018-NLR-NLR-V-66-M.-ISOHAMY-Appellant-and-M.-HARAMANIS-and-others-Respondents.pdf
SRI SKANDA RAJAH, J.—Isohamy v. Baramanis
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1963Present: Herat, J., and Sri Skanda Rajah, J.M.ISOHAMY, Appellant, and M. HARAMANISand others, Respondents
S. C. 43911961—D. C. Panadura, 5197jP
_Partition action—Decree entered when one of the parties is dead—Invalidity ofsuch decree—Jurisdiction of District Court to hold that the decree was invalid.
A partition decree entered when any one of the parties was dead at the timeof such entry is void and of no avail in law. In a subsequent action for parti-tion, in which the corpus is admittedly part of the larger land which formedthe corpus partitioned in the earlier action, it is competent for the DistrictCourt to hold that the decree in the earlier action, even if it had been enteredafter appeal, was invalid.
Appeal from a judgment of the District Court, Panadura.
R. P. GoonetilleTce, for the Plaintiff-Appellant.
P’S'. A. Koattegoda, with TV. R. M. Daluwatte, for the 10th, 26th, 27thand 37th to 42nd Defendants-Respondents.
December 4, 1963. Sri Skanda Rajah, J.—
This is an action for partition in which the corpus is admittedly partof a larger land which formed the corpus partitioned in D. C. PanaduraCase No. T. K. 584.
It would appear that the points at issue in this case were whether thepartition decree entered in the earlier case T. K. 584, which was institutedin the year 1944 and which was concluded in 1956, was a valid decreeand whether the District Court could itself inquire into the validity-of that decree.
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The Queen v. ThambipUlai
There was sufficient material to show that the 15th defendant wasdead before the institution of the partition action No. T. K *' ji. Therewas also sufficient evidence to show that the 72nd defendant was deadbefore the interlocutory decree was entered.
A partition decree entered when anyone of the parties was dead atthe time of such entry is void and of no avail in law.
When a question of this type arises in the District Court it is competentto the District Judge to decide on the validity or otherwise of such apartition decree even if such a partition decree had been entered, as in
T.K. 584, after appeal. Therefore, it was competent to the DistrictJudge to hold that the decree in T. K. .584 was invalid.
Without expressing any opinion as to whether there was sufficientevidence to show that the 73rd defendant in T. K. 584, from whom theoriginal plaintiff in this case claimed, was dead we set aside the order ofthe learned District Judge and send the case back for trial in due course.The appellant is entitled to the costs of appeal as well as the costs ofcontest in the District Court.
Herat, J.—I agree.
Order set aside.