court by way of Revision is

wide enough to give it the right to revise any order made by an original court.

Its object is the due administration of justice and the correction of errors

sometimes committed by the Court itself in order to avoid miscarriage of

justice. (ii) On reading S. 19(2)(a) it is imperative on the part of the Defendant

who seek to have a larger land than that sought to be partitioned to follow the

procedure laid down in Ss. 4, 5, 6, of the Partition Law. The Defendant who

sought to partition a larger land than that of the Plaintiff has not followed the

imperative procedure laid down in S19(2)(g). (iii) The mere registration of the

lis pendens alone would not entitle the 2nd Defendant to have a larger land

partitioned unless he follows the procedure laid down in S. 19(2)(a)-(g).

Under S. 19(2)(g) requirement of S.12 becomes applicable to a defendant who

seeks to have a larger land partitioned. (iv) Error in not following the provisions

of S.19(1) amounts to an illegality, thus Revision lies.

Stamp duty

In terms of section 74(1) of the Partition Law all pleadings and processes and

all documents filed or produced in a partition action are exempted from stamp

duty. Similarly all partition deeds also are exempted.

SURVEYORS and COMMISSIONERS OF COURT.

In partition cases, Licensed Surveyors and the Surveyor General play an

important role. So much so, it is widely accepted that the disposal of partition

cases could be expedited depending on the pace kept by the surveyors in

executing the commissions issued to them both in respect of the preliminary

survey and the preparation of the scheme of partition. Hence, it is the duty of

the Bar and the Bench to ensure that a friendly atmosphere is created to

enable the surveyors to discharge their duties with contentment. In addition,

the surveyors also must realize that they have duty by the suitors to execute

the commissions without unnecessary delay.

Section 73 the Partition Act imposes a duty on the district judge to have proper

control over the panel of Surveyors. Before including the name of a surveyor in

the list prepared under subsection (1), the court shall make such inquiries as

may be necessary to ascertain whether a particular surveyor will be regularly

available to undertake the commissions issued to them.

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The Partition Law requires that the District Judges prepare a list of Surveyors

who reside or carry on business within the jurisdiction. This list is prepared to

facilitate the issuance of commissions in partition cases. It further requires that

the list of surveyors is periodically reviewed by the district Judge and the

names of those who are unfit to hold such office are removed forthwith.

Partition Amendment Act No. 6 of 1987, 5 of 198 and 17 of 1997 deal at length

on matters regarding the execution of commissions by the commissioners.

DUTIES OF THE REGISTERED ATTORNEY AT LAW IN PARTITION CASES

TO ELIMINATE INORDINATE DELAY IN THE DISPOSAL OF PARTITION

SUITS.

1. To tender the Commission papers for the preliminary survey at the first

available opportunity.

2. To deposit the initial survey fees without delay.

3. Upon the return of the commission to pay up the balance survey fees, if

any, without delay.

4. Upon entering the interlocutory decree to partition the land or sale to

tender the commission papers without unnecessary delay along with the proof

of initial deposit for that purpose.

There are instances where parties in a partition action have taken more than a

year to pay the balance survey fees. This is very unsatisfactory and every step

should be taken to avoid delay in the payment of balance Survey fees. It is

preferable, if judges could instruct the registry by way of standing orders to

ascertain the balance survey fees within a week from the date on which the

Surveyor makes his return. Thereafter, the Registrar can immediately write to

the party at whose instance the Commission was issued to pay the survey fees

on or before a particular date. For this purpose he need not write separate

letters each time he needs to communicate to a party. He can prepare a printed

letter for that purpose which can be perfected by a clerk immediately calling

upon him to pay the survey fees and dispatch the same by post. If the party

concerned fails to pay the Survey Fees the Registrar should follow it up and

send a reminder about the payment drawing the attention of the party at

default that his undivided interests of the subject matter are liable to be sold in

xxiii

satisfaction of the balance survey fees. This would bring about the desired

result and the inordinate delay in the execution of Commissions can be avoided

to a great extent.

Necessary parties

Section 5 of the Partition Law deals with the parties who are required to be

included in the action. It reads as follows…

5. The plaintiff in a partition action shall include in his plaint as parties to the

action all persons who, whether in actual possession or not, to his knowledge

are entitled or claim to be entitled-

(a) to any right, share or interest to, of, or in the land to which the action

relates, whether vested or contingent, and whether by way of mortgage, lease,

usufruct, servitude, trust, life interest, or otherwise, or

(A) to any improvements made or effected on or to the land: Provided that in the

case of a mortgage, the mortgagee or any person claiming any interest under

him shall be included as a party only if he has registered an address for service

of legal documents in terms of sections 6 and 28 of the Mortgage Act ;

Provided further that if such mortgagee or person aforesaid claims under an

instrument executed more than fifteen years prior to the institution of the

action, he shall not be a necessary party to such action, unless he has

registered an address for service of legal documents in terms of the aforesaid

provisions of the Mortgage Act within a period of ten years prior to the date of

institution of the action.

In virasingha Vs Virasingha, SLR 2002, Vol :1, Page: 264 the plaintiff

instituted action in terms of partition Law, No. 21 of 1977, seeking a sale of the

corpus, since a substantial house located in the premises covers almost the

entirety of the land and a partition thereof is not possible. The 4th defendant-

respondent (the 4th defendant) claimed that he was a lessee of the premises

upon an indenture of lease which had been notarially attested. At the trial of

the action the 4th defendant put the lease in issue (issue No. 10) and further

claimed that the Rent Act applies, that the plaintiff was estopped from denying

tenancy and that he was a tenant of the co-owners of the premises (issues Nos.

11, 12 and 16). The 4th defendant also claimed that he was entitled to

compensation for useful and necessary improvements which he had effected

(issue No. 13).

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At the conclusion of the trial, the district judge held the Indenture of Lease

relied on by the 4th defendant, was executed after the lis pendens was

registered and as such was void in terms of section 66 (2) of the Partition Law.

This is undoubtedly so, and the 4th defendant has not appealed from these

findings. As regards the claim for compensation, the Court has held that the

documents produced as to the expenditure have not been proved and the 4th

defendant failed to establish that he got the consent of the plaintiff and the 1st

and 2nd defendants to effect any improvements. Therefore, these issues were

also answered against the 4th defendant and he has not appealed from the

findings.

The issues as to tenancy have been answered in favour of the 4th defendant

and it was held that the Rent Act applies in respect of the premises and that he

is the tenant of the co-owners (issues No. 10, 11, 12 and 16). The plaintiff

appealed from the said findings to the Court of Appeal. The appeal was

dismissed by the Court of Appeal.

The Supreme Court setting aside the judgment of the Court appeal decided that

the Partition Law makes the same distinction as made in section 2 of the

Prevention of Frauds Ordinance of 1840, in respect of the type of lease that

would not be considered as an encumbrance affecting land. In both laws, whilst

a lease for a specified period exceeding one month is considered an

encumbrance affecting land and should be notarially executed, a lease at will or

for a period not exceeding one month (same language used in both laws) is not

considered an encumbrance affecting land. Therefore, it is not permissible to

enter a finding, in a judgment, interlocutory decree or final decree, in a

partition action with regard to any claim of a monthly tenant in respect of the

land that is sought to be partitioned. It further held that in view of the

provision of section 5 (a) read with section 48 (1), the claim of a monthly tenant

is not within the scope of a partition action. It is not permissible to enter a

finding, in a judgment, interlocutory decree or final decree, in a partition action

with regard to any claim of a monthly tenant in respect of the land sought to be

partitioned. Such question should be considered, if at all, at the stage of

execution in terms of section 52 of the Law.

Commenting on the failure of Court to notice a necessary party disclosed in the

surveyors report which required consideration as to whether a certain allotment

of land depicted in the preliminary plan needed the exclusion, in Rev Indurewe

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Dhammananda Vs Piyatissa And Another12 the court of appeal held that the attendant

circumstances of the case, supported the conclusion that in spite of the

Surveyor's report detailing the areas to be excluded no effort was made to issue

notice on the necessary parties and at the trial when the contents of the report

of the Surveyor was considered the same received scant attention. Besides the

report of the Surveyor without doubt became very relevant to the investigation

of title. This, I hold is a glaring lapse which taints the entire proceedings and

transcend the bounds of procedural errors. In accordance with the evidence of

the plaintiff lot (1) depicted in the plan had been exempted from the partition

and on the bare statement of the plaintiff lots (2) (3) (5) and (8) had been

included despite the clear finding of the Surveyor who said that the said lots

formed part of a separate adjoining land. In the absence of cogent evidence of

prescriptive possession of the lots (2) (3) (5) and (8) which lots the Surveyor

categorically stated formed part of the adjoining land and there been no steps

taken under the provisions of section 5 of the Partition Law and, however, as

setting aside all proceedings would be too sweeping and may cause

unnecessary hardship, inconvenience and delay, I would in the circumstances,

to meet the ends of justice direct that the interlocutory decree

ADDITION OF PARTIES

Section 69 (1) provides, for addition of parties in a partition action. In terms of

section 69 the court may at any time before judgment is delivered in a partition

action add as a party to the action, on such terms as to payment or

prepayment of costs as the court may order-

(a) any person who, in the opinion of the court, should be, or should have been,

made a party to the action, after issuing to such person, a notice, requiring him

to make an application to be added as a party to the action on or before the

date specified in the notice, and upon such person making such an application

or;

(b) any person who, claiming an interest in the land, applies to be added as a

party to the action.

(1A) Any person who applies to be added as a party under the provisions of

subsection (1) of this section, shall file, along with his application, a

memorandum substantially in the Form set out in the Second Schedule to this

12

2001 SLR 3 365,

xxvi

Law nominating in accordance with the provisions of section 81, a person to be

his legal representative for the purposes of the partition action in the event of

his death pending the final determination of the action.

(2) Where a person is a party to a partition action and his right, title and

interest to or in the land to which the partition action relates are sold, during

the pendency of the partition action, in execution of, or under any decree, order

or process of any court, the purchaser of such right, title and interest at the

sale shall be entitled to be substituted for that person as a party to the

partition action, and such purchaser when so substituted, shall be bound by

the proceedings in the partition action up to the time of substitution. The

purchaser shall, along with his application to be substituted, file a

memorandum, substantially in the form set out in the Second Schedule to this

Law, nominating in accordance with the provisions of section 81, a person to be

his legal representative for the purposes of the partition action in the event of

his death pending the final determination of the action.

(3) Where a party to a partition action derives his right, share or interest to, of

or in the land to which the action relates under or by virtue of a revocable deed

of gift made by any other person or an instrument which reserves to any other

person the right to claim a re-transfer of such right, share or interest as

aforesaid within a period specified therein, such other person shall be entitled

to intervene at any time before judgment in the said action and establish the

right claimed by him as if he had been a co- owner at the time of the institution

of the action. An intervenient under this subsection shall, with his application

to intervene, file a memorandum substantially in the form set out in the Second

Schedule to this Law nominating, in accordance with the provisions of section

81, a person to be his legal representative for the purposes of the partition

action in the event of his death pending the final determination of the action.

(4) It shall be lawful for the court to order any person applying to be added as a

party under subsection (1), to give security for costs or prepay costs if the court

is of opinion that such applicant has been guilty of unreasonable delay in

presenting his claim or for other good and sufficient cause.

(5) In determining the quantum of the costs to be ordered under this section,

the court shall take into consideration, any delay on the part of the applicant,

the stage at which the action is, any expenditure caused unreasonably to the

parties and any other matter that the court may consider relevant.

xxvii

(6) Where any person referred to in this section who is ordered to give security

for costs or prepay costs, fails to give such security or make prepayment of

costs, within the time allowed therefor by court, the court may reject his

application. The Court may at any time before judgment is delivered in a

partition action, add any person as a party to the case, if the Court is of the

opinion that such person is having any interests in the land. The Court is also

empowered to issue notice on any such person in the form of second schedule

of the Law, requiring him to make an application to be added as a party on or

before the date specified in the notice. When any such application is made, the

applicant shall file along with his application a memorandum substantially in

the form set out in the second schedule to the Law, nominating a person to be

his legal representative for the purpose of action in the event of his death

pending the final determination of the action, as contemplated in section 81 of

the Law.

Where a person is a party to a partition action and his rights, title and interest

to or in the land to which the partition action relates are sold, during the

pendency of the partition action, such party is entitled to be substituted and

shall be bound by the proceedings in the partition action up to the time of the

substitution. Such rights may be transferred in execution of any decree or any

other process of the Court or by a sale.

When the purchaser makes an application to that effect he shall file a

memorandum substantially in the form set out in the second schedule of the

Law nominating a representative as required by section 81 of the Law.

When a party to a partition action derives his rights, share or interest to, of, or

in the land to which the action relates under or by virtue of a revocable deed of

gift made by any other person or an instrument which reserves to any other

person the right to claim a retransfer of such right, share or interest as

aforesaid within a period specified therein, such other person shall be entitled

to intervene at any time before judgment in the said action and establish the

rights claimed by him, as if he had been a co-owner at the time of the

institution of the action. Any intervenient who makes such application shall

also file a memorandum as contemplated in section 81 of the Law.

It is lawful for the Court to order to give security for cost against the person

applying to be added if the Court is of the opinion that such applicant has been

guilty of unreasonable delay in presenting his claim or for other good and

sufficient cause.

xxviii

In determining the quantum of costs the Court shall take into consideration,

any delay on the part of the applicant, the stage at which the action is, any

expenditure caused unreasonably to the parties and other relevant matters. If

any person has failed to give security for costs or prepay costs within the time

allowed therefore by Court, the Court may reject his application. The Court is

empowered to make any appropriate order with regard to payment or pre-

payment of costs at its discretion in all kinds of applications for addition of

parties as referred to above.

The case of Perera Vs. Perera (2 N.L.R. 370) illustrates the kind of

disqualification that may stand in the way of filing a partition suit when he is

not in possession of the corpus and his alleged title is in dispute. The facts

briefly in that case are the father gifted a land to his daughter which she

handed it back to him for safe keeping. She never possessed the land and the

father let it to the tenant and collected the rents. The dispute arose when the

father claimed the prescriptive title after the death of the daughter. It was

decided that the father‟s possession was in trust for his daughter and not by a

title adverse to her. No partition suit was available to the father when he has no

possession and when his title is disputed.

The soundness of the ruling in Perera Vs. Perera (2 N.L.R. 370) was doubted in

Silva Vs. Paulu (4 N.L.R. 174) where Lawrie J. himself expressed his

dissatisfaction as to the correctness of ruling that an action for partition cannot

be brought by a person not in possession and where his title is disputed. It was

further held that in partition suits the Court ought not to proceed on

admissions, but must require evidence in support of the title of all the parties

and allot to no one a share except on good proof.

The decision in Sinchi Appu Vs. Wijegunasekera (6 N.L.R. 1) put an end to the

controversy to a great extent. The Supreme Court in that case held that 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 maintain an action to have

that land partitioned despite the fact that he nor his predecessors had no

possession, and although the defendants wholly deny his title.

The question whether in a partition action the corpus should be confined to one

land was the subject of discussion in a case that originated in the district court

of Colombo and Bonser CJ in that time thought it was not possible. Later in the

case of Peris Vs. Peris (6 N.L.R. 321) Layard C.J., held that the Partition

xxix

Ordinance No. 10 of 1863 permits an action to be raised for the partition or

sale of several lands held in common.

In Daniel Vs. Saranelis Appu (7 N.L.R. 163) Layard C.J. decided that the power

which section 30 of the Buddhist Temporalities Ordinance gives to trustees is

wide enough to include a right to bring a partition suit, when he finds it

inexpedient to hold together with co-owners the land vested in him.

CAN A PARTITION SUIT BE INSTITUTED IN RESPECT OF A PORTION OF A

LARGER LAND.

It is trite law that an action for partition cannot be brought in respect of the

corpus which in itself is an undivided portion of a larger common land. In the

case of Girigoris Appuhamy Vs Maria Nona 60 NLR 330 it was held that where

land is possessed in different portions by different co-owners for convenience of

possession, a partition action cannot be maintained in respect to one portion

only, and that the entire land should be brought into the action. Brampy

Appuhamy Vs Manis Appuhamy 60 NLR 337 is an important decision as

regards the validity of an interlocutory decree entered in respect of smaller land

than what the plaintiff sought to partition in his plaint.

The corpus sought to be partitioned by the plaintiff was described in the plaint

as a land of about six acres in extent, and the commission was issued to a

surveyor to survey a land of that extent. The surveyor, however surveyed on

land only two acres and three roods. Interlocutory decree was entered in

respect of two acres and three roods and in extent without any question being

raised by any of the parties as the wide discrepancy between the extent given in

the plaint and that shown in the planned made by the surveyor. None of the

defendants had the averred under section 23 (1) of the partition act that only a

portion of the land described in the plaint should have been made the subject

of the action. It was held that the district court acted wrong in this allows the

in proceeding to trial in respect of what appeared to be a portion only of the

land described in the plaint.

xxx

Executors and administrators

In terms of section 56 of the Partition Law, no person acting in the capacity of

an executor or administrator shall institute a partition action in respect of any

land belonging to the estate which he is administering.

Before the commencement of the operation of the present Partition Law, in the

case of Weerasooriya Vs. Bastian (Jayawardena‟s Partition, 2nd edition, page

37) Bonser C.J held, that an executor cannot institute a partition action

without obtaining the prior permission from the Court.

Legal representatives

Section 81(1) of the Partition Law requires every party to a partition action to

file a memorandum substantially in the form set out in the second schedule of

the Law nominating at least one person, and not more than three persons, in

order of preference to be his legal representative for the purpose of the action in

the event of his death pending the final determination of the action. Such

representatives are known as „nominees‟ and the parties who made such

nominations are known as „nominators‟. In the event of the death of such a

nominator, one of such nominees shall be substituted in place of the deceased

nominator in order of preference according to the memorandum.

In the event of the death or incapacity of the nominee, whose name appears

first in the memorandum, the next person nominated in order of preference

shall be deemed to be the legal representative for the purpose of the action, in

the event of the death of the nominator.

When a' person is so nominated he shall subscribe his signature to the

memorandum signifying consent to be so appointed as legal representative. The

signatures of the nominators and nominees have to be witnessed by an

Attorney-at-Law or Justice of Peace or a Commissioner for Oaths.

In any event, failure to file such memorandum together with a plaint, statement

of claim, or an application for addition of parties is not considered as a defect to

dismiss such papers notwithstanding the provisions in section 7 of the Law.

The Court is empowered to make an order on its own motion or on an

application of any party to file a memorandum of the above mentioned nature

at any time before the final determination of the action. If a nominee desires

withdrawing from his capacity of nominee, he is entitled to make an application

to the Court to that effect and the Court can make an order to strike off the

xxxi

name of such nominee from the memorandum. When such nominee is

permitted to withdraw, the nominator is entitled to furnish a fresh

memorandum by nominating one or more new persons to be his nominees.

In terms of section 81(5) the nominator too is entitled to make an application

with notice to the nominees to tender a fresh memorandum nominating one or

more new nominees. When the Court accepts the new memorandum, the

previous memorandum filed by that party stands revoked and the fresh

memorandum shall forthwith take effect.

Upon the death of the nominator, the person first nominated in the

memorandum, shall be deemed to be the legal representative of such

nominator. Such legal representative is entitled to take all such steps for the

purpose of the action as the deceased nominator would have been entitled to

take had he been alive. Such a nominee is bound to act as legal representative

in the case. If he declines to act in such a capacity, he shall obtain the leave of

the Court after making an application by way of petition with notice to the

other nominees, if any in the memorandum. The Court after considering such

an application is empowered to make an order releasing such a nominee from

his responsibility.

In the event of the Court granting such permission, the nominee who is next in

order of preference in the memorandum filed by the nominator shall be deemed

to be the legal representative of such deceased nominator, for the purposes of

the action.

In the event that an application is made by sole nominee or the sole remaining

nominee of the deceased nominator to withdraw from the said capacity of

nominee, he shall notice the heirs of the deceased nominator and the Court can

appoint one of the consenting heirs of the deceased as a legal representative.

Section 81(9) provides that the failure to appoint a legal representative or to file

a memorandum nominating the nominees to represent the estate of the

deceased parties is not a ground to invalidate the proceeding in a partition

case. Any decree or order made under the law or the sale effected under the law

shall be deemed valid and effective despite the non-conformity of such

provisions and such order shall bind the legal heirs and representatives of such

deceased party or person.

xxxii

On the death of a party, who had failed to file memorandum as required by this

law, any person who claims to be a legal representative of the deceased, may

apply to Court by an ex-parte application, requesting that he be appointed as

the legal representative of the deceased party. If the Court is satisfied that such

applicant is a suitable person to be a legal representative of the deceased and

such appointment is necessary the Court may appoint the said person to be the

legal representative of such deceased party for the purposes of the action.

When such representative is so appointed, he is bound by all proceedings

which held up to the time of such appointment. In any event such application

for an appointment shall not be a ground for postponement of the trial. But

when reasonable grounds exist for postponement the Court is empowered to do

so in the interest of justice after recording reasons and ordering pre-payment of

cost. It is purely a matter of discretion vested in the Court and to be exercised

while considering the previous steps in the case.

After the death of a nominator, his heirs or one of his heirs may make an

application to Court to remove the legal representative appointed in the

memorandum and to appoint the other person who is next named in order of

preference in the memorandum filed by the deceased nominator. Similarly, he

or they may ask some other person to be appointed instead of the nominees

included in the memorandum. When such application is made, it is necessary

to make such nominees, respondents to the application. Section 81(12) states,

that the proceedings shall not be postponed or adjourned by reason of the

death of a party or person required to file a memorandum under this law.

As defined in section 81(14) the „Legal Representative‟ is a person who

represents the estate of a deceased party or person, for the purposes of the

action, by virtue of a nomination, or of an appointment by Court under section

81 of the Law.

In the case of Nallakaruppen Chettiar Vs. Hepponstall (52 N.L.R. 396)

Nagalingam J. held, that in a partition case, if the plaintiff dies while the action

is pending and his interest (e.g. fiduciary interest) in the land sought to be

partitioned terminates with his death, one of the defendants cannot be made a

party plaintiff for the purpose of continuing the action, when such defendant

does not claim any interests under or in succession to the deceased plaintiff.

Neither section 18 nor section 396 of the Civil Procedure Code permits such

procedure. The proper order to be made in the circumstances would be one of

abatement.

xxxiii

The Civil Procedure Code governs procedure to be followed in partition actions

and it is not competent to a Court to devise the procedure of its own unless

such a course becomes necessary and permissible under section 839.

In the case of Tikiri Vs. Lamaya (71 N.L.R. 125) Manicavasager J. held that,

where pending in appeal in a partition action, one of the plaintiff-appellants

dies, and no steps are taken to substitute a person to represent the deceased,

the Court must endeavour to compel the parties to bring the action to a

termination; it may dismiss the action only in the event of the parties, duly

represented, not prosecuting the appeal with due diligence. "

Registration of lis pendens

As it is required in section 6(1) of the Partition Law, that the plaintiff, together

with the plaint shall file or cause to be filed in Court a lis-pendens addressed to

the Registrar of Lands of the district in which the land sought to be partitioned

is situated. Where the land is situated in two or more registration districts, a

separate application shall be made for registration of the action as a lis-

pendens addressed to the Registrar of Lands of each of those districts. Such

applications to be submitted in triplicate substantially in the form prescribed

by the Registration of Documents Ordinance and shall contain blank space for

insertion of the number to be assigned to the action by the Court. Three sets of

applications shall be marked as „original‟, „duplicate‟ and „triplicate‟. No fee

shall be charged for registration of a lis-pendens in partition cases.

In the case of Kanagasabai Vs. Velupillai (54 N.L.R. 241) L.M.D de Silva J. held,

that;

“Failure to register duly a lis-pendens in a partition action as required by

section 12(1) of the Registration of Documents Ordinance deprives the decree

entered in the action of the „conclusive effect‟ which it would otherwise have

under section 9 of the Partition Ordinance by reason of the fact that it is a

decree not entered as „hereinbefore provided.”

Plaintiffs in appeal claimed title to the land in dispute by virtue of a final decree

entered in a partition action which, however, had been registered in the wrong

folio as a lis-pendens. The defendant, who was not a party to the partition

action, contended that the decree for partition was not „good and conclusive‟

against him within the meaning of section 9 of the Partition Ordinance because

xxxiv

the action had not been „duly registered‟ as a lis-pendens as required by section

12(1) of the Registration of Documents Ordinance.

The partition decree relied on by the plaintiffs did not possess the character of

a decree which was „good and conclusive against all persons whomsoever‟

within the meaning of section 9 of the Partition Ordinance.

The failure to register the lis-pendens in a partition action as required by

section 12(1) of the Registration of Documents Ordinance renders the decree

entered in the action void by reason of lack of jurisdiction in the Court which

entered it.

In Uberis Vs. Jayawardene (62 N.L.R. 217) Basnayake C.J. held that:-

“In a partition action, when a commission is issued to a surveyor to carry out a

preliminary survey it is the duty of the surveyor to adhere strictly to its terms

and to locate and survey the land he is commissioned to survey. It is not open

to him, even with the consent of the parties, to survey a portion only of the land

and submit the plan and report of such survey. If he is unable to locate the

land he is commissioned to survey, he should so report to the Court and ask.

for further instructions. An action in respect of one land cannot be converted

into an action in respect of another land by an amendment of pleadings.”

Pulle, J. held that, when a plaint in a partition action is amended so as to

substitute a new corpus for the one described in the first plaint, a fresh lis-

pendens would be necessary.

In Don Sadiris Vs. Heenhamy (68 N.L.R. 17) Sirimane J. decided that:-

“Where, in a partition action, a contesting defendant raises the point that the

lis-pendens has been registered in the wrong folio, the action should not be

dismissed merely on that ground. When it is found in the course of a trial that

the lis-pendens has been incorrectly registered, the proper procedure is to take

the case off the trial roll and offer the plaintiff an opportunity of correcting his

mistake, and thereafter, taking such steps as are necessary to bring the case to

trial.”

The Court also considered the judgment in the case of Seneviratne Vs.

Kanakaratne (39 N.L.R. 272) in which the Court held that there is no provision

xxxv

in the Registration of Documents Ordinance to reject a plaint on failure to

register lis-pendens.

In the case of Rasah Vs. Thambipillai (68 N.L.R. 145) „Sansoni C.J., T.S.

Fernando, J., and Abeyesundere J. (Sri Skanda Rajah J., and G.RA. Silva J.,

dissenting) held that where interlocutory decree has been entered in terms of

section 26 of the Partition Act, a person is not entitled to avail himself of the

provisions of section 48(3) in order to intervene subsequently and have the

decree set aside on the ground of failure to register the action duly as a lis-

pendens under the Registration of Documents Ordinance. The effect of section

70(1) of the Partition Act is that no intervention can be permitted at any stage

after interlocutory decree has been entered.‟

In the case of Nonnohamy Vs. Odiris Appu (68 N.L.R. 385) Sansoni C.J. held

that, no intervention can be allowed in a partition action after interlocutory

decree has been entered on the basis that the lis-pendens is not duly

registered.

In Dharmaratana Thero Vs. Siyadoris (1985 (2) S.L.R. 245) the plaintiff filed the

suit in 1950 seeking a partition of the land called „Udakumbura‟. This land was

surveyed on a commission. The 62nd defendant taking up the position that the

corpus sought to be partitioned was a portion of a larger land called

„Halgahakumbura‟ got the larger land surveyed in 1953 and again in 1966.

There were 275 parties in the case and it eventually came up for trial on

11.1.1978 on which date the 62nd defendant moved to be allowed to register

the lis-pendens in respect of the larger land. This was objected to

by all the parties. The Court by its order refused the application. After an

unsuccessful earlier attempt to obtain leave to appeal from this order, the 62nd

defendant moved the Court of Appeal in revision.

G.P.S. de Silva J. held that:-

1. “it is on the motion of the party defendant interested in having the larger

land partitioned that the duty of the Court arises to specify in terms of section

19(2)(b) of the Partition Law No. 21 of 1977 the party by whom and the date on

or before which the application for the registration of the action as a lis-

pendens in respect of the larger, land should be filed. The petitioner filed his

amended statement in May 1956 and his present application made on

11.1.1978 when the case for trial was belated.

xxxvi

2. the petitioner could still participate in the trial. He could pursue his claim

in his statement of claim for interests in “Udakumbura” or in the alternative

seek a dismissal of the action on the basis that the plaintiff was seeking to

partition only a portion of a larger land.”

In Sopaya Silva Vs. Magilin Silva (1989 (2) S.L.R. 105) the plaintiff filed plaint

to partition a land of 8A. 3R. 29P and lis-pendens was registered in the folios

where the deeds for this land were registered. When the commission was taken

out the Surveyor surveyed an extent of 11 A.1R. P33. No contest was raised

about the registration of the lis-pendens. At the trial the contest was resolved

and evidence led accordingly. The District Judge dismissed the case holding

that the lis-pendens was wrongly registered.

S.N. Silva J. held that:-

“It was not open to the District Judge to dismiss the case on the point of wrong

registration of the lis-pendens - a point on which there was no contest and no

argument was heard. It is a violation of natural justice. The lis-pendens being

registered in the folios were the deeds of the land described in the plaint were

registered was correctly registered.

District Judge should have permit the plaintiffs to continue the action to

partition the larger land as depicted in the preliminary survey. This course of

action involves the amendment of the plaint and the taking of consequential

steps including the registration of a fresh lis-pendens. ”

The Court considered the judgment in Brampy Appuhamy Vs. Menis

Appuhamy (60 N.L.R. 337) in which it was held that the Court acted wrongly in

proceeding with a partition action where the land surveyed was substantially

smaller than the lands described in the plaint.

Rejection of the plaint

If a plaintiff has failed to comply with the provisions of section 4, 5 and 6 of the

Partition Law the Court is empowered to return the plaint to the plaintiff so

that he may within the time fixed by the Court comply with those requirements

or reject the plaint under the provision of section 7 of the Partition Law. In any

event the right of the Court to reject a plaint on the ground set out in section

46 of the Civil Procedure Code is not affected by the said provisions.

xxxvii

In Vethavanam Vs. Retnam (60 N.L.R. 20) K.D de Silva Judge decided that once

a plaint is accepted and it is not ex-facie defective, the Court has no power to

reject it subsequently under section 7, read with section 4 of the Partition Act

No. 16 of 1951.

Dismissal of the plaint.

When a plaint in a partition action is accepted, the Court shall forthwith

forward a lis-pendens to the Registrar of Lands of each Land Registry in which

the action is to be registered. Section 8(1) of the Law requires to insert the case

number in each copy of the application for registration and to transmit such

documents within 2 weeks from the date of acceptance of the plaint. The Court

also shall fix a date not later than 7 weeks from the date of acceptance of the

plaint, for the return of the registered lis-pendens by the Registrar of Lands.

The right to extend the time period for such return is recognized by the proviso

to section 8(l)(cc). The Court is also obliged to fix a date not later than 7 weeks

from the date of acceptance of the plaint for deposit of the estimated cost of the

prelirtiinary survey by the plaintiff. Such costs are to be determined in

considering the prescribed rates by regulations.

If the plaintiff fails to deposit such cost before the date or extended date, the

Court is empowered to dismiss the plaintiffs‟ action under section 9 of the

Partition Law.

Section 10(1) of the Law makes provisions that if the cost deposited is less than

the actual cost so determined, the amount of the difference shall be deposited

in the Court by the plaintiff. If the Plaintiff fails to deposit such amount it is

lawful for the Court to direct the recovery of the amount so determined

considering it as a decree in favour of the Surveyor against the party o; Jered to

pay that amount.

Return of Lis pendens after registration

Section 11 of the Partition Law requires that when Registrar of Lands receives a

lis-pendens transmitted by a Court under section 8 is obliged to register the

same and to return to Court triplicate of the application duly endorsed in the

manner prescribed by the Registration of Documents Ordinance on or before

the date fixed by the Court. A copy of such lis-pendens to be sent to the

registered Attorney-at-Law of the plaintiff or directly to the plaintiff when there

is no such registered Attorney.

xxxviii

DECLARATION BY THE PLAINTIFF TO BE MADE UNDER SECTION 12 Section 12 of the Law further requires that the registered Attorney-at-Law of

the plaintiff to file a declaration that he personally inspected the entries in the

register maintained by the Land Registrar after the registration of the

lis-pendens. The plaintiff in a partition case together with a declaration referred

to in subsection 1 of section 12, shall file or caused to be filed in Courts.

SOMAWATHIE Vs MADAWELA AND OTHERS 1983 Sri Lanka Law Reports

Volume 2 , Page 15 (SUPREME COURT) dealt with the question of the finality

of interlocutory and final decrees and the revisionary power of court to set aside

such a decree when there is 'fundamental vice' that transcends the bounds of

procedural error. Declaration ‑ Section 12(1) and 48 of Partition Act and

interpretation of the maxim Expressio unius exclusio alterius was also

considered in the judgment. In a historical pronouncement the Supreme Court

held that When the boundaries of a purportedly divided block in a deed are

insufficient for an exact and precise demarcation the deed conveys only

undivided interests and When there is no proper compliance with Section 12(1)

of the Partition Law in the matter of the declaration stipulated to be filed under

that section and no notice has been served on the claimants before the

Surveyor as required by section 22(l)(a) of the Act then the Appeal Court can

intervene by way of revision, to prevent a miscarriage of justice. Although

section 48 invests interlocutory and final decrees entered under the Partition

Act with finality the revisionary powers of the Appeal Court are left unaffected.

The position is the same under the Partition Law. The powers of revision and

restitutio in integrum of the Appeal Court have survived all the legislation that

has been enacted up to date.

When the language used in a statute has been interpreted by the Courts and

the legislature repeats the same or similar language it may be presumed

(though not a canon of construction in the absence of indications to the

contrary) that the legislature uses such language in the meaning the courts

have given. The maxim expressio unius exclusio alterius is not a maxim of

universal application and must be applied with caution. The exclusio is often

the result of inadvertence or accident and must not be applied where having

regard to the subject matter it would lead to inconsistency or accident. The

words expressed could be illustrative only or used out of abundant caution.

xxxix

In the judgment reported in 2002 - Volume 3 , Page No - 169 - UMMA Vs

ZUBAIR AND ANOTHER - CA- multitudes of irregularities pertaining to the ID

were considered. it was contended that in the original court summons/notice

not issued, Lis pendens not correctly registered and there was non-compliance

with section 12. The Court of appeal said that

(1) Section 48 (4) could not bar a court from holding that in the event summons

had not been even issued from coming to a finding that such non-issue was

improper or that the court had no jurisdiction to proceed. Section 48 (4) could

not suppress the rights of parties to claim their due rights in partition actions

which are decrees in rem.

(2) There has also been blatant disregard to section 14 (1) and deliberate non-

compliance with section 12; even the registering of the lis pendens is not in the

correct folio.

(3) Notwithstanding section 48, the District Court is not precluded from giving

effect to an unlawfully obtained interlocutory decree causing a grave

miscarriage of justice.

It observed that the learned District Judge was correct in his finding that non-

compliance of section 12 of the Partition Act renders the proceedings void ab

initio. The learned District Judge appears to have relied on a number of

authorities particularly, Pelis Vs Silva 60 NLR 289, Iththapana v. Hemawathie

1981 1 SLR 476), Perera v. Commissioner of National Housing 77 NLR 361,

Siriwardena v. Jausu umma 59 NLR 400, to come to a finding that the failure

to notice the parties and even to register the lis pendens in the proper folio in

not in accordance with the law and that notwithstanding section 48 referred to

above that a District Judge is not precluded from giving effect to an unlawfully

obtained interlocutory decree causing a grave miscarriage of justice.

(a) if the aforesaid declaration discloses any person who is not mentioned in

the plaint as a party to the action but who should be made such a party under

section 5, an amended plaint including therein that person as a party to the

action, which amended plaint shall be deemed for all purposes to be the plaint

in the action;

(b) as many summonses as there are defendants, each such summons being

summons substantially in the form set out in the second schedule to this Law

xl

and containing the name and address of the defendant on whom that summons

is to be served;

(c) if the language of any defendant is not the language of the Court, a

translation of the summons in that language;

(d) as many copies of the plaint as there are defendants, with a translation

thereof in the language of each defendant whose language is not the language

of the Court; or, with the leave of the Court; where compliance with this

requirement involves an expense which appears to the Court excessive and

unnecessary in the circumstances, a concise statement of the relevant

paragraphs of the plaint relating to each defendant with translations thereof in

the language of any defendant whose language is not the language of the Court;

(e) one copy of the plaint certified by the registered Attorney as a true copy,

such copy being the copy to be attached to the commission issued to the

Surveyor who is to make preliminary survey of the land to which the action

relates;

(f) as many copies of a notice substantially in the form set out in the second

schedule to this Law as there are lands to which the action relates together

with translations thereof in the language of any defendant whose language is

not the language of the Court;

(g) such number of copies of the aforesaid notice and of each translation

thereof referred to in paragraph (f) of this subsection as would enable the

transmission of one copy of such notice and one copy of each such translation

to the Grama Niladhari of the division or of each of the divisions in which the

land or each of the lands to which the action relates is situate;

(h) a precept to the Fiscal substantially in the form set out in the second

schedule to this Law.

If the plaintiff without sufficient cause fails to comply with the above mentioned

provisions the Court is empowered to dismiss the plaintiffs action under section

12(3) of the Law.

Issue and service of summons and publication

When the Court is satisfied that a partition action has been registered as a

lis-pendens under the Registration of Documents Ordinance and the estimated

xli

cost of the preliminary survey of the land had been deposited the Court shall

make orders to issue summons on the defendants under section 13(1) of the

Law. Further the notices and copies of the translations of the notices filed in

Court under paragraphs 12(2)(b), (c), (d), (f) and (g) also to be sent by registered

post to the defendants and respective Grama Niladharis.

When the Court makes orders to issue summons the Court shall appoint a date

on or before which the defendants are required to file their statements of claims

if any, and to comply with the other requirements of the summons.

When such dates to be fixed, the Court shall take into consideration the time

ordinarily required for the due service of summons. If the language of the

defendant is not the language of the Court, there shall be attached to the

summons a translation of the summons and the plaint.

In view of the applicability of section 14 of the Law the Court shall follow the

provisions of the Civil Procedure Code relating to the service of summons in a

partition case.

Section 15(1) of the Law requires sending a copy of the notice and a copy of the

translation filed under section 12(2)

(g) of the law to the Grama Niladhari of the division for the purpose of

exhibition in a conspicuous position at his office for a period of not less than 30

days. After such notice is exhibited the Grama Niladhari shall forward a report

to the Court substantially in the form set out in the second schedule.

Section 13(3) further requires that the fiscal shall exhibit the notice transmitted

to him under section 13 (1) in a conspicuous position on the land to which the

notice relates. The contents of such notice to be orally proclaimed, after beating

of tom-tom on such land and at some public place in the neighbourhood of

such land or of each such land or in the village in which such land is situated.

The cost of such proclamation shall be borne by the plaintiff in the first

instance and shall be recoverable “pro-rata. ”

In terms of section 77 of the Partition Law the relevant provisions of the Civil

Procedure Code shall apply in relation to the execution or service of writs,

warrants and other processes of the Court in a partition action.

In the case of Caldera Vs. Santiagopillai (22 N.L.R. 155) After several

unsuccessful attempts to serve summons on the defendant in a partition, case

xlii

the Court on an application of the plaintiff, made an order for substituted

service of summons by affixing of the summons to the land. There was a

watcher on the land who was in charge of the defendants interests. After the

final decree was entered the defendant came to know the decree and applied to

the District Court to set the decree aside. The Court granted the application,

holding that there had been no effective service of summons. *

When the matter was taken up in appeal to the Supreme Court, Bertram C.J

held that, the service of summons was not in order and that the Court had

jurisdiction to make the order it made. Under section 3 of the Partition

Ordinance, if the defendant cannot be found, summons will have to be served

upon the person in physical occupation of the property and it is only when no

such person can be found that the Court can prescribe other modes of service.

The order was made ex-parte behind the back of the defendant. A person

seeking to set aside such an order must first apply to the Court which made it,

which is always competent to set aside an ex-parte order of this description.

In the case of Don Lewis Vs. Dissanayake (70 N.L.R. 8) the application was

made for revision or restitutio in integrum and the petitioner sought to have the

interlocutory decree entered in a partition action set aside. The main ground

urged was that although the petitioner was disclosed as a claimant in the

Surveyor‟s report, no notice or summons was thereafter served on him as

required by section 22 of the Partition Act. The 8th defendant-respondent also

supported the application on the ground that, although he was named as 8th

defendant in the plaint, he never received any summons or notice.

The facts showed that the petitioner had tried to pass off as, and usurp the

place of, the 8th defendant-respondent and that, long before the interlocutory

decree was entered, he could have sought to have himself added as a party

instead of taking the inexplicable course he did. Further, even when his

application to intervene was dismissed by District Court, the petitioner did

nothing for 8 months.

Tennakoon J. held that it was not the function of the Supreme Court, in the

exercise of the jurisdiction now invoked, to relieve parties of the consequences

of their own folly, negligence and laches.

xliii

The maxim vigilantibus, non dormientibus, jura subveniunt13 provided a

sufficient answer to the petitioner‟s application. Further, the petitioner did not

display the honesty and frankness expected of a person seeking the

extraordinary powers of the Court.

It was further held that, the right of a party in a partition action to be served

summons may be lost by acquiescence on his part. In the present case the 8th

defendant had not only been allotted his due share but had also failed to take

steps for nearly one year to have the interlocutory decree set aside after he

became aware of it. He was not entitled, therefore, to any relief.

Preliminary survey

As it is contemplated in section 16 (1) of the Law where the Court orders the

service of summons on the defendants, the Court shall forthwith order the

issue of a commission to a Surveyor directing him to survey the land relating to

the action. The returnable date of such commission shall be a date earlier than

30 days prior to the summons returnable date. The Court is also empowered to

extend the time period on an application made by the Commissioner and the

Court shall record the reasons for such extensions. In any event such

extensions shall not exceed 60 days. The commission to be issued shall be

substantially in the form set out in the second schedule and a copy of the

plaint certified as a true copy by the Registered Attorney for the plaintiff shall

be attached to the plaint. The Court is also empowered to issue commissions at

the instance of any party to the action authorizing the Surveyor to survey any

larger or smaller land, than the land pointed out by the plaintiff. In allowing

such commissions, the Court shall be satisfied that it is necessary for the due

adjudication of the action.

Where the Court issues a commission to a Surveyor, the Court also may order

to issue such number of copies of notices substantially in the form set out in

the second schedule to be served on any person (not being a party to the action)

or his agent who at the time of the survey preferred any claim to the land.

13

Law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one’s right, s/he must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Law confers rights on persons who are vigilant of their rights. Usually, law prescribes statutory limitations for enforcing one’s relief against another. One cannot institute a suit after the prescribed statutory period. A person who has kept mum during the statutory period cannot claim for the enforcement of right after the statutory limitation.

xliv

If any person, who is not a party to the case, prefers any claim to the land at

the time of the survey, the Surveyor shall tender a copy of such notice to such

party or his agent. He also shall obtain an acknowledgement in writing

subscribing the signature or the thumb impression of the party or his agent

who receives such notice. Such acknowledgement shall contain the date of

such service too.

When any such notice is served on any claimant or his agent by the Surveyor

under section 16(4) of the Law, it shall be deemed to be a summon served on

such person under the law and no further service is required.

In terms of section 17(1) of the Law, the Commissioner on receipt of the

commission is obliged to issue notice under registered post to all the parties

whose names and addresses stated in the plaint by informing them the date on

which he proposes to commence the survey. Such notice shall be given at least

fourteen days before the survey. Section 17(2) further requires that the

Commissioner shall make arrangements to have oral proclamation after beating

of tom-tom on the land fourteen days before the date fixed for the

commencement of the survey.

On due execution of the commission, if the Surveyor found that some

boundaries are undefined, he shall demarcate the boundaries on the ground

and fix boundary marks with substances which could not be easily removed or

destroyed as required in section 18(1) of the Law. Further he shall before the

date fixed for the return of the report, transmit the same together with the

following information and documents

(a) a report in duplicate substantially in the form set out in the second

schedule to this Law, verified by affidavit stating:-

(i) the dates on which notice of survey was issued to the parties;

(ii) the nature of the land surveyed and of any buildings, walls, wells, trees,

plantations, fences and other improvements thereon;

(iii) whether or not the land surveyed by him is in his opinion substantially

the same as the land sought to be partitioned as described in the schedule to

the plaint;

(iv) the parties to the action who were present at the survey, and the name

and address of any person (not being a party to the action) who, at the time of

xlv

the survey, preferred any claim, the nature of such claim and the date of

service of the notice referred to in subsection (1) of section 16;

(v) the persons, if any, who pointed out the land to be surveyed;

(vi) the result of his investigation of any particular fact or matter specifically

referred to in the terms of his commission;

(vii) the existing means of access to the land from the nearest public road;

and

(viii) any fact, matter or circumstance relating to his

survey or to the land surveyed which, in his opinion, may be necessary for, or

proof of assistance in, the adjudication of the partition action;

(b) a plan in duplicate of the land surveyed, verified by affidavit showing:-

(i) the boundaries of any divisions of the land subsisting at the time of his

survey, such divisions being indicated by appropriate letters or numerals;

(ii) the boundaries of any land belonging to the State which may fall within

the land surveyed by him;

(iii) the locations of all buildings, walls and wells, such locations being

indicated by appropriate letters or numerals;

(iv) the trace or course of any road, path or stream within the boundaries of

the land; and

(v) any other physical feature of or on the land which, in his opinion, may be

necessary for, or proof of assistance in, the adjudication of the partition action.

.

(c) a certified copy of his field notes; and

(d) the acknowledgement of the receipt of notice served on any person

referred to in subsection (4) of section 16, together with the remaining copies

and translations of such notice.

Section 18(2) provides that the documents referred to in 18(l)(a),(b) and (c)

above can be used as evidence without further proof. But, on the application of

any party to the action, the Court is empowered to summon the Surveyor to

examine him orally on any point or matter arising on, or in connection with any

xlvi

such documents or statements. Any omission in the report too can be

questioned from the Surveyor.

If the Court found that the certified copy of the field notes and the plan

submitted by the Commissioner are incorrect, the Court is bound to issue a

fresh Commission to the Surveyor General to be executed by him or any officer

of his Department as authorized by him. On receipt of such commission by the

Surveyor-General, he or his authorized officer is bound to follow the procedure

laid down in section 16,17 and 18 as explained earlier. The Surveyor General is

entitled to have reimbursed the cost incurred in the execution of the

Commission in the manner as to the Court may direct. If such cost is not

deposited by the party who is obliged to do so, it could be recovered as in

decree entered in favour of the State.

In the case of Subramaniam Vs. Thangavadivelu (58 N.L.R. 416) H.N.G

Fernando J. held that:-

“Where in a partition action, a date fixed for preliminary survey fees to be

deposited by the plaintiff, section 10(1) of the Partition Act does not preclude

the Court, in an appropriate case, from subsequently allowing a long period for

the deposit provided that the alteration of the date is made prior to the

expiration of the time originally fixed.”

In PERERA AND OTHERS Vs ADLINE AND OTHERS - COURT OF APPEAL -

2000 - SLR- 3- 93 the need to exercise the power of restitution in intergrum

when the Petitioners have accepted the finality of the Judgment and the

Interlocutory Decree by deliberately not showing due diligence was considered.

It was held that (1) According to S.48(5) and S.48(1) it is clear that the only

remedy available to a person who was not a party to a partition action, is to file

a separate action to recover damages from any party to the action, if he says

that his land has been partitioned, (2) The above provisions state that "the

amount of damages shall be a charge on any share of the land or any money

allotted in such action" makes it clear that a party will not be prejudiced by the

mere fact of not being added as a party - S.49(1) prevents such prejudice.

Jayawickrema, J. observed that "Although in an appropriate case this Court

has jurisdiction to act in Revision and restitutio-in-integrum, but where a party

has deliberately not shown due diligence even after he was notified by the

Surveyor to appear in Court and fails to apply to be added as a party, this

Court will not exercise its jurisdiction in his favour." In this case it was stated

xlvii

that the Petitioners have accepted the finality of the Judgment and the

Interlocutory Decree in this action.

In RICHARD AND ANOTHER Vs SEIBEL NONA 2001 SLR 2 Page 1

interlocutory Decree was entered by way of settlement. The Intervenient

Petitioners who were not parties made an application to intervene in the action,

which was refused. Being aggrieved they moved in Revision and / or in

Restitutio - in - Integrum. It was contended that as the Petitioners were not

parties to the Partition Action they cannot move in Revision or seek Restitutio -

in - Integrum and that as the Interlocutory Decree is final and conclusive it is

not open for the Petitioners to invite Court to exercise the extra ordinary

revisionary jurisdiction due to their own conduct. It was further contended that

the only remedy available at this stage is to institute an action under S. 49 for

damages.

On this question the Court of Appeal held that (i) the parties were not able to

identify the land to be partitioned. Court has accepted as the land to be

partitioned a larger land than the land sought to be partitioned - as given in the

plaint, court has failed to decide on the corpus.

(ii) Court has completely acted in violation of the provisions of the Partition Law

and has accepted by way of a settlement, the evidence of the 1st Defendant,

without investigating into the title of all the parties as required by the Partition

Law. A partition decree cannot be entered by settlement; it is the duty of the

Judge to fully investigate into the title to the land and shares.

"In the event of any party seeking to have a larger land to be made the subject

matter of the action, court shall specify the party to the action to file in Court

an application for the registration of the action as a lis pendens affecting such

larger land and the Court shall proceed with the action as though it has been

instituted in respect of such larger land after taking necessary steps under S.

16, S. 17, C. S.18, S. 29."

(iii) In terms of the proviso to S. 48(3) the powers of the Court of Appeal by way

of Revision and restitutio in integrum shall not be affected.

xlviii

List of Surveyors – Section 73 (1)

As stipulated in section 73(1) of the Partition Law, every District Court shall

from time to time prepare a list of Surveyors who reside or carry on business

within the jurisdiction of such Court. The commissions in partition actions

could be issued to such Surveyors, whose names are entered in such list.

Therefore before the name of a Surveyor is inserted into the list, the Court need

to inquire from him as to whether he is regularly available to undertake

commissions which will be issued by Court.

Disclosed parties

Section 20 of the Law makes provisions to issue notice of the partition case to

be sent by registered post:-

(a) to every claimant, who is not a party to the case and made a claim to the

Surveyor at the time of the survey provided his name is mentioned in the

Surveyor‟s report, and

(b) to every person disclosed by any defendant in the case by stating that to

his knowledge such person has a right, share or interest to, of or in the land in

compliance with section 19(l)(c) of the Law.

It is a duty of the plaintiff or his registered Attorney to file in Court notices to be

sent under sub section 20(1 )(a) above. When a defendant discloses a party,

such defendant is obliged to file necessary notices to be sent to the parties so

disclosed. But such persons cannot be made parties even after the services of

notice unless such persons apply by motion in writing to be added as parties.

When such persons are added the Court shall forthwith appoint a date to their

statements of claim.

The provisions in section 69 with regards to addition of parties have no

applicability to persons disclosed and served notice under section 20 of the

Law.

As section 21 of the Law provides that every person named in the plaint, or

added as a defendant or desiring to be added as a party to the partition action

shall be entitled to obtain certified copies of the plaint or any statement of claim

in the action. But such persons are obliged to pay charges incurred for the

issue of such certified copies.

xlix

Procedure after service of summons

Section 19(1) requires that every defendant on receipt of summons in the action

is obliged to file a statement of claim on or before the date fixed or later date as

fixed by the Court for that purpose. Such statements of claim shall contain his

claim with specific reference to the nature and extent of his right, share or

interests to, of, or in the land to which the action relates. If a defendant

disputes the devolution of title averred in the plaint, he shall file a statement of

claim together with a pedigree showing the devolution of title.

If any party to the action has mortgaged or leased his right, share or interests,

by an instrument under the Registration of Documents Ordinance, he shall

disclose such fact to the Court, and furnish the name and address of such

mortgagee or lessee.

Every defendant in the action is obliged to disclose the name and address of

every person who is having any right, share or interests to the land but not

made a party. Further the defendants are obliged to file a memorandum

substantially in the form set out in the second schedule of the Law, nominating

a person to be his legal representative for the purposes of the action, in the

event of his death pending the final determination of the action under the

procedure stipulated in section 81 of the Law.

If a defendant to a partition action seeks to have a larger land than that to be

partitioned by the plaintiff, made the subject matter of the action in order to

obtain a decree for the partition or sale of such larger land, his statement of

claim shall contain the particulars required by section 4, such as a description

of such larger land by reference to physical metes and bounds, or by reference

to a sketch, map or plan to be appended to the statement of claim. Further the

devolution of title to the land according to the pedigree he relies on and names

and addresses of all persons who are entitled to any right, share or interests so

far as he can ascertain. He shall also comply with the provisions of section 5 by

disclosing necessary parties who are having or claiming any right, share or

interests including the rights of mortgage, lease, usufruct, servitude, trusts, life

interest or otherwise.

Where a defendant seeks to have a larger land made the subject matter of the

action, Court shall specify the party who shall file lis-pendens to be registered

affecting the larger land and deposit of estimated costs of survey of such a

larger land as determined by the Court.

l

Where the party so specified under section 19(2)(b) fails to comply with such

requirements, the Court is empowered to reject the claim made for the larger

land, unless any other party who has made a claim by his statement of claim to

a similar extent of land. The Court may allow an application made by such a

party to take necessary steps within an extended time period. After the action is

registered as a lis-pendens affecting the larger land and estimated cost of

survey of the larger land have been deposited in Court, the Court is bound to

follow the procedure laid down in section I9(2)(d) of the Law, inter alia:-

(i) the addition of all persons disclosed in the statement of claim, at whose

instance the larger land is being made the subject matter of the action,

(ii) proceed with the action as though it had been instituted in respect of

such larger land including the compliance under section 12 of the Law.

Once the Court decided to proceed with the action in relation to such larger

land, the statement of claim filed by the party who sought to include the larger

land, shall file an amended caption by making all persons who are entitled to

claim rights, shares or interests to the larger land according to the devolution

of title averred in his statement of claim. Accordingly, the summons shall be

issued on all such new parties. The notice of the action in respect of the larger

land shall be issued on all parties to the action in the original plaint together

with a copy of the statement of claim on which the Court has decided to

maintain the action for a larger land.

If the defendant, who was ordered to take steps to register the action as lis-

pendens and to deposit the estimated cost for the survey of the larger land,

failed or neglected to comply with such direction, the Court is empowered to

dismiss the action for the larger land. If such orders are complied with, the

Court shall order to issue a commission to survey the larger land as stated in

section 19(2)(g) of the Law.

If any party to a partition action, not appearing by a registered Attorney-at-Law,

he shall deliver to the Registrar a memorandum substantially in the form set

out in the second schedule setting out an address for the service on him of the

notice under section 24 of the Law and any other legal documents required to

be served on such party. Every such memorandum shall be tendered together

with stamps to the value required to cover the cost of postage by registered

post.

li

Where a party to the partition action appears by a Registered Attorney-at-Law,

the address contained in the proxy shall be deemed to be the address of such

party.

When any notice required to be served on such party under section 24 or any

other provision of the Partition Law, is dispatched by registered post to the

registered address of the party, it shall be deemed to be a sufficient service.

Legal documents referred to therein includes all processes, pleadings, petitions,

affidavits, notices, motions, other documents, proceedings and other written

communications. The Registrar is bound to maintain a list of the registered

addresses furnished and on account of the stamps tendered to him under

section 19 and it shall be filed as a part of the case record.

In Soysa Vs. Silva (2000 (2) S.L.R. 235) the plaintiff-respondent instituted this

action for the partition of the land called Amuwatta alias Janis Naidege Watta

alias Singho Muhandiran Ralahami Wagakala Watta in extent about 2 roods.

The only dispute at the trial was relating to the identity of the corpus.

After the trial the District Judge by his judgment dated 11.9.1978 held that as

the plaintiffs were uncertain as to the land which they sought to partition, and

therefore they have failed to prove the corpus to be partitioned and as such

they were not entitled to maintain the action, the plaintiffs action was

dismissed. The plaintiff appealed against the said judgment and the Court of

Appeal by its order dated 3.2.1984 set aside the judgment and the case was

remitted for a fresh hearing.

At the 2nd trial the question that arose for decision was whether the corpus

consists of lot (A) in plan No. 467 (marked X) or whether the lots (A) and (B) in

plan No. 681 (marked Y). Lot (B) had later been divided into two lots which are

marked as (B) and (C).

After the 2nd trial, the District Judge by his judgment dated 6.12.1988 held

that the corpus consists of Lots (A) and (B) (later marked as (A), (B) and (C) in

plan No. 681(Y) and further held that the 2nd defendant had prescribed to the

said land.

Third defendant moved to set-aside the said judgment by way of revision, and,

Jayawickrama J. held that:-

lii

(i) the power given to a Superior Court by way of revision is wide enough to

give it the right to revise any order made by an original Court. Its object is the

due administration of justice and the correction of errors sometimes committed

by the Court itself in order to avoid miscarriage of justice.

(ii) on reading section 19(2) (a) it is imperative on the part of the defendant

who seeks to have a larger land than that sought to be partitioned to follow the

procedure laid down in sub-section 4,5,6 of the Partition Law. The defendant-

respondent who sought to partition a larger land than that of the plaintiff-

respondent has not followed the imperative procedure laid down in section

19(2)(g).

(iii) the mere registration of the lis-pendens alone would not entitle the 2nd

defendant-respondent to have a larger land partitioned unless he follows the

procedure laid down in section 19(2)(a)to(g).

Under Section 19(2)(g) the requirement of section 12 becomes applicable to a

defendant who seeks to have a larger land partitioned.

(iv) error in not following the provisions of section 19(1) amounts to an

illegality, thus revision lies.

ADDITION OF PARTIES

Section 69 of the Law provides that the Court may at any time before the

judgment is delivered in a partition action add a person as a party to the

action, on such terms as to payment or prepayment of costs as the Court may

order:-

(a) any person who, in the opinion of the Court, should be or should have

been made a party to the action, after issuing to such person, a notice requiring

him to make an application to be added as a party to the action on or before

the date specified by the Court and upon such application being made by such

party. Such notice must be substantially in the form set out in the second

schedule.

(b) any person who is claiming an interest in the land, applies to be added as

a party to the action.

Any person, who makes such an application for addition of himself as a party

to the action, shall file along with his application, a memorandum nominating a

liii

person to be his legal representative for the purposes of the action in the event

of his death pending the final determination of the action.

Where the right, title and interest of a party to the partition action is sold

pending the action, in execution or under any decree, the purchaser is entitled

to be substituted in place of such party to the action. Such party so substituted

shall be bound by all proceedings so far taken place up to such substitution.

Any such purchaser is also obliged to file a memorandum under section 81 of

the Law.

Where a party to a partition action derived his right, share or interests to the

subject matter of the action by a revocable deed of gift made any other person,

or an instrument which reserves to any other person the right to claim a re-

transfer of such right, share or interests within a specific period, such other

person has also a right to intervene in the action at any time before the

judgment is delivered. Such intervenient shall also comply with provisions of

section 81 of the Law by filing a memorandum.

The Court is also empowered to order to give security for costs or to prepay

costs if the Court is of the opinion that the applicant has been guilty of

unreasonable delay in presenting his claim or for other good and sufficient

reasons.

In making a determination with regard to the quantum of costs, the Court shall

take into consideration any delay on the part of the applicant, the stage at

which the action is, any expenditure caused unreasonably to the parties and

any other matter that the Court may consider relevant. Whenever such a party

fails to deposit security for costs or prepayment of costs, as directed by the

Court, the Court is empowered to reject his application.

In the case of Peiris Vs. Peiris (9 N.L.R. 231) the Court held that the Court has

power to add as parties to a partition suit, persons holding leases from some of

the co-owners of their undivided shares. It is competent for the Court, where it

decrees a sale under the Partition Ordinance, to order the interest of such

lessees to be appraised separately and the amount deducted from the proceeds

of the sale.

In the case of Bandaranaike Vs. Bandaranaike (11 N.LR. 185) after an order of

sale had been made in a partition suit under section 4 of Ordinance No. 10 of

1863, but before such sale was carried out, certain persons claiming to be

liv

entitled to shares in the land, the subject of the action, applied to intervene in

the action and the District Court refused their application. The Supreme Court

held that they were entitled to intervene and reversed the order of the District

Court.

In the case of Silva Vs. Silva (13 N.L.R. 87) full bench of the Supreme Court

held that:-

“A preliminary decree made in a partition action in accordance with the

judgment is binding on the parties to it, subject to an appeal, and the power

given by section 189 of the Civil Procedure Code to correct or modify any

clerical or arithmetical error. The Judge who made the preliminary decree or

his successor in office has no power to modify the preliminary decree, even if he

be of the opinion that the former decision was mistaken in fact or law.

But before the final decree is made, persons who were not parties to the

preliminary decree can come in and have their claims adjudicated upon, as the

preliminary decree would not bind such persons.‟

In the case of Carolis Vs. Perera (14 N.L.R. 219) the Supreme Court decided

that:-

“A party to a partition action who claims a share through a purchaser at a

Fiscal‟s sale may establish his claim, even though the Fiscal‟s conveyance in

favour of the purchaser at the Fiscal‟s sale was executed after the institution of

the action.

Even prior to the Civil Procedure Code the execution of the Fiscal‟s conveyance

was an essential ingredient of the sale of land, and until such execution the

judgment-debtor remained vested with the title.

The mere continuance in possession by a judgment-debtor of property sold in

execution against him for a period exceeding ten years after the sale by the

Fiscal, and before the issue of the Fiscal‟s conveyance, does not entitle him to

set up a title by prescription; a person cannot prescribe against himself.‟

In the case of Wijeysekere Vs. Wijeysuriya (44 N.L.R. 455) Wijeywardene J.

held, that, in a partition action, a Court should not deny to parties the right to

intervene until the final decree is entered. The granting of an application to

intervention, the Court has power to impose such terms as may appear fair and

equitable.

lv

In the case of De Zoysa Vs. Gunasekera (47 N.L.R. 439) Howard CJ. held that:-

“In an action for partition a party who appeared in a representative capacity

and not personally is entitled to intervene in his personal capacity for

interlocutory decree is entered and before the date of the final decree. The

Court can, however, put him on terms where the intervention is dubious or

belated.”

In the case of Mackeen Vs. Pulle (47 N.L.R. 515) Keuneman J. held that:-

“Section 472 of the Civil Procedure Code is applicable to proceedings under the

Partition Ordinance, and an interlocutory decree entered against the

administrator would be binding on the heirs as well. If, however, after

interlocutory decree has been entered, the heirs seek to intervene on the

ground that the administrator had fully administered the estate before the date

of action, the burden is upon them to prove that fact.”

In the case of Cynthia de Alwis Vs. Marjorie de Alwis (1997 (3) S.L.R. 113) the

District Court held that the Commissioner of National Housing, though added

as a party had failed to file a statement of claim and in the circumstances there

was no justification and provision in the Partition Act to permit an issue to be

raised as to the title and interests vested in the Commissioner.

In the Court of Appeal, F.N.D. Jayasuriya J. held that:-

1. a District Judge trying a partition action is under a sacred duty to

investigate into title on all material that is forthcoming at the commencement of

the trial. In the exercise of this sacred duty to investigate the title, a trial Judge

cannot be found fault with for being too careful in his investigation. He has

every right even to call for evidence after the parties have closed their cases.

2. though the Commissioner did not file a statement of claim the first and

second defendants have filed statement of claims pleading that certain

undivided interests in the corpus vested in the Commissioner. In the

circumstances, the trial Judge was under a duty to adopt the points of contest

raised.

3. even in a rei vindicatio action issues are not limited to pleadings. Our

Civil Procedure Code requires the defendant to file an answer but it does not

allow the Court to try the case on the parties‟ pleadings by requiring specific

issues to be framed by the provisions of section 146 of the Civil Procedure

lvi

Code, after parties are agreed, the issues may be stated by them, if not agreed

then the Court must frame them.

In the case of Gnanapandithan Vs. Balanayagam (1998(1) S.L.R. 391) the

appellants were joint executors of the last will and testament of Rasammal

Gnanapandithan. The 2nd appellant who claimed an interest in the land which

was the subject matter of the partition action between the plaintiff and his

brother the defendant, sought to intervene in the action before judgment.

This application was refused by the District Judge in breach of section 68(1) of

the Partition Law. The defendant did not file a statement of claim nor did he

appear in Court. The deeds on which title to the land in dispute was claimed by

the parties had no prior registration reference. His action was filed within 2

weeks of the execution of the deed. No satisfactory evidence of title was led.

Neither the vendors nor their predecessors in title gave evidence. On that

material the District Judge gave judgment and entered the interlocutory decree.

In appeal to the Supreme Court, G.P.S. de Silva C.J. held that:-

1. there was a total want of investigation of title. The circumstances were

strongly indicative of a collusive action. In the result, there was a miscarriage of

justice in the case, and the appellants were entitled to a revision of the

judgement of the District Judge notwithstanding delay in seeking relief.

2. the question whether delay is fatal to an application in revision depends

on the facts and circumstances of the case. Having regard to the very special

and exceptional circumstances of the case the appellants were entitled to the

exercise of the revisionary powers of the Court of Appeal.

In the case of Sirinatha Vs. Sirisena (1998 (3) S.L.R. 19) the plaintiff-appellant

instituted action to partition the corpus. The lis pendens was registered on

3.2.1993. One J. made a claim before the Surveyor stating that he was entitled

to rights by purchase on 19.10.1993; he also made an application to be added

as a party. The objection to him being added as a party was upheld.

The 2nd defendant then sought to amend his statement of claim and moved to

have J. added as a necessary party on the basis that he is a party disclosed

and as having made a claim before the Surveyor. The Trial Judge accepted the

amendment and permitted the addition of J. as the 3rd defendant,

In the appeal to the Court of Appeal, Ismail J. held that:-

lvii

1. considering the legal effect of a transfer of whatever rights that will be

allotted to the transferor by a final decree in a partition action, the transferee

cannot justifiably claim to be added as a necessary party.

The transferor is a party and his rights will be determined in the present action,

the transferee of the yet undetermined rights is not a necessary party.

2. it cannot be accepted that the transferee has a prima facie interest in the

land and that he is therefore entitled to be added as a party in terms of section

69(1 )(b) of the Partition Law as one claiming an interest in the land.

3. There is no basis for the interpretation that the phrase “interest in the

land” in section 69(l)(d) includes his contingent interest.

LIST OF DOCUMENTS AND WITNESSES

As contemplated in section 23(1) of the Law, every party to a partition action is

obliged to file a list of documents at least 30 days before the trial date. He shall

insert all documents to the list on which he relies to prove his right, share and

interests to the subject matter. The abstract of such documents also to be

inserted therein enabling the opposing parties to identify such documents. The

Court shall not allow any party to produce any documents at the trial which

are not included in the list of witnesses. But on exceptional circumstances, the

Court is empowered to allow any unlisted document to be produced subject to

any terms such as costs or prepayment of costs. These provisions do not

prevent the production of any document for cross examination or handed to

witnesses merely to refresh his memory.

If a party to a partition action desires to inspect any document specified in the

list of documents he may obtain an order from the Court to produce such

document for the inspection before a trial at the time and place to be specified

by the Court. When such an application is allowed, the party or his Registered

Attorney is entitled to inspect and obtain copies of such documents.

When such an application is allowed by the Court, the party who obtained the

order shall take steps to serve such order on the party who is directed to

produce the documents. If such party fails to comply with the Court order, to

produce the document as directed by the Court, he will be deprived of his right

to produce that document thereafter unless he can satisfy the Court that he

had sufficient cause for not complying with that order. The documents, as

lviii

defined in section 23(4) means deeds, survey plans or other writing upon which

any party claim of title is based.

It is to be noted that the section 23(1) of the Partition Law does not refer to a

list of witnesses. But it must be understood in the light of the applicable

provisions in 79 where the provisions are made to apply the Civil Procedure

Code on any matter or question of procedure which are not provided in the

Partition Law. Further the procedure in the Civil Procedure Code could be

applied only if such procedure is not inconsistent with the provisions of the

Partition Law.

As provided in section 23 of the Partition Law, section 121 of the Civil

Procedure Code requires filing a list of witnesses and documents 15 days before

the date fixed for the trial of an action. The only difference in the Partition Law

is that it requires 30 days period instead of 15 days referred to in the Civil

Procedure Code. It may be the reason that since the judgment in partition

actions binds the whole world (judgment in rem) the careful consideration is

warranted for the proper adjudication of legal right, title, interest whatsoever of

all the parties concerned.

Section 175 of the Civil Procedure Code provides that no witness shall be called

on behalf of any party unless such witness shall have been included in the list

of witnesses previously filed in Court by such party as provided by section 121.

However, the Court may in its discretion, if special circumstances appear to it

to render such a course advisable and in the interest of justice permit a witness

to be examined, although such witness may not have been included in a such

list aforesaid. Further it is not necessary to include the names of the parties as

witnesses in any such list.

Under section 175(2) of the Civil Procedure Code a document which is required

to be included in the list of documents filed in Court by a party as provided by

section 121 and which is not so included shall not be received in evidence at

the trial, unless the Court grants leave for the production of such document.

As provided in section 23 of the Partition Law, similar provisions are made in

the proviso to section 175(2) of the Civil Procedure Code to allow the production

of unlisted documents for cross-examination of the witnesses of the opposite

party or handed over to a witness merely to refresh his memory.

lix

In Hatton National Bank Ltd, Vs. Warawitage (1992 (1) S.L.R. 358) Wijeratne J.

held that, the proviso to section 175(2) of the Civil Procedure Code which lays

down that a party to an action may be called as a witness without his name

being included in the list cannot be availed of when a party is a legal person

(i.e. a limited liability company) to call any of its officers without his name or at

least his designation being included in the list of witnesses.

In the case of Girantha Vs. Maria (50 N.L.R. 519) Gratiaen J. held, that in

exercising his discretion under section 175 of the Civil Procedure Code where it

is sought to call a witness whose name was not in the list filed before the trial,

the paramount consideration for the Judge is the ascertainment of the truth

and not the desire of a litigant to be placed at an advantage by reason of some

technicality.

In the case of Mercantile Credit Ltd, Vs. Sisira Kumara (1991 (1) S.L.R. 308)

Wijeyaratne J held that, the provisions of section 121(2) and 175(2) of the Civil

Procedure Code relating to listing of documents do not apply to an inquiry

under section 86(2) to set aside a decree for default. These provisions are

applicable only to trials of actions by way of regular procedure.

In the case of Tikiri Banda Vs. Loku Menika (68 N.L.R. 342) the Court held that

a judgment entered in favour of a party by making the Judge to believe that a

witness‟s name was included in the list of witnesses and obtained to admit that

such witness‟s evidence is illegal. His evidence could not form the basis of the

judgment. .

In terms of section 175(1) of the Civil Procedure Code, a party is not entitled to

call as a witness a person who has not been listed in terms of section 121(1) of

the Civil Procedure Code. This provision requires the list of witnesses to be filed

not less than 15 days before the date fixed for trial. The proviso to section

175(1) empowers the Court to use its discretion in special circumstances where

such a course is rendered necessary, in the interests of justice, to permit a

witness to be called, whose name is not included in a list filed in compliance

with section 121(2).

In the case of Subramaniam Vs. Ceylon Paper Sacks Ltd (1993 (1) S.L.R. 253)

the plaintiffs did not indicate to the District Court the material that they

intended to adduce through the witness Mervan Peiris. No description or

lx

address has been disclosed of this witness as required by the Civil Procedure

Code. The defendant had no notice whatsoever of the nature of the evidence

intended to be adduced through this witness. Court held, that the discretion of

Court was rightly exercised in refusing to permit Mervan Peiris to be called.

In the case of Dalton Wijeyeratne Vs. Hermine Wijeyeratne (1993 (1) S.L.R. 313)

Court held that, section 120(1) of the Evidence Ordinance read with the second

proviso to section 175(1) of the Civil Procedure Code does not enable one party

to compel the other party to give evidence; and that section 175( 1) of the Code

does not go beyond conferring a discretion on the Court to permit a party to be

called as a witness despite his name being not listed as required by section 121

of the Code.

Although in a partition action all the parties have the dual capacity of plaintiff

and defendant, the general principle has its limitation and that in view of the

position taken up by the defendants, the District Judge exercised his discretion

rightly in refusing permission to the plaintiff to call the defendants as

witnesses.

In the case of Asilin Nona Vs. Wilbert Silva (1997(1) S.LR. 176) G. P.S. de

Silva, C.J. held that the section 175(1) of the Code imposes a bar against

calling of witnesses who are not listed in terms of section 121. The 1st proviso

to section 175(1) confers on the Court a discretion to permit a witness not so

listed to be called “if special circumstances appear to it to render such a course

advisable in the interest of justice.‟ The burden of satisfying the Court as to the

existence of special circumstances is on the party seeking to call such

witnesses.

In the case of Abdul Munaf Vs. Mohamed Yusuf (1997 (1) S.L.R. 373) Ismail J.

held that, the judgment and observations of Gratiaen J., in Girantha Vs. Maria

cannot help the defendant as the Court was there placing an interpretation on

the repealed section 121 which did not then specifically require the filling of a

list of witnesses 15 days before the date of the trial.

TRIAL

As provided in section 24 of the Law, after the expiry of the period fixed for the

filing of the statements of claim, and after the commission for preliminary

survey has been received, the Court shall appoint a date for the case to be

called in open Court in order to fix the date of trial. The Court shall send

lxi

notices to all parties who have, furnished registered addresses and tendered

the costs of such notices as provided by subsection 19(3) of the Law. If the

Court is satisfied that there exists reasonable cause to postpone the trial for

any latter date, it may do so in open Court. There is no necessity to issue notice

to any party on such postponement of trial unless the Court thinks that there

exists special circumstances so to do. .

On the date fixed for trial, the Court shall examine the title of each party and

shall hear and receive evidence in support thereof. The Court also shall try all

questions of law and fact arising in regard to the right, share, or interests of

each party to the action.

If a defendant fails to file a statement of claim on the due date, the trial may

proceed ex-parte as against such party in default and such defaulted party is

not entitled, without the leave of Court, to raise any contest or dispute the

claim of any other party to the action at the trial, in view of the provisions of

section 25(2) of the Law. But the Court has jurisdiction to permit a party in

default to participate in the trial after notice to the parties to the action if the

Court is satisfied that his claim is a bona fide one. The Court also may make an

appropriate order as to whether such a party shall file a statement of claim and

pay costs or prepayment of costs.

The Court is bound to follow the procedure laid down in Chapters XVII, XVIII,

XIX and XX of the Civil Procedure Code in relation to the trial to be conducted

in a partition action, so far as such provisions are not inconsistent with the

provisions of the Partition Law.

(Please refer to Chapters XVII, XVIII, XIX and XX of the “Case Law on Civil

Procedure Code” of the same author with regard to -the applicable provisions in

relation to the framing of points of contest, leading of evidence, tender of

documents etc.)

Candiah Thamotarampillai Vs. Ehamparam Somasunderam (79 (1) N.L.R. 397)

was a case where an order for pre-payment of costs was made against a

defendant in a partition action when the trial had to be postponed owing to his

illness. In default, his statement of claim was to be struck off. The order was

made under section 63(3) of the Partition Act, and ' required him to pay a sum

of Rs. 157.50 before 10.00 a.m. on the next date of trial. A sum of Rs. 140.00

was so paid but the balance Rs. 17.50 was tendered after 10.00 a.m. on the

next date of trial. The said defendant‟s statement of claim was accordingly

lxii

struck off and so also his evidence which had been partly recorded. In the

Supreme Court, Deheragoda J. held that on a failure to comply with an order

for the pre-payment of the cost made under section 63(3) of the Partition Act of

1951 the Court was not empowered to make such an order against the

defendant concerned. The consequences of such default would be that the

party aggrieved could take immediate steps to enforce that order without

waiting till the end of the case to do so.

INJUNCTIONS

Voet says that the Roman Dutch law recognizes the jurisdiction of the Court to

grant an interim injunction in a partition action (Voet 10.2.1). A co-owner is not

entitled in Law to use the land for his own use to do a new thing, if objected to

by the one or more of the other co-owners. When a co-owner attempts to do

such a thing not originally meant to be used for on the land, the Court may

consider issuing an interim injunction to prevent such an act. This power is

vested in court to ensure the maintenance of status quo.

The Court which is vested with jurisdiction to hear and conclude a partition

action therefore is properly empowered and sufficiently clothed with jurisdiction

to do everything to maintain the status quo of the subject matter of the action.

By the amendment No. 17 of 1977 made to the Partition Law, Sub Section (3)

was added to Section 67, conferring jurisdiction on the original Court to make

order to prevent any waste or damage being caused to the subject matter whilst

an appeal against the judgment or decree in that case is pending in the Court

of Appeal.

Section 67 (3) as amended reads thus…

(3) Where an appeal has been preferred against any judgment, decree or order made or entered by any court in any partition action, such court may,

on application made by way of petition and affidavit in that behalf, make such orders, pending the determination of the appeal, as may be necessary to prevent any waste, or damage to the land in respect of which such action

was instituted. Any such Order may be given effect to in the manner provided for in section 53."

In terms of Section 53 a court exercising jurisdiction in a partition action shall have full power to give effect to every order or decree made or entered

lxiii

in the action and to punish as for contempt of court any person who disobeys any such order, or obstructs or resists any person acting under

the authority of the court or exercising any power conferred on him by this Law.

The case of Siyadoris Vs. Hendrick ( 6 N.L.R. 275) was an action by a co-owner

of a land for his share of the value of the plumbago dug therein, after an

unlawful ouster of the plaintiff, is maintainable without a prayer for dissolution

of partnership. Bonser C.J. held, that the rights of co-owners of landed

property in Ceylon are governed by the Roman Dutch law, and not by the

English Common law. It is not competent for one co-owner against the will of

the other to deal with the property in a manner inconsistent with the purpose

for which the joint ownership was constituted. The law does not prohibit one

co-owner from the use and enjoyment of the property in such manner as is

natural and necessary under the circumstances.

In the case of Deerasooriya Vs. Vanderpoorten (63 N.L.R. 226) Basnayake C.J

decided that in proceedings under the Partition Act the Court is entitled to

issue an injunction in respect of movable property under section 86 of the

Courts Ordinance. Nor is the Court precluded from making an order under

Chapter L of the Civil Procedure Code in such proceedings.

In the case of Sumanawathie Vs. Mahinda (1998 (3) S.LR. 4) the plaintiff had

instituted action to partition a „paddy field‟. The defendant, while the action was

pending sought to construct a building on the field in question. The District

Court restrained him from constructing the building.

In appeal to the Court of Appeal, Weerasuriya J. held that;

“In the circumstances, the defendant as a co-owner is precluded from building

on the land which is meant primarily for cultivation of paddy without consent

of the other co-owners. The material before Court showed that the proposed

erection of the building would materially change the character of land.”

It was further held, that;

“One co-owner may restrain another by an injunction only when his co-

proprietary rights are being violated and that so long as the land is being put to

the use for which it was specifically adopted, no restraining by an injunction is

permissible. If building on a common land constitutes merely a means of

exploiting and enjoying the property in a manner which could be regarded as

lxiv

natural and ordinary having regard to such factors as the character and

location of the land, the construction of a building by one co-owner does not

require the leave and acquiescence of the others. However in circumstances

where building would constitute an unexpected and novel use of co-owned

property, consent of all other co-owners is necessary.”

It is established principle of Law that a co-owner is entitled to the use and

enjoyment of the common property in such a manner as is natural and

necessary under the circumstances. A co-owner who puts the property to such

use is not entitled to appropriate more than his lawful share. A lessee of a

common property is liable to the same extent as the co-owner from whom he

obtained the lease. VANDERLAN et al. Vs. VANDERLAN. 41 NLR 547

In NAVARATNE Vs PREMARATNE AND OTHERS 2004 3 403 (COURT OF APPEAL) issuance

of Interim injunction restraining gemming on co-owned land in a Partition action was considered. There was a gemming licence valid for six months in

favour of the defendant who did gemming on the co-owned land. The court considered the justifiability of gemming of the whole land by a co-owner and laid down that a co-owner even though he may not have the consent of his co-owners is entitled to use the common land reasonably for the common

advantage proportionate to his share for the purpose for which the land is intended. However, as gemming will exhaust a limited resource on which value of the land depends and therefore cannot be considered natural use. Gemming of the whole land by a co-owner was held to be not justifiable.

SIRISENA PERERA AND ANOTHER VS VINSON PERERA (CA) Sri Lanka Law Reports 2005 - Volume 1 , Page No – 270 deals with section 67(3) of the Partition Law No 21 of 1977. The exercise of power by Court under this section

without doubt is in the nature of Special jurisdiction. The necessary ingredients for the issuance of an injunction in a partition case in appeal read together with section 662 were discussed in the judgment. The facts were that the

partition action instituted by the plaintiff respondent was dismissed. The plaintiff appealed. Pending the appeal the plaintiff-petitioners made an application under section 67(3) of the Partition Law praying for an injunction restraining the defendant respondents from carrying on any construction work

of the subject matter on the ground that the defendant respondent had obtained the approval of the building plan contrary to law and that the defendant respondents were unlawfully changing the nature/character of the corpus. Injunction was granted. It was held that 1. Specific provision of section

67(3) empowers the court to make orders, pending appeal necessary for the purpose of preventing of waste or damage to the subject land. The court has

lxv

not considered whether the alleged construction would cause waste or damage - there is no finding that such construction would cause waste or damage to the land necessitating an order to prevent same.

2. The fact that a convenient division of the land may be affected adversely is

not a waste or damage to the land. Any other factor than the waste or damage to the land, shall not be the basis of the court exercising special jurisdiction granted to it under section 67(3).

Per Wijayaratne, J.

"Even if the defendant respondent petitioner is considered to be a co-owner of the land in extent 57 perches despite plaintiff petitioner respondent's action

being dismissed, he is entitled to build without the plaintiff petitioner-respondent's consent, vide approved building plan, if he is not shown to utilize an extent disproportionate to his share of the land." .

SETTLEMENT

Where the parties have a contest over the right, share or interest of the subject

matter in a partition action, the Court is empowered to proceed to trial on the

undisputed pedigree placed before the Court provided the Court is satisfied

that the rights of the parties are accurately established.

In the case of Kumarihamy Vs. Weeragama (43 N.L.R. 265) Heame J. and de

Kretser J. (Keuneman J. dissenting) held that, an agreement, which is entered

into in a partition action, affecting only the rights of parties inter se, and which

is expressly made subject to the Court being satisfied that all parties entitled to

interests in the land are before it and are solely entitled to it, is binding on the

parties and is not obnoxious to the Partition Ordinance.

Zacharian Vs. Fernando (43 N.L.R. 472) was a case where a partition action

was settled on the terms that the defendant should transfer his interest in the

land to the plaintiff and where the plaintiff asked the defendant to execute in

his favour a deed of transfer containing a covenant to warrant and defend title.

The Court held, that the plaintiff was not entitled to ask for a covenant to

warrant and defend title and that his refusal to accept a deed without such a

covenant amounted to a repudiation of the compromise.

In the case of Roslin Vs. Maryhamy (1994 (3) S.L.R. 262) it was held that when

an agreement is entered into, the Court has to be satisfied only as to whether

lxvi

the agreement is between all the parties having interests in the land sought to

be partitioned. In the event of such agreement, the respective shares or

interests to be given to each party is based upon the compromise that is

reached and not on an examination of title.

Where the 7th defendant had acquired interests on two deeds, on one deed an

extent of one perch and the other an extent of 17 Vi perches and was residing

in a house on a portion of the land, it is unlikely that she would have settled to

receive only 7 perches. The deed conveying 7 perches to the 7th defendant had

been suppressed and she had been made to understand she would be given

what she had claimed in her statement. The 7th defendant had been misled by

the misrepresentation and in any event the purported settlement did not bind

her. There was no entry in the record that she agreed to it.

Revision will lie to set aside a miscarriage of justice in the event of there being

in the proceedings a fundamental vice which transcends the bounds of

procedural error.

S.N. Silva J. held that:-

“The preceding examination of the facts of this case reveals that on the date of

trial the 7th defendant was not represented by her registered Attorneys-at-Law,

an instance of severe dereliction of duty by a member of a profession, legally,

morally and ethically bound to serve the client to the end of the proceedings. A

purported settlement has been contrived by the other parties, represented by

Counsel, seriously affecting the interests of the 7th defendant, whilst the trial

Judge played the role of the blind umpire. A deed in her favour more than 25

years old has been suppressed and the interests being the subject of that deed

was given to the plaintiff-respondent on the basis of intestate succession. She

was made to understand that all is well and that her interests as claimed would

be given to her. These irregularities in our view, amount to a fundamental vice

in the proceedings. A serious miscarriage of justice has been caused in the face

of which the Court should not sit idly by. It is thus a fit case to exercise the

extraordinary jurisdiction by way of revision.”

In the case of Soma Rasaputhra Vs. Nagakankanamge Jayanthi de Silva (B.L.R.

1994 Vol. V, part. II, page 10) the plaintiff had filed the action in the District

Court claiming that 78 shares belonged to one Odiris de Silva whose rights

were ultimately devolved on her. She had further averred that the 1st defendant

was entitled to l16th share. The 1st to 7th defendants filed the statement of

lxvii

claim disputing the correctness of the corpus as shown in the preliminary plan

and claiming a larger share in the land. The trial commenced on 21 points of

contest raised on behalf of the plaintiffs and the contesting defendants. The

husband of the plaintiffs gave evidence and marked several documents. The

Court adjourned for the lunch interval.

The proceedings were resumed in the afternoon and the parties stated to Court

that the „disputes‟ were all settled. The „disputes‟ in regard to the corpus,

shares, buildings, right of way were all settled and the terms of settlement were

recorded. The parties further agreed that evidence would be led on subsequent

date in terms of the settlement to prove their entitlement to the shares agreed

upon. Accordingly the trial was re-fixed for a future date.

When the trial resumed on a subsequent day the plaintiff moved to resile from

the settlement already recorded and sought the permission from the Court to

file an amended plaint. After hearing the parties the District Judge made an

order refusing the plaintiff‟s application to set aside the terms of settlement and

the application to file amended plaint. The plaintiffs moved the Court of Appeal

in revision to set aside the said order.

The Court of Appeal set aside the said order and allowed the plaintiff to

withdraw from the settlement and also to amend the plaint. The defendants

then moved to the Supreme Court against the judgment of the Court of Appeal.

In the Supreme Court, after hearing the parties held that the order of the Court

of Appeal was erroneous and accordingly the judgment of the Court of Appeal

was set aside and the order of the District Court was restored. G.P.S. de Silva

C.J. held that the parties are bound by the consent terms entered in the

District Court, and disputes in partition proceedings have been regularly

settled in our Court over the years. This practice is to be encouraged, or it is in

every way salutary and beneficial to all parties concerned provided of course a

settlement is not „forced‟ or „imposed‟ upon an unwilling parties.

Its primary value lies in the fact that it avoids protracted and expensive

litigation which may well go on for several years, much to the detriment of

parties. In this connection the illuminating words of de Kretser J. in

Kumarihamy Vs. Weeragama was cited by the Chief Justice which reads, thus;

“It seems to me that we have travelled far enough in making partition actions

which are elaborate and costly, and while that could not be helped when

emphasis was laid on the need for full investigation of the title of the parties to

lxviii

the land, it is unnecessary to make partition proceedings needlessly

burdensome and to force contention unless we have some clear provision which

takes away the right of parties to settle their disputes inter se

In the case of Anthony Appu Vs. Margret Fernando (1999 (3) S.L.R. 85) the

plaintiff had filed partition action to partition the land described in the

preliminary plan. The 3rd defendant did not file statement of claim and the case

proceeded to trial in his absence without a contest. After the conclusion of the

evidence the trial Judge entered a judgment and interlocutory decree.

Accordingly, a commission was issued to the same Surveyor who made the

preliminary plan to prepare the plan of partition. The Commissioner submitted

his final plan and report. The 3rd defendant filed a statement of objection to the

proposed scheme of partition.

When the inquiry was taken up in the absence of the plaintiff and the other

defendants, a settlement was effected with the concurrence of the Attorney-at-

Law appearing on behalf of the plaintiff, 1A and the 4th defendants. The 3rd

defendant subscribed his signature accepting the terms of the settlement.

However, a calling date was nominated to enable the other parties to signify

their acceptance to the said settlement. But, contrary to that expectation 1A

defendant refused to accept the said settlement, where upon on the application

of the Attorney-at-Law appearing for the plaintiff, the District Judge confirmed

the final plan. Thereafter, the District Judge rejected the notice of appeal and

petition of appeal lodged by the 3rd defendant against the said order. The 3rd

defendant sought to revise the said order by making an application for revision.

Weerasuriya J. set aside the said order of the District Judge and directed to

hold an inquiry relating to the objections raised by the 3rd defendant against

the scheme of partition and make an appropriate order in terms of the law. The

Court further held that the order confirming a final scheme of partition in

terms of section 35 of the Partition Law was appealable before the Act No. 19 of

1997 introduced an amendment to section 36 and brought in section 36(a)

which provided for an appeal upon the leave of the Court of Appeal first had

and obtained.

PRESCRIPTION AMONG CO-OWNERS When someone enter a land in a particular capacity, he continues in

possession in the same capacity AND his possession changes not or can BE

PUT AN END TO by secret intention UNLESS nothing short of ouster or

lxix

equivalent is proved. IF THE EVIDENCE RELATING TO PRESCRIPTION IS

SLENDER, THE LENGTH OF ONE‟S POSSESSION, IS OF NO USE TO DECIDE

PRESCRIPTION. RELATIONSHIP OF THE PARTIES SOMETIMES WOULD BE

OF MUCH IMPORTANCE TO RESOLVE DISPUTES TOUCHING UPON CLAIMS

FOR PRESCRIPTIVE TITLE. Thilakaratna Vs Bastian 21 NLR 12 Corea v. Iseris

Appu (1911) 15 N. L. R . 65].

Several important principles touching upon the law of prescription have been

succinctly laid down in the celebrated judgment in Corea Vs Iseris Appuhamy

15 NLR 65. It is thus laid down where a person enters into possession of land

in one capacity, he is presumed to continue in possession in that same

capacity. The head note of that judgment which applies to licensees with

necessary changes reads as follows….

“A co-owner's possession is in law the possession of his co-owners. It is not

possible for him to put an end to that possession by any secret intention in his

mind. Nothing short of ouster or something equivalent to ouster could bring

about that result”.

In the case of Thilakaratna Vs Bastian 21 NLR 12 it was held interalia that

where possession of immovable property originally is not adverse, and in the

event of a claim that it had later become adverse, the onus is on him who

asserts adverse possession to prove it. Then proof should be offered not only of

an intention on his part to possess adversely, but a manifestation of that

intention to the true owner against whom he sets up his possession.

In Corea v. Iseris Appu (1911) 15 N. L. R . 65].], the Privy Council stated the

law with regard to prescription among co-owners in the following terms and the

statement of law is equally applicable to a licensee as well. The relevant

passage from the judgment reads as follows..

“His possession was in law the possession of his co-owners. It was not

possible for him to put an end to that possession by any secret intention in

his mind. Nothing short of ouster or something equivalent to ouster could bring

about that result." ALSO SEE judgment in Don Lincoln Lionel Wijesinghe

Plaintiff Vs. Hettitantrige Dona Pathmawathie Mallika Abeygunawardena and

others C.A. Appeal No.1175/99(F) D.C. Mt. Lavinia Case No. 2197/P

lxx

Burden of proof

Unlike the judgments in the other cases, judgments in partition actions bind

not only the parties to the action, but also the whole world (judgments in rem).

Therefore the trial Judges in partition actions are burdened with a severe

responsibility in investigating the title of the parties.

In any event section 68 of the Law makes provisions that it is not necessary in

any proceeding under the Partition Law to adduce formal proof of execution of

any deed which, on the face of it purports to have been duly executed, unless

the genuineness of such deed is impeached by a party claiming adversely to the

party producing such deed or unless the Court requires such proof.

In the case of Peris Vs. Perera (1 N.L.R. 362) the Supreme Court held that the

Court should not regard a partition suit as one to be decided merely on issues

raised by and between the parties, and it ought not to make a decree, unless it

is perfectly satisfied that the persons in whose favour the decree is asked for

are entitled to the property sought to be partitioned. After the Court is satisfied

that the plaintiff has made out his title to the share claimed by him, it should

direct inquiries to be made whether all the parties interested in the land are

parties to the action, or have been served with notice, and on being satisfied of

these points, order a partition or sale.

If all the parties cannot be found, the Court may allot severally the shares of

the persons who have proved rights to them, and may sell the remainder of the

land, retaining the balance of the purchased money, after payment there out of

a proportionate share of the costs of the action, until the owners come forward

and prove their title to it.

In Batagama Appuhami Vs. Dingiri Menika (3 N.L.R. 129) the Court held that

to obtain a decree of partition, which is binding against all the world, the Court

should require parties to prove their title.

In the case of Mather Vs. Tamotharam Pillai (6 N.L.R. 246) the Court held that

a partition suit is not a mere proceedings interpartes, to be settled of consent,

or by the opinion of the Court upon such points as they choose to submit to it

in the shape of issues. It is a matter in which the Court must satisfy itself that

lxxi

the plaintiff has made out his title, and unless he makes out his title his suit

for partition must be dismissed.

In partition proceedings the paramount duty is cast by the Ordinance upon the

District Judge himself to ascertain who the actual owners of the land. As

collusion between the parties is always possible, and as they get their title from

the decree of the Court, which is made good and conclusive as against the

world, no loopholes should be allowed for avoiding the performance of the duty

so cast upon the Judge.

In the case of Sedohami Vs. Mahomadu Ali (7 N.L.R. 247) the Supreme Court

held that the preliminary decree in a partition suit should determine the limits

and the extent of the land sought to be partitioned or sold, with the same care

precision as it adjudicates on the individual interest of the parties to that suit.

As such a decree has been held to be one in rem binding on all persons

whomsoever, it is of the utmost importance that the extent and limits of the

common land should be adjudged in the preliminary decree as well as the

shares of the claiming co-owners.

In the case of Weerappa Chettiar Vs. Rambukpotha Kumarihamy (45 N.L.R.

332) Wijewardhane J. held that;

“In a partition action the duty is cast upon the Judge to satisfy himself that the

property to be partitioned does not belong to persons, who are not parties to

the action. With regard to the decision on this question the Court would

consider the evidence without regard to the issues.

Apart from this question, the Court has to decide the dispute that arise

between the parties as to the devolution of title. Regarding them it is a useful

practice to frame issues so that the Court may control the proceedings and the

parties may know precisely the points on which they have to lead evidence.

In Sirimalie Vs. Pinchi Ukku (60 N.L.R. 448) Sansoni J decided that the

Supreme Court has sufficient powers under the Courts Ordinance and under

the section 753 of the Civil Procedure Code to examine, by way of revision, the

legality and propriety of the interlocutory decree which has been entered in a

partition action and the regularity of the proceedings at the trial.

In the case of Cooray Vs.Wijesuriya (62 N.L.R. 158) Sinnathamby J. decided

that “Section 25 of the Partition Act imposes on the Court the obligation to

examine carefully the title of each parties to the action. Before a Court can

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accept as correct a share which is stated in a deed to belong to the vendor there

must be clear and unequivocal proof of how the vendor became entitled to the

share. Apart from proof by the production of birth, death and marriage

certificates, the relevant provisions of the Evidence Ordinance in regard to proof

of a pedigree are to be found in sections 32(5), 32(6) and 50(2).”

In Magilin Perera Vs. Abraham Perera (1986 (2) S.L.R. 208) Gunawardhane J.

held that “When a partition action is instituted the plaintiff must perforce

indicate an original owner or owners of the land. A plaintiff having to

commence at some point, such owner or owners need not necessarily be the

very first owner or owners and even if it be so claimed, such claim need not

necessarily and in every instance be correct because when such an original

owner is shown it would theoretically and actually be possible to go back to still

an earlier owner. Therefore, in actual practice it is the usual, and in my view

sensible, attitude of the Courts that it would not be reasonable to expect proof

within very high degrees of probability on questions such as those relating to

the original ownership of land. Courts by and large countenance infirmities in

this regard, if infirmities they be, in an approach which is realistic rather than

legalistic, as to do otherwise would be to put relief given by partition decrees

outside the reach of very many persons seeking to end their co-ownership.

SALE, LEASE OR MORTGAGE PENDENTE-LITE IS VOID

Section 66 of the Partition Law makes provisions that after registration of a lis

pendens in a partition action no voluntary alienation, lease or hypothecation of

any undivided share or interest of or in the land to which the action relates can

be made until the final determination of the action. Any voluntary alienation,

lease or hypothecation made or effected in contravention of the provisions of

section 66 shall be void. However in the event of the partition action being

dismissed any such voluntary alienation, lease or hypothecation shall be

deemed to be valid. Any assignment of a lease or hypothecation affected prior to

the registration of lis pendens of such partition action shall not be effected by

the provisions of this section.

In Saparamadu Vs. Saparamadu (10N.L.R. 221) pending a partition suit the

plaintiff‟s share was sold by the Fiscal, and the purchaser at such sale, who

was not made a party to the suit, sold it to a third party. The Supreme Court

held that, the sale by the purchasers to such third party was void under

section 17 of Ordinance No. 10 of 1863, notwithstanding that such purchaser

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was not a party to the suit, and that he was not entitled to maintain the action

as substituted plaintiff. The Court further held that, the Fiscal‟s purchaser may

be substituted as plaintiff and the action proceeded with.

In the case of Perera Vs. Alvis (17 N.L.R. 135) De Sampayo J. held that a

mortgage of land executed after decree for sale under the Partition Ordinance

and prior to the sale thereunder has no effect as against at the purchase at the

sale.

The provisions of the Ordinance which enact that nothing in the Ordinance

shall affect the right of any mortgagee of the land which is the subject of the

partition or sale refers to a mortgage effected prior to the commencement of the

action, for provisions expressly prohibit the mortgage of an undivided share

during the pendency of the action.

In the case of Sidambaram Chetty Vs. Perera (24 N.L.R. 214) the 1st defendant

who was entitled to an undivided share of a land mortgaged a divided portion of

the land to the plaintiff. Subsequently the 2nd defendant, who purchased 1st

defendant‟s interest at a Fiscal‟s sale pending a partition action was decreed

entitled to a divided portion (representing the undivided share of the 1st

defendant). Plaintiff brought an action on the mortgage bond

De Sampayo J. held that the mortgage did not attach to the divided portion

allotted to the 2nd defendant.

In Appuhamy Vs. Babun Appu (25 N.L.R. 370) under the scheme of partition

proposed after interlocutory decree lot A was allotted to X. Before final decree,

X transferred lot A to S. Supreme Court held that transfer was void as being

obnoxious to section 17 of the Partition Ordinance of 1863.

In the case of Khan Bhai Vs. Perera (26 N.L.R. 204) Bertram CJ. held that the

prohibition against alienation or hypothecation of undivided shares or interest

in property subject to partition action, where the Court decrees a sale,

continuous until the issue of the certificate under section 8 of the Partition

Ordinance 1863.

Persons desiring to charge or dispose their interests in a property subjected to

partition suit can also do so by expressly charging or disposing of interest to be

ultimately allotted to them in the action.

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In Abdul Hamidu Vs. Perera (26 N.L.R. 433) a co-owner mortgaged his

undivided share of a land, which was subsequently sold in execution against

him and bought by a 3rd party, who intervened and was allotted the share in a

partition action to which neither the mortgagor nor mortgagee was a party. The

Supreme Court held that, it was not necessary for the mortgagee to have

intervened in the partition action to preserve his rights, and that under section

12 of the Partition Ordinance of 1863 the mortgage attached to the divided

portion allotted to the purchaser in the execution.

In Fernando Vs. Atukorale (28 N.LR292) after interlocutory decree had been

entered in a partition action a party had sold “the shares of the premises which

will be decreed to me in the scheme of partition” to the second defendant. After

final decree had been entered, the divided portion of the land which had been

allotted to the party in question was seized in execution of a decree against him

obtained by the plaintiff. The 2nd defendant thereupon claimed the property

and his claim was upheld.

In an action filed under section. 247 of the Civil Procedure Code the Supreme

Court held that the deed of transfer, pending the action, did not convey any

interest in the land to the second defendant and amounted only to an

agreement to sell; and that the property was executable in satisfaction of the

plaintiff‟s decree.

In Rajapakshe Vs. Dassanayake (29 N.L.R. 509) a deed was executed, pending

a partition action for the conveyance of property described in the following

terms;

“All that undivided part of the soil of the land called „Kuda Welikadawatta‟ being

all the interests the above named vendors were decreed entitled in the

preliminary decree, entered in the partition case, or whatever lot or interests

the vendor will be allowed in the final decree in the above named partition

case”.

And the deed contained a covenant to execute any further deed or act for more

effectually assuring the premises to the vendee.

Dalton J. held that the deed was not obnoxious to the provisions of section. 17

of the Partition Ordinance of 1863.

In Salee Vs. Natchia(39 N.L.R. 259) the interests in a land in respect of which a

partition action was pending, were transferred with the following terms:

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“We do hereby sell and transfer all that right and title described in the schedule

belonging to us or the shares of the said property to be awarded by the decision

arranged in partition case No. 5303 now pending or the shares of the amount

that will be realized by the sale of the said property.”

The Supreme Court held that the transfer was not obnoxious to section 17 of

the Partition Ordinance of 1863.

In the case of Gunaratne Vs. Perera (44 N.L.R. 86) the Court held that where

the plaint in a mortgage action has been registered, the registration of the

decree is unnecessary and the purchaser at a subsequent partition sale, which

was held between the sale in execution of the mortgage decree and the Fiscal‟s

transfer, cannot claim priority by virtue of the registration of his certificate of

sale before the Fiscal‟s transfer. Section 12 of the Partition Ordinance of 1863

continues to protect the rights of the mortgagee until he has made them

effective according to law.

In the case of Perera Vs. Attale (45 N.L.R. 210) the Supreme Court held that the

sale of an undivided share by one of the owners pending the action was not

obnoxious to section 17 of the Partition Ordinance of 1863.

In Manchenayake Vs. Perera (46 N.L.R. 457) the Court held that, where a

conveyance executed after the institution of the partition action and before the

entering of the final decree, purporting to “sell, assign, transfer and set over” to

the vendee “the interests to which the said vendor may be declared entitled to

in the final decree to be entered into in the said case from and out of all that

land” is valid and not obnoxious to section 17 of the Partition Ordinance of

1863. It passes an immediate interest in the property and is not merely an

agreement to convey in the future.

In Abeysuriya Vs. Gunawardene (47 N.L.R. 397) the Supreme Court held that

the agreement did not convey an immediate interest and could not be given

effect to in the interlocutory decree entered in the case, where pending an

action for the partition of a land one of the defendants executed an agreement

which provided that he would within a month of the entering of the final decree

convey the undivided portion that would be allotted to him under that decree.

In Thidoris Perera Vs. Eliza Nona (50 N.L.R. 176) by an agreement duly

registered pending a partition action the 1st and 2nd defendants agreed to sell

to the plaintiff within three months of the final decree, the divided lot that

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would be allotted to them in the final decree. They however sold this lot to the

third defendant. Plaintiff filed this action for specific performance of the

agreement. The Supreme Court held that the agreement was an existing

contract within the meaning of section 93 of the Trust Ordinance and specific

performance could be enforced.

In Punchimahatmaya Vs. Medagama (51 N.L.R. 276) the plaintiff and her son

by “PI” transferred an undivided share of land to the 1st and 2nd defendants.

“PI” reserved a right for repurchase and was duly registered. First and second

defendants brought an action for partition of the land and were in the final

decree allotted a specific lot in lieu of their undivided shares. By 3D1 they sold

this lot to the 3rd defendant, a brother of the 1st defendant. The Supreme

Court held that the 3rd defendant held the lots subject to the condition for re-

transfer.

In the case of Sirisoma Vs. Samelis Apuhamy (51 N.LR. 337) Gratiaen J. held

as follows:

“Section 17 of the Partition Ordinance does not prohibit the alienation or

hypothecation, pending partition proceedings, of an interest to which a co-

owner may ultimately become entitled by virtue of the decree in the pending

action.

Where an instrument is executed, pending partition proceedings, in respect of

an interest to which the grantor may ultimately become entitled upon the

decree, the question whether it should be construed as an actual alienation or

hypothecation of such contingent interest or merely as an agreement to alienate

or hypothecate such interest (if and when acquired) must be decided in

accordance with the ordinary rules governing the interpretation of written

instruments.

If such instrument is in effect only an agreement to alienate or hypothecate a

future interest, if and when acquired, no rights of ownership or hypothecary

rights (as the case may be) pass to the grantee upon the acquisition of that

interest by the grantor unless and until the agreement has been duly

implemented; if, without implementing this agreement, the grantor conveys to a

3rd party the rights which he has acquired under the decree, the competing

claims of that 3rd party and of the grantee must be determined with reference

to other legal principles such as the application of section 93 of the Trusts

Ordinance.

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If the instrument is in effect a present alienation or hypothecation of a

contingent interest, the right of ownership (or the hypothecary rights) vest in

the grantee automatically upon the acquisition of that interest by the grantor;

and no further instrument of conveyance or mortgage requires to be executed

for the purpose; the execution of “ a deed of further assurance” confirming the

result which has already taken place may in certain cases be desirable but it is

not essential in such a case.

The provisions of section 9 of the Partition Ordinance do not invalidate a

transaction whereby an interest (which is not presently vested in the grantor

and which could only become vested in him, if at all, upon the passing of a final

decree for partition) is intended to pass to the grantee upon its acquisition.

Appuhamy Vs. BabunAppu (25 N.L.R. 370) and Fernando Vs. Atukorale ( 28

N.L.R. 292) overruled.

In Seelawathie Perera Vs. Don Peter (61 N.L.R. 109) Pulle J. held that where a

party who has been allotted a divided portion in the final decree of a partition

action, transfers that portion during the pendency of an appeal against the

final decree, there is nothing in section 17 of the Partition Ordinance to render

the transfer void.

In the case of Sillie Fernando Vs. Silman Fernando (64 N.L.R. 404) the Supreme

Court held that where prior to the entering of the interlocutory decree in a

partition action, a party transfers by sale or donation whatever will be allotted

to him by the final decree, the lot in severalty finally allotted to the transferor or

those representing him, will automatically pass and vest in the transferee,

without any further conveyance by the transferor or his representatives.

In Herath Vs. Aslyn Nona (65 N.L.R. 570) pending a partition action, after

interlocutory decree was entered one of the co-owners executed a deed of sale.

The description of the corpus conveyed was not the same as the subject matter

of the partition action but a description of the corpus which the vendor would

receive in the final decree. There was also an erroneous assumption that the

final decree had already been entered. The Supreme Court held that the sale

was not obnoxious to the provisions of the Partition Act.

In Karunaratne Vs. Perera (67 N.L.R. 529) Sansoni C.J. held that where

pending a partition action, a co-owner gifts to certain persons the shares to

which he will be declared entitled in the action, the interests which are allotted

lxxviii

in that action to the donor pass automatically to the donees when the final

decree is entered. It is not necessary that the interests which the donees

obtained on the deed of gift should be expressly conserved to them in the final

decree, even though they intervened in the action.

In the case of Jayatillake Vs. Somadasa (70 N.L.R. 25) H.N.G. Fernando C.J.

held that the section 67 of the Partition Act has not altered the position which

prevailed under the former Partition Ordinance that the prohibition against the

alienation or hypothecation of an undivided share or interest pending a

partition action does not prevent a party from disposing, during the pendency

of the action of the interest that will be ultimately allotted him in the final

decree.

An interest which vests only upon entry of the final decree is not contemplated

in the term “encumbrance” in section 48 of the Partition Act. Accordingly,

where after interlocutory decree has been entered in a pending partition action,

and before the final decree a party mortgages the interest that will be allotted

him under the final decree the mortgagee will be entitled to sue on the

mortgage bond after the final decree is entered, even if the interest mortgaged is

not conserved in the final decree. In such a case it cannot be contented that the

final decree is free from the encumbrance of the mortgage.

Haniffa Vs. Abdul Wahab (78 N.L.R.40) was a case where an undivided share of

a land is mortgaged prior to the institution of the partition action but the

interests under the mortgage bond are assigned after the institution of the

partition action.

The Supreme Court held that the assignment is valid and it is not a voluntary

alienation of any interest of or in the land; and section 67 of the Partition Act

has no application.

In Goonarathne Vs. Goonarathne (77 N.L.R. 271) the partition action was

instituted in July 1963 by „A‟. The defendants were „B‟ and “C”, who were the

brother and father respectively of „A‟. During the pendency of the action, „C‟

instituted the action No. 1035 against his sons „A‟ and „B‟ claiming that a

donation of land executed by him in favour of „A‟ and „B‟ in January 1952 was

null and void on the ground of the son‟s ingratitude and that he be declared

entitled to the land, which was the same corpus as that described in the

present action. The action brought by „C‟ was settled on the date of trial and

consent decree was entered according to which the deed of gift remained

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unannulled. But „C‟ was declared entitled to the life interest over the corpus.

Supreme Court held that the settlement „of consent‟ in action No. 1035 was not

tantamount to a voluntary alienation within the meaning of section 67 of the

Partition Act. Furthermore, by reason of the life interest given to „C‟ by the

consent decree, the plaintiff „A‟ in the present action had only the bare

dominium of the property without any right to the usufruct and, therefore, was

not entitled to institute an action for partition.

LEASE OR MORTGAGE OF UNDIVIDED SHARES

In terms of section 50 (1) of the Partition Law if in an interlocutory decree for

partition any undivided share of the land constituting the subject matter of the

partition action in which such decree is entered is declared to be subject to a

mortgage or lease, the rights of the mortgagee or of the purchaser of the

mortgaged share under a mortgage decree, or of the lessee, shall -

(a) where the partition is otherwise than in accordance with an order made

under section 26(4), be limited to the share allotted in such interlocutory decree

to the mortgagor or lessor ; and

(b) where the partition is in accordance with an order made under section

26(4) be limited to so much of the extent of the land and of any owelty or

compensation allotted in the partition action to the mortgagor or lessor as the

Court shall determine

Sub section 2 provides that any undivided share of the land constituting the

subject matter of the partition action in which the interlocutory decree is

entered is declared to be subject to a mortgage or lease, the rights of the

mortgagee or of the purchaser of the mortgaged share under a mortgaged

decree or of the lessee, shall be limited to the mortgagor‟s or lessor‟s share of

the net proceeds of the sale of the land.

Section 50(3) makes provisions that if any interlocutory decree for partition or

sale of any undivided share is declared subject to a usufruct, life interest, trust,

right of revocation or right of re-transfer, the right of usufructuary, life interest

holder, beneficiary or of the person entitled to a right of revocation or of re-

transfer shall be limited -

(a) in the case of partition otherwise than in accordance with section 26(4) to

the divided lot or lots allotted in respect of such undivided share ; and

lxxx

(b) in the case of partition in accordance with section 26(4) to so much of the

extent of land and of any owelty or compensation allotted in respect of such

undivided share ; and

(c) in the case of a sale, to the net share of the proceeds of sale, in respect of

such undivided share.

In the case of Vaz Vs. Haniffa (49 N.L.R. 286) Supreme Court held that a co-

owner may give a lease of his undivided share in a land but he has no right to

lease anything more than his share. The rights of a co-owner to deal with the

undivided property was considered fully in the judgment in Vanderlan Vs.

Vanderlan (41 N.L.R. 547). In that it was held that the right of a co-owner to

enter into a lease in regard to the whole property is not one of the things a co-

owner may do. In the case of Thamboo Vs. Annammah (36 N.L.R. 330) it was

laid down that a co-owner was not entitled to grant a servitude over even a

portion of a common land without the concurrence of the other co-owners.

COMPENSATION AND OWELTY

In terms of section 34 where a payment has to be made to or by any party to a

partition action, under any scheme of partition prepared by a surveyor, in

respect of compensation for improvements to the land or owelty, the amount of

such payment shall, in the first instance, be assessed by the surveyor and shall

be finally determined by the Court.

As contemplated in section 34(2) of the Partition Law, the amount determined

by the Court, as compensation for improvements or as owelty shall, from the

date on which final decree is entered, be a charge on the portion, of the land or

the extent of land finally allotted to the party made liable for the payment of

such compensation or owelty, as the case may be.

In Paulis Singho Vs. William Singho (64 N.L.R. 405) the Supreme Court held

that under our law there can be no ownership of a house apart from the land

on which it stands. Further the court considered the judgment of Van Wezel Vs.

Van Wezel (1924 A.D. 417). That being so a co-owner cannot claim a

declaration that he is the owner of a house standing on co-owned land to the

exclusion of all others, for that would amount to a declaration that he is the

exclusive owner of the land on which the house stands. A building on common

property accedes to the soil and becomes part of the common property quid

quid inaedificatur solo, solo cedit. The right of a builder is limited to a claim for

lxxxi

compensation which can be determined in an action for partition. The cases of

De Silva Vs. Siyadoris (14 N.L.R. 268), Sopihamy Vs. Dias (50 N.L.R.284) and

Charles Vs. Juse Appu (60 N.L.R. 474) were followed.

In the case of Samarakoon Vs. Gunawardene (67 N.L.R. 110) it was held that a

party to a partition action to whom, according to the interlocutory decree

entered in the case, compensation is due in respect of improvements is entitled

to remain in possession of such improvements until he is compensated.

Accordingly if he is dispossessed of them by a co-owner before final decree is

entered, he is entitled, in a separate action, to claim damages for the entirety

until he is resorted to possession, or until final decree is entered, which ever

event takes place earlier.

In Burah Vs. Premadasa (76 N.L.R. 127) Weeramanthry J. held that where in

an interlocutory decree entered in a partition action, a co-owner is declared

entitled to compensation in respect of improvements affected by him to the

common land, he has the right to remain in possession until the compensation

due to him is paid. Hence there can be no question of mesne profits claimable

against him by the other co-owners for the period of his possession before or

after the interlocutory decree.

PARTITION OF A LAND BELONGING TO A PARTNERSHIP

In terms of section 55 of the Partition Law a co-owner shall not be entitled to

institute a partition action in respect of a land if there exists a valid deed of

partnership which binds such co-owner to cultivate that land or raise crops or

produce thereon for the purpose of selling such crops or produce or which is for

the purpose of carrying on any trade manufacture or occupation relating to, or

connected with the joint ownership of that land, and if any of the terms,

conditions or covenants of that deed of partnership will be avoided, infringed or

violated by a partition or sale of the land. In any event when there are express

provisions in the deed of partnership which reserves the right to institute a

partition action the above provisions will not be applicable.

FINAL DECREE OF A PARTITION ACTION

In terms of section 36(1) on the date fixed for consideration of scheme of

partition the Court may after summary inquiry confirm with or without

modification the scheme of partition proposed by the surveyor and enter final

decree of partition accordingly or otherwise order the sale of any lot in

lxxxii

accordance with the provisions of the Partition Law, at the appraised value of

such lot given by the surveyor or under section 32, where the Commissioner

has reported to Court that extent of such lot is less than the minimum extent

required by written law relating to the sub division of land for development

purposes and shall enter final decree of partition subject to such alterations as

may be rendered necessary by reason of order sale.

Prior to the amendment Act No. 17 of 1997 a person who was dissatisfied with

a final decree had the right of appeal directly to the Court of Appeal. But after

the introduction of said amendment Act any person dissatisfied with an order

of the Court made under section 36 may prefer an appeal against such order to

the Court of Appeal with the leave of the Court of Appeal first had and

obtained.

In the case of Sanchi Appu Vs. Marthelis (17 N.L.R. 297) the Supreme Court

held that, in an action for partition the Court has ascertained the co-owners of

the land sought to be partitioned and their respective rights, shares and

interests, there was no objections to the parties agreeing as to the different

portions of the land to be allotted to them respectively by the final decree and

having their agreement embodied in the interlocutory decree, but what the

parties so agree to can have no force other than as a mere direction to the

commissioner to be appointed.

In Ibrahim Vs. Beebee (19 N.L.R. 289) the Supreme Court held that,* it is

necessary for the proper constitution of an appeal, that all the parties to an

action who may be prejudicially affected by the result of the appeal should be

made parties, and unless they are, the petition of appeal should be rejected.

Notice of the appeal must be given to the respondents. An appeal defective

owing to non-joinder of necessary respondents can be remedied in a proper

case by an order of Court under section 770 of the Civil Procedure Code,

directing such parties to be added or noticed.

Wood Renton C.J. and De Sampayo J. further held that, Supreme Court has no

power to set aside a final decree in a partition suit, acting in revision on the

ground that a person who had a share in the land was not made a party to the

partition proceedings and was thus deprived of share.

In the case of Fernando Vs. Shewakram (20 N.L.R. 27) De Sampayo J. held

that, a decree in a partition action entered without investigation into title as

lxxxiii

required by the Partition Ordinance, but upon mere consent of parties, does not

have a conclusive effect as a decree under the Ordinance.

In Wickramarathne Vs. Wickramarathne (21 N.L.R. 149) De Sampayo J. held

that the question whether an actual partition or a sale should be ordered

should be gone into and determined by the Court as part of the proceedings

preliminary to the interlocutory decree, which should, when entered, definitely

order a partition or a sale, as the case may be.

In the case of Tilakarathne Vs. De Silva (49 N.L.R. 25) Soertsz S.P.J. held that,

where in an interlocutory decree in a partition action there is an express

reservation of a fidei commissum which however is omitted in the final decree,

the fidei commissum still attaches to the property and the purchaser of a

divided block takes it subject to the fidei commissum. In such a case the

question of notice does not arise.

In Rajapakse Vs. Hendrick Singho (61 N.L.R. 32) Basnayake C.J. held that if

evidence which was in the possession of the parties at the time of the trial or by

proper diligence might have been obtained, is either not produced or has not

been procured, and the case is decided adversely to the side to which the

evidence was available, no opportunity for producing that evidence will be given

by an appellate Court by granting a retrial.

FINALITY OF INTERLOCUTORY AND FINAL DECREES OF PARTITION

ACTIONS

Section 48(1) of the Partition Law makes provisions that subject to the

subsection (5) of the said section, the interlocutory decree entered under

section 26 and the final decree of partition entered under section 36 shall,

subject to the decision on any appeal which may be preferred therefrom, and in

the case of an interlocutory decree, subject also to the provisions of subsection

(4) of this section, be good and sufficient evidence of the title of any person as

to any right, share or interest awarded therein to him and be final and

conclusive for all purposes against all persons whomsoever, whatever right, title

or interest they have, or claim to have, to or in the land to which such decree

relates and notwithstanding any omission or defect of procedure or on the proof

of title adduced before the Court or the fact all persons concerned are not

parties to the partition action and the right, share or interest awarded by any

such decree shall be free from all encumbrances whatsoever other than those

specified in that decree.

lxxxiv

“Omission or defect of procedure‟ means an omission or failure:-

(a) to serve summons on any party; or

(b) to substitute the heirs or legal representatives of a party who dies

pending the action or to appoint a person to represent the estate of the

deceased party for the purpose of the action; or

(c) to appoint a guardian ad litem of a party who is a minor or a person of

unsound mind.

“Encumbrance” means any mortgage, lease, usufruct, servitude, life interest,

trust or any interest whatsoever, howsoever arising except a constructive or

charitable trust, a lease at will or for a period not exceeding one month.

In terms of section 48(2), where in pursuance of the interlocutory decree a land

or any lot thereof is sold, the certificate of sale entered in favour of the

purchaser shall be conclusive evidence of the purchaser‟s title to the land or lot

as at the date of the confirmation of sale free from all encumbrances

whatsoever except any servitude which is expressly specified in such

interlocutory decree and a lease at will or for a period not exceeding one month.

In terms of section 48(3) of the Partition Law section 44 of the Evidence

Ordinance has no application to the partition decrees.

In the revision application in Fernando Vs. Fernando (9 N.L.R. 241) made

against the above judgment,- the Supreme Court while affirming it further,

held, that by virtue of section 9 of Ordinance No. 10 of 1863, a decree for

partition is binding on all persons including minors whether parties or not, and

the only remedy open to any one who is aggrieved by such a decree is the

remedy indicated in the proviso to that section, viz., an action for damages. -

In the case of Catherinahami Vs. Babahamy (11 N.L.R. 20) the Supreme Court

held that, the decree in a partition suit which is conclusive under section 9 of

the Partition Ordinance No.10 of 1863, is the final decree allotting the shares in

severally and in the case of a sale, where a sale is ordered in lieu of a partition,

it is the confirmation and completion of the sale by the issue of the certificate of

Court under section 8 of the Ordinance.

As it was held in Silva Vs. Silva (13 N.L.R. 87) [FULL BENCH] a preliminary

decree made in a partition action in accordance with the judgment is binding

on the parties to it, subject to an appeal, and the power given by section 189,

lxxxv

Civil Procedure Code to correct or modify any clerical or arithmetical error. The

Judge who made the preliminary decree or his successor in office has no power

to modify the preliminary decree; even if he be of opinion that the former

decision was mistaken in fact or law. But therefore the final decree is made,

persons who were not parties to the preliminary decree can come in and have

their claims adjudicated upon, as the preliminary decree would not bind such

persons.

In Silva Vs. Silva (15 N.L.R. 146) full bench of the Supreme Court held that,

where there has been an interlocutory decree for partition, a Court of first

instance has no power to set it aside and order a sale on the ground that a

satisfactory partition is impracticable. An interlocutory decree within the

meaning of section 207 and can only be modified in accordance with the

provisions of section 189 of the Civil Procedure Core.

In the case of Natchia Vs. Natchia (15 N.L.R. 319) Lascelles C.J. held that there

is nothing in section lg9 the Civil Procedure Code which limits the time within

which a decree can be rectified.

In Bernard Vs. Fernando (16 N.L.R. 438) Supreme Court held that the partition

decrees are conclusive by their own inherent virtue and do not depend for their

final validity upon everything which the parties may or may not afterwards do.

They are not like other decrees affecting land, merely declaratory of the existing

rights of the parties inter se: they create a new title in the parties absolutely

good against all other persons whomsoever.

In the case of Abdul Cafoor Vs. Pattumuttu (17 N.L.R. 173) „A‟ being allotted a

certain portion of land in a decree in a partition suit, conveyed that portion to

„B‟ and the decree is subsequently varied and „A‟ was allotted another portion in

lieu of the portion conveyed by him. Thereafter the plaintiff brought this action

to have the relevant deed rectified. The Supreme Court held that the plaintiff

cannot maintain this action for rectification of the deed of conveyance.

Fernando Vs. Marsal Appu (23 N.L.R. 370) was an action for declaration of title

the defendants claimed under a partition decree. The plaintiff impeached it on

the ground that it was obtained by fraud and collusion. In the Supreme Court

Ennis J. held that, under section 9 of the Partition Ordinance the plaintiff was

bound by the decree.

It was further held as follows:

lxxxvi

“I have not considered it necessary to go into the question as to whether in

exceptional circumstances, where the property is still in the sole possession of

the parties whose fraud is set up the Court could not on proof of fraud take

away the property from them.”

In Jayasekera Vs. Perera (26 N.L.R. 198) the Court held that where the land

referred to in the plaint in a partition action and the land in respect of which

the parties proved their title

and obtained an interlocutory decree was not the land depicted in the survey

land referred to in the final decree, the final decree cannot be regarded as a

decree “given as hereinbefore provided” in section 9 of the Partition Ordinance

1863, and does not bind any person except parties to that decree. The decision

of the Jayewardene Vs. Weeresekere (1917-4 C.W.R. 406) was followed.

In Paulusz Vs. Perera (34 N.L.R. 438) District Court dismissed a partition

action upon a misconception regarding the documents filed in the case. After

the order of dismissal it was pointed out to the Judge that the documents in

question had been given to the clerk in charge of the record, who had omitted

to send them up. After a consideration of the documents the Judge set aside

the order of dismissal entered earlier and set down the case for inquiry. The

Supreme Court held that the District Court had no power to set aside the order

of dismissal.

In Umma Sheefa Vs. Colombo Municipal Council (36 N.L.R. 38) Garvin J. held

that the conclusive character of a judgment entered in accordance with the

provisions of the Partition Ordinance is sufficient to wipe out the effect of the

vesting order made under section 146 of the Municipal Councils Ordinance

No.6 of 1910.

The investigation into title which is an essential requirement compliance with

which is one of the conditions upon which a decree in a partition case is

accorded the effect of a judgment in rem is an investigation made by Court with

the object of determining whether the title of the parties claiming to be owners

of the land has been strictly proved.

Where in a partition case there were admissions and agreements in respect of

the rights of parties inter se but no evidence that they or any of them were

entitled to the premises or to any share thereof at the dates material to the

action. There was no proper investigation into title which would give the decree

lxxxvii

entered thereafter the conclusive effect given to it by section 9 of the Partition

Ordinance.

In the case of Don David Vs. Don Simon (36 N.L.R. 54) the Supreme Court held

that where in a partition action the defendant on service of summons was

absent on the day appointed for his appearance, he is not entitled to receive

notice of the day of trial. In such circumstances the Court is required to

proceed to hear the evidence and investigate the title of the respective parties in

so far as may be practicable by an ex parte proceeding.

In Muthumenika Vs. Appuhamy (50 N.L.R. 162) Supreme Court held that

failure to notice a party disclosed in the surveyor‟s report does not destroy the

conclusive effect of a final decree in a partition action.

It is the duty of the plaintiff to see that the necessary parties are before the

Court. Where therefore, the plaintiff knew that there was an intervenient

disclosed in the surveyor‟s report, his failure to make such intervenient a party

amounts to such a breach of duty as would give rise to a claim for damages

under section 9 of the Partition Ordinance.

In the case of Dharmadasa Vs. Meraya (50 N.L.R. 197) Supreme Court held

that the partition action proceeds on oral as well as documentary evidence and

the failure to notice the reservation of a life interest in a deed is an accidental

slip or omission which gives the Court jurisdiction to amend the decree under

section 189 of the Civil Procedure Code. Where a decree is so amended with

notice to the parties it is res judicata and cannot be attacked in a collateral

action.

Hendrick Vs. Podinona (57 N.L.R. 494) was a partition action where the

appellant, who was not mentioned as a defendant in the plaint, was ordered by

Court to be made a party. His name thereafter appeared as one of the

defendants and he took part in the proceedings between interlocutory decree

and final decree. He admitted that the share allotted to him in the interlocutory

decree was correct.

In the Supreme Court it was held that the failure to give the appellant notice of

the action and or to call upon him to file a statement of claim was not an

irregularity that could entitle him to challenge the validity of the interlocutory

decree. He was therefore bound by the decree.

lxxxviii

In Mohamedaly Adamjee Vs. HadadSadeen (58 N.L.R. 217) the Privy Council

held that a decree entered under section 8 or section 9 of Partition Ordinance

No. 10 of 1863 is conclusive against all persons whomsoever, and a person

owning an interest in the land partitioned whose title even by fraudulent

collusion between the parties had been concealed from the Court in the

partition proceedings is not entitled on that ground to have the decree set

aside, his only remedy being an action for damages (even though the property

is still in the sole possession of the parties whose fraud is set up.)

Although a partition decree entered without any investigation of title does not

have the conclusive effect provided by section 9 of the Partition Ordinance, a

decree entered after a defective or inadequate investigation of title is conclusive,

as long as it has not been set aside on an appeal in the same action. Once it

appears that the Court did hold an investigation into title, although the

investigation was not sufficiently exhaustive to prevent the fraud which was

perpetrated by the parties in regard to the title of a person who had not been

made a party to the action, any defect in the method of investigation would not

vitiate the decree. The person so defrauded is not entitled to seek by separate

action to set aside the decree or in a separate action to challenge its conclusive

effect. The fact that the lack of proper investigation of title may be sufficient for

the Appeal Court acting in the same case to set aside a decree does not

detracted from the conclusive effect of section 9 of the Partition Ordinance

when the decree is being considered in a separate case.

Obiter: On an appeal in a partition action if it appears to the Court of Appeal

that the investigation of title has been defective it should set aside the decree

and make an order for proper investigation. When investigating title the

following matters should be attended to by the Court in the generality of cases:

“The trial Judge should insist upon the production of the relevant extracts from

the registers kept under the Land Registration Ordinance (Cap. 101). They may

reveal registered instruments suggesting the possible existence of title in

persons other than the parties before the Court. The names of all such persons

should be ascertained by due investigation and they should be given notice of

the proceedings. Whether they appear in Court or not, the effect of such

instruments upon the title set up by the parties before the Court should be

examined. The trial Judge should also investigate in sufficient detail the

question of possession. He should have before him sworn testimony specifying

by name the persons actually in possession and satisfy himself that they are

lxxxix

some or all of the parties before the Court that they are in possession under

some or all of such parties. He should in case of doubt cause the parties in

possession to be summoned for the purposes of his investigation. He should

also ask for the production of the originals or duplicates of receipts for rates

and reconcile the material furnished by the receipts with the evidence given...

If it appears to the Supreme Court when hearing an appeal in a partition case,

that investigation of title has been inadequate, it should, even though no party

before it has raised the point, set aside the decree acting under its power of

revision.

As it was held in Noris Vs. Charles (63 N.L.R. 501) where final decree has been

entered in terms of section 36 of the Partition Act No.16 of 1951, it is not open

to a new party to intervene by having the decree set aside on the ground that lis

pendens was not registered in the correct folio. The provisions of subsection 3

of the section 48 do not enable such intervention.

Victor Perera Vs. Don Jinadasa (65 N.L.R. 451) was a case where in partition

suit No.7059, „R‟ who was added as a party did not take any action herself in

respect of the suit and did not participate at the trial. After interlocutory decree

was entered she attempted to intervene in the suit in order to obtain either a

dismissal of the suit or an exclusion of lots 1 and 2 in the corpus. Her attempt

proved unsuccessful. Thereafter she transferred her rights in lots 1 and 2 to

V.R Relying upon this deed of transfer V.R instituted the present action

claiming a declaration of title to lots 1 and 2 citing as defendants all the

persons who had been allotted shares in the interlocutory decree which dealt

with lots 1, 2 and 3 as one corpus. He claimed that inasmuch as the partition

action had not been duly registered as a lis pendens, his right to a declaration

of his title was unaffected by the interlocutory decree.

In the Supreme Court T.S.Femando J. held that, under section 48(3) of the

Partition Act the trial Judge was obliged to address his mind to the question of

the due registration of the partition action as a lis pendens.

In the case of Leelawathie Vs. Weeraman (68 N.L.R. 313) the Supreme Court

held that the interlocutory decree entered in the action is liable to be set aside

at the instance of an added defendant, if the Court, instead of issuing

summons on him when he was added, caused only a notice to be served on

xc

him. Section 22 provides for notice to be issued only on a person who is not a

party, while section 12 and 13 require summons to be issued on defendants

and this rule would apply to added defendants also.

As it was decided in Mariam Beebee Vs. Seyed Mohamed (68 N.L.R. 36) section

48(1) of the Partition Act does not preclude the Supreme Court from exercising

its power of revision in an appropriate case in respect of an interlocutory or

final decree entered in a partition action. The power of revision is an

extraordinary power which is quite independent of and distinct from the

appellate jurisdiction of the Supreme Court.

A partition decree which allots a share to a party, but which is entered without

knowledge of the death of that party is a nullity. It is open to another party to

the action to move the Supreme Court in revision to set aside that decree (even

though it may have been affirmed in appeal) and to remit the case to the lower

Court in order to that proper steps may be taken in the action.

An appeal filed by the 8th defendant against the interlocutory decree entered in

a partition action abated because of failure to comply with certain essential

provisions of the law. Pending that appeal, the 8th defendant came to know

that the 7th defendant, who was allotted a share in the interlocutory decree,

had died prior to the date of the decree. She thereupon filed papers in revision

to have all the proceedings held after the death of the 7th defendant set aside.

The fact of the 7th defendant‟s death was either not known by any of the

parties or not disclosed to the Court before the interlocutory decree was

entered, and no steps had been taken under section 82 of the Partition Act to

substitute any person to represent the deceased‟s estate.

Further the Supreme Court held, that application in revision should be granted

and that all the proceedings had in the partition action since the death of the

7th defendant should be set aside. The case should therefore be remitted to the

District Court for proper proceedings to be taken.

In Pieris Vs. Abeysinghe (69N.L.R. 275) H.N.G. Fernando J. held that, where a

partition decree assigns certain lots to a number of persons as a group who

derive their title from the source, without defining the interests of the members

of that group inter se, a subsequent partition action may be instituted for the

purpose of partitioning the land comprising the lots which were assigned to

that group. In such a case, it cannot be contended that the earlier partition

decree conveyed equal shares to the persons who formed the group. The finality

xci

of a partition decree does not touch matters which the decree does not in terms

purport to define with finality.

In the case of Odiris Vs. Andrayas (72 N.L.R. 110) H.N.G. Fernando C.J. held

that the interest of a “tenant-cultivator” under the Paddy Lands Act is an

“encumbrance” within the meaning of section 48 of the Partition Act and

therefore, more properly be specified and conserved in a partition decree

entered in terms of that section.

Pathuma Natchiya Vs. Haniffa (77 N.L.R. 358) was a case where in an action for

declaration of title to a land, decree was entered in favour of the plaintiff on the

basis that she was entitled to the land by virtue of a decree entered in a

previous partition action. At the stage of execution of the decree the defendant

claimed that the decree was bad and could not be executed on the ground that

the decree in the partition action was a nullity as it had been entered without

substitution for a party who had died pending the trial of that action. The

Supreme Court held that the appellants were bound by the decree entered in

the present action and could not be allowed to attack it at the stage of its

execution, leased of all on grounds they did not urge at the stage of the trial.

In Dionis Vs. William Singho 77 N.LR. PathiranaJ. held that in a partition

action, once a certain land has been excluded from the corpus sought to be

partitioned, the Court has no authority under the Partition Act to determine the

right, title or interest of any person who claims to be entitled to t e land that

has been excluded, or to the plantations, buildings or other improvements on

it.

Chellappah Vs.. Selladurai (76 N.L.R. 310) was a case where in 1946 the

plaintiff in a partition action was allowed by the Court to withdraw the action

with liberty to file a fresh action, provide that costs were paid in terms of the

order. In fact those costs were paid. In November, 1964 the present action for a

partition of the same land was instituted by the successor in title of the second

defendant in the former action; the defendants in the present action were

persons who were either parties to the former action or successors in title of the

parties. In the Supreme Court H.N.G.Femando C.J. held that the proceedings

and decree in the former action could not operate as res judicata or as a bar to

the claims o the present plaintiff and or the successors in tide of the plaintiff in

the former action. Section 406 of the Civil Procedure Code could not preclude

the institution of the present action.

xcii

In Victor Vs. Cyril de Silva (1998 (1) S.L.R. 41) the plaintiff instituted an action

praying for a declaration of title and for the ejectment of the defendants. It was

the position of the plaintiff that lot 6 was allotted to his mother in an earlier

partition action and that she was added as a party subsequent to the entering

of the final decree, and the final decree was amended, allotting lot 6 to his

mother, who had obtained rights prior to the partition action from the 7th

defendant, who had originally been allotted lot 6. The District Court held with

the plaintiff.

In the appeal the Court of Appeal held that;

1. failure to investigate title which could be a good ground for setting aside a

decree on an appeal; in the same action would not detract from the conclusive

effect of section 9 of the Partition Ordinance No. 10 of 1863 when the decree is

being considered in a separate action.

2. on a party of reasoning the fact that lack of jurisdiction to amend a final

decree may be sufficient ground for a Appellate Court acting in the same case

to set aside decree, does not detract from the conclusive effect of section 9

when the decree is being considered in an another case.

3. the question whether the District Judge acted in excess of jurisdiction in

amending the final decree should have been canvassed by the parties affected

by way of an appeal to the Supreme Court in the same action.

NON-PROSECUTION OF A PARTITION ACTION

A partition action shall not be abated by reason of the non-prosecution thereof

but if a partition action is not prosecuted with reasonable diligence after the

Court has endeavoured to compel the parties to bring the action to termination,

the Court may dismiss the action in terms of section 70 of the Act.

However if a plaintiff fails or neglects to prosecute a partition action, the Court

may, by order, permit any defendant to prosecute that action and may

substitute him as a plaintiff for the purpose and may make such order as to

cost as the Court may deem fit.

If no steps have been taken to prosecute the action for a period of two years,

any party to a partition action may apply by way of a motion to Court, to have

such action dismissed, and the Court may dismiss the action if it is satisfied

that dismissal is justified in all the circumstances of the case.

xciii

Such a dismissal of a partition action shall be registered at the Land Registry in

the folio in which the lis pendens in the action was registered or the

continuation thereof.

In the case of Abeysundera Vs. Babuna (26 N.L.R. 459) the Court held that the

dismissal of a partition action for non- prosecution is no bar against a

subsequent action for the partition of the same land.

The cause of action upon which a partition action is based is inconvenience of

common ownership which is a recurring one.

As it was held in Amarasinghe Vs. Podimenike (1997 (1) S.L.R. 349) when there

is a deliberate act of withdrawal of the partition action it is not open to the

defendant who had asked for a dismissal of the action to proceed to prosecute

the partition action. Under section 70 Court can dismiss a partition action for

non-prosecution, however the proviso to section 70 permits a defendant to

prosecute a partition action where the plaintiff fails or neglects to prosecute an

action.

In Peiris Vs. Chandrasena (1999 (3) S.L.R. 153) the District Court permitted the

4th defendant to prosecute the partition action, after judgment had been

delivered, as the action has not been prosecuted with due diligence.

It was contended in appeal that;

(a) action has not been proceeded with due diligence

(b) non-prosecution for a period of 10 years and

10 years‟ adverse possession gives a person prescriptive title.

(c) that the 4th defendant being destitute of rights in the soil is precluded

from prosecuting a partition action, in the capacity of a plaintiff.

The Court of Appeal held that;

1. section 70 states that no partition action shall abate by reason of non-

prosecution, and it imposes a duty on the Court to compel the parties to bring

the action to an end- which duty the Court in this case has failed to fulfill.

Where a delay in an action is the act or omission of the Court no party shall

suffer for it.

xciv

2. it is a rudiment of the law partaking of the character of a first principle

that no party can lose rights by extinctive prescription nor acquire rights by

acquisitive prescription after the date of the institution and during the currency

or pendency of the action.

3. There is no legal impediment to the 4th defendant prosecuting the

partition action in pursuance of section 70, any defendant in section 70 means

any defendant irrespective of whether he has soil rights or not can prosecute

the action thereunder.

33. Dismissal of a partition action

In terms of the section 75 of the Partition Law the dismissal of the partition

action in respect of any land under section 9, 12,29, 62, 65 or 70 shall not

operate as a bar to the institution of another partition action in respect of that

land and also a dismissal of a partition action under sections 29, 62, 65, or 70

shall not affect the final and conclusive effect given by section 48 to the

interlocutory decree entered in such action.

In the case of Marshall Perera Vs. Elizabeth Fernando (60 N.L.R. 229) H.N.G.

Fernando J. held that an action for partition of land belonging to the estate of a

deceased person is not necessarily, though it might often be, an action to which

section 547 of the Civil Procedure Code applies. When objection under that

section is taken, the question to be decided is whether the real or substantial

purpose of the action is to determine question of title. If such be the case, the

proper course is to afford to the plaintiff an opportunity of obtaining probate or

letters of administration.

Where, in a partition action, there is no dispute by any defendant or

intervenient as to the title as stated in the plaint an order of abatement entered

under section 403 of the Civil Procedure Code will not bar the successors in

title of the plaintiff (assuming that section 403 does apply to successors in title)

from instituting a fresh action for partition.

In DingiriAmma Vs. Appuhamy (72 N.L.R. 347) Sirimane J. held that where a

partition action is dismissed in terms ol section 84 of the Civil Procedure Code

on the ground of non appearance of the plaintiff on the trial date and without

any adjudication of the plaintiff‟s rights, the order of dismissal would not

operate as res judicata in a subsequent action brought by the plaintiff for

partition of the same land.

xcv

INTERLOCUTORY DECREE OBTAINED BY MEANS FRAUD In CA CA Appeal No. CA 1186/02/D.C. Gampaha 36831/P ( Weragoda

Vidanalage Thamara Veragoda Vs A Arachchige Premapala) ID WAS

OBTAINED BY MEANS FRAUD-COURT TAKING THE COURT TO TASK-

LIABILITY OF THE JUDGMENT TO SET ASIDE THE ID WAS DICUSSED AT

LENGTH. IT WAS POINTED OUT THAT OBTAINING INTERLOCUTORY

DECREE IN PARTITION CASE MISLEADING COURT, MANIPULATIVELY

IMPRESSING UPON COURT THAT THEY HAD A VALID TITLE TO THE

PROPERTY IN QUESTION AND THAT THE COMMON POSSESSION BETWEEN

THEM WAS IMPRACTICABLE GIVES ENOUGH POWER TO COURT TO SET

ASIDE THE SAME. maxim “Lex non logit ad impossibilia”- protection given to

partition decrees from being attacked on the grounds of fraud, collusion,

omissions, defects, and of the failure to make “persons concerned" parties to

the action should not be construed as a licence to flout the provisions of the

partition law and to deprive others of their property rights to enrich

conveniently at the expense of the victims. LEAVE TO APPEAL TO THE S/C

REFUSED

Seheeda Umma Vs. Haniffa 1999 - 1 SLR 150 APPLIED.

A PARTITION DECREE CANNOT BIND THE STATE

As it was held in the case of Fernando Vs. Perera (2 N L.R. 369) by Withers J. a

decree under section 9 of the Partition Ordinance of 1863 would not bind the

Crown.

In the case of Hamid Vs. The Special Officer appointed under the Waste Lands

Ordinance (23 N.L.R. 150) Lord Buckmaster of Privy Council held as follows;

“The argument with regard to the title given by the partition decree is one

which cannot be maintained. It arises under section 9 of the Ordinance No. 10

of 1863, which provides that a decree of partition or sale under the statute

shall be good and conclusive against all the persons whomsoever.

It is unnecessary to consider whether this section establishes title to the land

as against strangers, or only title to the shares as against interested parties; it

is sufficient to say there is nothing in the Ordinance to bind the Crown, and it

would, indeed be a remarkable thing if a partition decree effected between two

or three parties, it might be by arrangement among themselves, should have

xcvi

the effect of depriving the Crown of the important rights conferred under the

Ordinance in question.”

In Fernando Vs. Senerat (33 N.L.R. 346) Garvin J. held that a public path over

a land is not extinguished by a partition decree, affecting the land, to which the

Crown is not a party.

APPLICATION UNDER SECTION 48(4) OF THE PARTITION LAW

Section 48(4) makes provisions that whenever a party to a partition action;

(i) has not been served with summons, or

(ii) being a minor or person of unsound mind, has not been duly represented

by a guardian ad litem or

(Sub-section (iii) was repealed by Act. No. 17 of 1997)

(iv) being a party who has duly filed his statement of claim and registered his

address, fails to appear at the trial,

And in consequence thereof the right, title or interest of such party to or in the

land which forms the subject-matter of the interlocutory decree entered in such

action has been extinguished or such party has been otherwise prejudiced by

the interlocutory decree, such party or where such party is a minor or a person

of unsound mind, a person appointed as guardian ad litem of such party may,

on or before the date fixed for the consideration of the scheme of partition

under section 35 or at any time not later than 30 days after the return of the

person responsible for the sale under section 42 is received by Court, or the

heirs or the executor or administrator of such deceased party or any person

duly appointed to represent the estate of the deceased party may at any time,

not later than 30 days after the date on which the return of the surveyor under

section 32 or the return of the person responsible for the sale under section 42,

as the case may be, is received by the Court apply to the Court for special leave

to establish the right, title or interest of such party to or in the said land

notwithstanding the interlocutory decree already entered.

Such application shall be by petition, supported by an affidavit verifying the

facts, which shall confirm to the provisions of section 19(l)(a) and shall specify

to what extent and in what manner the applicant seeks to have the

xcvii

interlocutory decree amended, modified or set aside and the parties affected

thereby.

If the Court is satisfied upon an inquiry into such application after prior notice

to the parties to the action deriving any interest under the interlocutory decree;

1. that the party affected had no notice whatsoever of the said partition

action prior to the date of the interlocutory decree or having duly filed his

statement of claim and registered his address, failed to appear at the trial

owing to accident, misfortune or other unavoidable cause, and

2. that such party had a prima facie right, title or interest to or in the said

land, and

3. that such right, title or interest has been extinguished or such party has

been otherwise prejudicially affected by the said interlocutory decree.

The Court shall upon such terms and conditions as the Court in its discretion

may impose, which may include an order for payment of costs as well as an

order for security for costs, grant special leave to the applicant.

Where the Court grants special leave as herein before provided, the Court shall

forthwith settle in the form of issues the questions of fact and law arising from

the pleadings and any further pleadings which are relevant to the claim set up

in the petition only, and the Court shall appoint a date for the trial and the

determination of the issues. The applicant, unless the Court otherwise orders

shall cause notice of such date to be given to all parties whose rights under the

interlocutory decree are likely to be affected or to their registered attorney in

such manner as the Court shall specify. The Court shall thereafter proceed to

hear and determine the matters in issue in accordance with the procedure

applicable to the trial of a partition action.

Where the Court determines any matter in issue in favour of the applicant, the

Court shall in accordance with its findings amend or modify the interlocutory

decree to such extent and in such manner only as shall be necessary to give to

the successful party and to no other party or person whomsoever, the right,

title or interest to which such party is entitled, or in the event of the applicant

being found entitle to the entirety of the said land forming the subject-matter of

the interlocutory decree, the Court shall set as.de the interlocutory decree and

dismiss the action.

xcviii

In the case of Perera Vs. Perera (1978-79 (2) S-L ^9^ the Court held that a

party who wishes to avail himself of the relief provided by section 48(4)(c) of

Partition Law, must make his application to Court not later than 30 days after

the return to the commission by the surveyor under section 32 o the said law

has been received by the Court. This is an imperative provision where the

surveyor is commissioned by Court to make his return on or before a certain

date, there is nothing to preclude the surveyor from making his return to Court

before the said date mentioned in the order and the 30 days will then run from

the date of the actual return to t commission made by the surveyor.

In Malwatta Vs. Gunasekera (1994 (3) S.LR. 168) the fourth defendant who had

filed a statement of claim was absent on 24.01.83 the trial date. His application

for a postponement and his application was refused. The Court after the trial

entered the interlocutory decree. On an appeal lodged the Court of Appeal

affirmed the judgment in 1989. An application was made in terms of section

48(4) to vacate the decree which was refused. In the Court of Appeal it was

held that;

1. section 48(4) does not help the 4th defendant petitioner as he had sent

out his claim through a lawyer.

2. default proceedings spelt out in the Civil Procedure Code do not apply to

partition actions.

3. the trail on 24. 01. 83 has been held inter-partes.

In Wickremarathne Vs. Samarawickrema (1995(2)S.LR. 212) the question that

arose for consideration relates to the interpretation of the words in section

48(4)(a) which limit the time within which a party to a partition action, who did

not appear at the trial and whose rights in the corpus have been extinguished

by the interlocutory decree may apply for special leave to establish his rights.

The Commissioner executed the commission well in advance and the papers

returned by him were received in the registry and dates stamped 15. 10. 1990.

The returnable date fixed by Court was 10. 01. 1991.

The District Court computed the thirty days period stipulated in section

48(4)(a) from the returnable date.

In the Court of Appeal S.N.Silva J. held that;

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“Court” will mean the place of public sitting, where the Judge or Judges

conduct the hearing of any matter before it. The word “Court” is one of general

use and may acquire distinct meaning in the context in which it appears. It

would be misleading and unreasonable to consider; that receipt of papers

anywhere in Court is receipt by “the Court” in the particular usage of these

words in the section; especially where the date of such receipt is the

commencement of a period of time bar imposed by that provision itself.

In statutory interpretation there is a presumption that the legislature did not

intend what is inconvenient or unreasonable.

The provisions of the Partition Law demonstrate that the issuing of a

commission for the final survey and fixing the returnable date are not m

administrative steps but events related to the judicial activity of the Court itself

at its public sitting.

Notice of the returnable date is required to be given to the parties so that they

may apprise themselves of the contents of the surveyor‟s return and object to it

if necessary or resort to the special procedure laid down in section 48(4). Thus

the receipt of he return by “the Court” as referred to in section 48(4)(a) must

necessarily be related to filing of the returnable date “in open Court as required

section 27 The word “Court” should be construed restrictively to mean only the

Court at its public sitting and cannot be extended to cover the registry and its

administrative work.

The basic rule of interpretation is that the legislative objective should be

advanced and that the Pr°v's11^ be interpreted in keeping with the purpose of

the legislature, interpretation should not have the effect of defeating the

objective of the legislature and detracting from its purpose.”

Thus the period of 30 days has to be computed after the date the return of the

surveyor is received 1 open Court on a returnable date that had been fixed by

Court.

In the case of Ranjit Vs. Kusumawathie (1998 (3) S.L.R. 232) Supreme Court

held that, where the District Court rejected an application made by a defendant

in terms of section 48(4)(a) of the Partition Law, the order of the District Court

is not a „judgment‟ within the meaning of sections 754(1) and 754(2) of the

code.

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Representatives

In terms of section 48(6) of the Partition Law, whereby a partition decree a

right, share or interest has been awarded to a party but such party was dead at

the time, such decree shall be deemed to be a decree in favour of the

representatives in interest of such deceased person at the date of such decree.

37. Dishonest non-discloser of interested persons

As it is provided in section 71 of the Partition Law if a party to a partition

action, fraudulently or dishonestly fails or omits to disclose in his pleadings

that any person has any interest in the subject matter or that such person is a

necessary party to such action shall be guilty of an offence under a summary

trial before a Magistrate. But such prosecution should not be entertained

without the sanction of the Attorney General. Further such a convicted person

be guilty of a contempt of Court and may be punished for such contempt in

accordance with the provisions of Chapter LXV of the Civil Procedure Code.

Actions for damages

Section 49 of the Partition Law provides that, any person, not being a party to a

partition action, whose rights to the

subject matter have been extinguished or who is otherwise prejudiced by the

interlocutory decree entered in the action, may, by separate action, recover

damages from any party to the action by whose act such damages may have

accrued. Any person who has benefited by such act may be made a defendant

in such separate action and if damages are award in that action be bound by

the award to the extent of such benefit as may be determined by the Court.

Such separate action for damages may be instituted within five years from the

date of the final decree.

Where such action for damages is instituted and is registered as a lis pendens

under the Registration of Documents Ordinance in, or in continuation of the

folio in which the said interlocutory decree was registered before the decree of

partition is entered under section 36 or the schedule distribution is approved

by the Court under section 47 m the partition action, then if any damages are

awarded the plaintiff in the action for damages:

(a) the amount of such damages shall be a charge on any share of the land

or any money allotted in such partition action to the defendant or each of

defendants in the action for damages.

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(b) such charge shall rank next in priority to the charge referred to in section

34(2) and section 63, and such charge shall be enforceable against such party

and any person deriving a right, title or interest therein or thereto from such

party, not being a transferee for value without notice of the right title or interest

of such plaintiff.

Where an application for special leave under section 48(4) had been refused

without an adjudication upon the merits of the claim set up by such party, the

order refused without an adjudication upon the merits of the claim set-up by

such party, the order refusing leave shall not be a bar to an action under

section 49(1) by the same party. A minor or a person of unsound mind who

shall not have been duly represented by a guardian ad litem shall be deemed to

be a person who was not a party to the said action.

As it was held in Samarasinhe Vs. Balahamy (5 N.L.R. 379) in a partition suit,

damages cannot be claimed or awarded.

In Silva Vs. Silva (9 N.L.R. 110) Layard C.J. held that it is not competent for a

plaintiff in a partition action to join in such suit a claim for damages arising

from a wrongful act committed by one of the co-owners.

In the case of Appuhamy Vs. Samaranayake (19 N.L.R. 403) Ennis J. held that,

where a person claiming to be the owner of a piece of land which had been

partitioned by others in a proceeding under Ordinance No. 10 of 1863 cannot

claim damages under section 9 of the Ordinance from the parties to the

partition action if they acted bona fide and in ignorance of the rights of the

plaintiff. If any owner or co-owner is aware of the pendency of the partition

action and abstains from coming forward, he cannot afterwards claim damages.

In Fernando Vs. Fernando (20 N.L.R. 410) the plaintiff had obtained a partition

decree without disclosing the mortgage rights of another person though he was

aware of them. .

Bertram C.J. held that the mortgagee was entitled to recover damages from the

plaintiff.

In Dullewe Vs. Dullewe (24 N.L.R. 166) a purchaser from one of the heirs of „X‟

had instituted a partition action on he footing that only the children of the

brothers of X were the heirs of X and that the sisters of X were not heirs. After

preliminary decree the children of the brothers came to a settlement with the

children of the sisters and gave them in the testamentary case a smaller

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portion than they would have been entitled to had the sisters been intestate

heirs. On the report of the commissioner in the partition case being received

the plaintiff issued notice to the defendants (children of t brothers) to show

cause against the scheme of partition being confirmed, and as they did not

appear to show cause, final decree was entered. The children of the sisters,-

thereafter brought this action for damages against some of the children of the

brothers under section 9 of the Partition Ordinance.

De Sampayo J. held that they were not entitled to damages. The act of omission

contemplated in section 9 implies some elements of willfulness and intention to

produce a prejudicial result the omission must be of an act which one is bound

to do.

In Cassim Vs. De Vos (25 N.L.R. 477) „ A‟ knowing that „B claimed to be the

owner of lot „X‟, instituted an action for partition of a piece of land including lot

„X‟ and obtained a partition decree without making B a party

Supreme Court held that „B‟ was entitled to claim damages from „A‟ under

section 9 of the Partition Ordinance. An action under section 9 need not be

based on any willful or fraudulent act, but may be based on any act which

gives rise to damage.

In the case of Almeda Vs. Disanayaka (49 N.L R. 257) Court held that a person

who brings an action for damages under the proviso to section 9 of the Partition

Ordinance cannot succeed unless he can show that the person again whom he

makes the claim have been guilty of a breach of a legal duty which they owed

him.

Appeals

As provided in section 67(1) of the Partition Law subject to the provision of

sections 36A and 45 A, an appeal shall lie to the Court of Appeal against any

judgment, decree or order made or entered by any Court in any partition

action, and with regards to such appeals, provisions of the Civil Procedure

Code shall be applicable.

Application for revision and or restitutio in integrum

In the case of Babun Appu Vs. Simon Appu (11 N.L.R. 44) the Supreme Court

held that, in the absence of fraud the remedy of restitutio in integrum is not

available in a partition suit on the ground of discovery of fresh evidence after

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judgment. The only remedy available is an action for damages as provided for

by the Partition Ordinance.

Samarakoon Vs. Jayewardene (12 N.L.R. 316) is a case where, in an action by

the plaintiff to vindicate title to land, the defendants pleaded a decree in a

partition suit in their favour, and the plaintiffs impeached the validity of the

decree on the ground of fraud and collusion. The Supreme Court held that, it

was competent to the plaintiffs, not only to prove that the decree was obtained

by fraud, but also to take exception to the contents of the decree.

As it was held in Perera Vs. Wijewickreme (15 N.L.R. 411) restitutio in integrum

is not granted in Ceylon if the applicant has any other remedy equally effectual

open to him. The remedy can be availed of only by those who were actually

parties to the contracts or legal proceedings in respect of which restitution is

desired (This was not an action for partition).

In Pablis Vs. Euginahamy (50 N.LR. 346) Supreme Court held that, where

summons in a partition action not properly served on a party, such a party is

not bound by the final decree in the case. The Judge can vacate such decree

even where the irregularity has been discovered after final decree was entered.

In the case of Perera Vs. Don Simon (62 N.L.R. 118) Sansoni J. held that an

application for restitutio in integrum cannot be made in a partition action.

In Don Lewis Vs. Dissanayake (70 N.L.R. 08) the petitioner sought to have the

interlocutory decree entered in a partition action set aside. The main ground

urged was that although the petitioner was disclosed as a claimant in the

surveyor‟s report, no notice or summons was thereafter served on him as

required by the Partition Act. The 8th defendant respondent also supported the

application on the ground that, although he was named as 8th defendant in the

plaint, he never received any summons or notice.

The fact showed that the petitioner had tried to pass off as, and usurp the place

of, the 8th defendant-respondent and that, long before the interlocutory decree

was entered, he could have sought to have himself added as a party instead of

taking the inexplicable course he did. Further, even when his application to

intervene was dismissed by the District Court, the petitioner did nothing for 8

months.

The Supreme Court held that it was not the function of the Supreme Court, in

the exercise of the jurisdiction now invoked, to relieve parties of the

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consequences of their own folly, negligence and laches. The maxim vigilantibus,

non dormientibus, jura subveniunt provided a sufficient answer to the

petitioner‟s application.

Further, the petitioner did not display the honesty and frankness expected of a

person seeking the extraordinary powers of the Court.

In Mudiyanse Vs. Punchi Banda Ranaweera (77N.L.R. 501) the first defendant

though served with summons and had ample opportunity to file his statement

of claim failed to file.

In Ukku Vs. Sidoris (59 N.L.R. 90) T.S.Fernando J. held that section 48 of the

Partition Act No. 16 of 1951 which enacts that an interlocutory decree shall

subject to the decision of any appeal which may be preferred therefrom, be final

and conclusive for all purposes against all persons whomsoever does not affect

the extraordinary jurisdiction of the Supreme Court exercised by way of

revision or restitutio in intergrum where circumstances exist in which such

extraordinary jurisdiction has been exercised in the past.

Therefore, where the Court orders interlocutory decree to be entered in the

absence of, and despite the fact that it is aware of the need for, the

appointment of a manager in respect of the interests of a defendant who is a

lunatic, such defendant would not be bound by the interlocutory decree

entered in contravention of the provisions of section 480 reads with section 501

of the Civil Procedure Code. In such a case, section 48 of the Partition Act

No.16 of 1951 would not be a bar to relief being granted in revision or by way of

restitutio in intergrum to set aside the order directing that interlocutory decree

be entered and to give an opportunity to the defendant to file his statement of

claim.

Justice Wimalachandra reiterated the following passage of Perera, J.in the case

of Perera Vs Wijewikrama 15 NLR 411. H/L where it was said that the remedy

of restitutio in integrum can only be availed of by one who is actually a party

to the contract or legal proceeding in respect of which restitution is desired.

Failure to serve summons is a failure which goes to the root of the jurisdiction -

Service of summons CONFERS jurisdiction TO RESOLVE THE DISPUTE. It is

well settled law that judgments entered without service of summons is a nullity.

Salem Vs. Salim 69 NLR 492 EMPHASISES THAT a court of justice will not

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permit a suitor to suffer by reason of its OWN wrongful act and that it is under

a duty to use its inherent power to repair the injury done by its own act.

Sivapathalingam vs. Sivasubramaniam 1990 1 SLR 378 HAS LAID DOWN that

a court whose act has caused injury to a suitor has an inherent power to make

restitution. This power is exercisable not only by the Appellate Court but by the

court which exercises original jurisdiction as well. FUNDERMENTAL VICE.

VIDE CA Appeal No. 709/99 (F) D.C. Kuliyapitiya No. 7135/P

PROOF DEEDS IN PARTITION ACTIONS WIMALAWATHIE vs HEMAWATHIE AND OTHERS- COURT OF APPEAL -

ABDUL SALAM. J- CA 825A-825B/2001 (F)- DC COLOMBO 14522 P-

SEPTEMBER 24,2007, the court considered the question of proof of deeds

in partition actions. Court considered Partition Act No.16 of 1951, Law No.

44 of 1973, Partition Law No. 21 of 1977 and Proof of documents under

Evidence Ordinance of 1895 Section 68. Having compared the earlier law

giving place to a later law, lex posterior derogate priori -leges posteriors

priores contrarias abrogant - non-est novum ut priores leges and posteriors

was applied. It was held that (1) The finding in relation to the want of proof

of the documents produced by the plaintiff and the 10th defendant blatantly

contravenes Section 68 of the Partition Law, which provides that it shall not

be necessary in any proceedings under that law to adduce formal proof of

the execution of any deed which on the face of it, purports to have been dilly

executed unless the genuineness of that deed is impeached by a party

claiming adversely to the party producing that deed or unless the Court

requires such proof.

(3) The execution of documents required by law to be attested should be

'proved by calling at least one subscribing witness - Section 68 Evidence

Ordinance which was enacted in 1895.

PROOF OF ORIGINAL OWNERSHIP AND INVESTIGATION OF TITLE

PROOF OF ORIGINAL OWNERSHIP

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GUNASINGHE vs PODIAMMA COURT OF APPEAL - ABDUL SALAM, J.

CA 1782/2002 (REV.) DC KULIYAPITIYA 7466/P AUGUST 25, 2008

Partition Law - Part of a larger land partitioned? - Discrepancy in the extent

in the plaint and in the preliminary plan - Investigation of title - Duty of

Court - Proof of original ownership -Degree of proof - Lis pendens.

The petitioner seeks to revise the judgment on the ground that, the District

Court had failed to take into consideration the fact that what was sought to

be partitioned was a part of a larger land, and the discrepancy in the extent

of the subject matter in the plaint and the preliminary plan is about 10%of

an acre and therefore it cannot be treated as marginal or negligible and that

the registration of the lis pendens being in respect of an extent of 32Acres,

the action could not have proceeded without any amendment of the plaint.

Held:

(1) A perusal of the preliminary plan clearly shows that the boundaries of

the subject matter as described in the said plan are identical to that of the

boundaries set out in the deeds produced by the plaintiff and the land set

out in the plaint.

(2) The indefinite or undefined eastern boundary on the preliminary plan

would not necessarily mean that the land surveyed for purpose of the action

is only a portion of a larger land.

Per Abdul Salam, J

"It is trite law that proof of original ownership of a land is not always placed

at a very high degree and as such the plaintiff should have been shown

some leniency relating to the proof of original ownership.

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EXCEPTIONS AND EXEMPTIONS

(i) The Conciliation Board‟s Act No. 10 of 1958 shall not apply to an action for partition: S 2 (2). In the same manner the provisions of the Mediation Boards Act No 15 of 1997 also shall not be applicable to partition cases in terms of Section 7(1)(b) read together with the third

the schedule to Act 15 of 1997. (ii) Mortgagee or person claiming an interest under him shall be made a

party only if he has registered an address for service of legal

documents under SS 6 and 28 Mortgage Act: S 5 Proviso (4). (iii) No stamp fees for registering a Partition action as a lis pendens :S 6 (3

) (iv) Evidence Ordinance S 44: Shall not apply to Interlocutory and final

Decree: S 48 (3). (v) Supreme Court‟s powers of revision and restitutio in integrum not

affected by S 48(3). (vi) Interlocutory and Final Decree: Not final and conclusive against non

party claiming interest in corpus to which the decree relates as is not directly or remotely derived from such decree only if such party proves the decree was entered by a Court without competent jurisdiction: S

48(5). (vii) $ 48 (7) are applicable to Interlocutory and Final Decrees entered

under Partition Act 16 of 1951 and to the applicable provisions of the Administration of Justice Law 44 of 1973 repealed by the Civil Courts

Procedure (Special Provisions) Law of 1977. (viii) Executor or Administrator cannot file a partition action in respect of

land belonging to estate he is administering: S 56 (ix) Sale, Lease or Mortgage pendente lite shall be void: S 66

(x) Proof of Deeds: No formal proof is necessary unless genuineness of deed is impeached by party claiming adversely to party producing deed or Court requires proof: S 68

(xi) All pleadings, processes and documents filed or produced shall be exempt from stamp duty : S 74 (1)

(xii) Supreme Court‟s powers of revision and restitutio in integrum not affected by S 48(3).

(xiii) Interlocutory and Final Decree: Not final and conclusive against non party claiming interest in corpus to which the decree relates as is not directly or remotely derived from such decree only if such party proves the decree was entered by a Court without competent jurisdiction: S

48(5). (xiv) S 48 (7) shall apply to Interlocutory and Final Decrees entered under

Partition Act 16 of 1951 and to the applicable provisions of the

Administration of Justice Law 44 of 1973 repealed by the Civil Courts Procedure (Special Provisions) Law of 1977.

cviii

(xv) Executor or Administrator cannot file a partition action in respect of land belonging to estate he is administering: S 56

(xvi) Sale, Lease or Mortgage pendente lite shall be void: S 66 (xvii) Proof of Deeds: No formal proof is necessary unless genuineness of

deed is impeached by party claiming adversely to party producing deed or Court requires proof: S 68

(xviii) All pleadings, processes and documents filed or produced shall be exempt from stamp duty : S 74 (1 )

(xix) All partition deeds shall be exempt from stamp duty :74 ( 2 ) (xx) Stamp Ordinance Part II Schedule A : F: Miscellaneous. Proviso to

paragraph (6): Not affected : S 74 ( 3 ) (xxi) Proxy of Party: Party signing proxy should be properly identified by

means of his National Identity Card, Passport or other means

acceptable to Court.: Civil Procedure Code (Amendment) Act 14 of 1997 S 3(5) which repealed SS 59, 60 & 61 of the Civil Procedure Code and substituted new sections in place of those repealed.

(xxii) Dismissal of a partition action under SS 9, 12, 29, 62, 65 & 70 shall

not operate as Res Judicata : S 75.

SOME OF THE OBJECTIVES OF THE AMENDMENT NO 17 OF 1997

• To eliminate the inordinate delay in the disposal of Partition suits. • Service of summons by registered post; • Fix time frames for various procedural steps;

• Specify clearly the duties of Plaintiff, Plaintiffs registered Attorney, Court and the Judge, Registrar of Lands, Surveyor, Surveyor General, Fiscal, Grama Sevaka, Commissioner, Defendants and Parties Disclosed, Noticed, Intervening or Added.

• To compel parties to nominate a minimum of 1 and a maximum of 3 consenting legal representatives in order of preference who will step into the shoes of the nominator in the event of his / her death during the pendency of the action.