060-NLR-NLR-V-69-M.-R.-D.-PIERIS-Appallant-and-K.-R.-ABEYSINGHE-and-another-Respondents.pdf
H. N. G. FERNANDO, S.P.J.—Pieris v. AbeysingJte
275
Present: H. N. G. Fernando, S.P.J., and Sri Skanda Rajah, I.
M.R. D. PIERIS, Appellant, and K. R. ABEYSINGHE and another,
Respondents
S. C. 71/62 (Inty.)—D. C. Kurunegala, 532/P
Partition decree—Assignment of certain lots to a particular group of persons—Subsequent partition action in respect of such lots—Quantum of shares to whichthe members of the group are entitled.
Where a partition decree assigns certain lots to a number of persons asa group who derive their title from the same source, without defining theinterests of the members of that group inter se, a subsequent partition actionmay be instituted for the purpose of partitioning the land comprising the lotswhich were assigned to that group. In such a case, it cannot be contendedthat the earlier partition decree conveyed equal shares to the persons whoformed the group. The finality of a partition decree does not touch matterswhich the decree does not in terms purport to define with finality.
Ar:
PEAL from an order of the District Court, Kurunegala.
H. W. Jayewardene, Q.C., with N. E. Weerasooria (Jnr.) and R. D. G.de Silva, for the Plaintiff-Appellant.
C. Thiagalingam, Q.C., with C. Ranganathan and K. Thevarajah, forthe 1st and 2nd Defendants-Respondents.
Cur. adv. vvU.
August 3, 1965. H. N. G. Fernando, S.P.J.—
This was an action for the partition of a land comprising four lots E, F, G,and H. There had been an earlier partition action affecting a largerland (D. C. Kurunegala No. 11350 P). That action was instituted in1926 by one Charles de Zylva as plaintiff against one Kumarappa
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H. N. Q. FERNANDO, S.P.J.—Ptiria v. Abeyainghe
Chettiar as defendant. Thereafter one Dionysius de Abrew Abeysingh®intervened as guardian ad litem of his two minor children Princey andKingsley, and claimed on their behalf that the children were entitledto a. one-eighth share of Charles de Zylva’s interests in the land byvirtue of a deed of gift which the latter had executed in 1924 in favourof the children. The two minors were added as the second and thirddefendants and their guardian was, as such, added as fourth defendant.
Kumarappa Chettiar’s interests had passed to one D. G. Joseph, whointervened and was added as the fifth defendant.
The proceedings in action No. 11350 were much protracted. Charlesde Zylva died in 1929 and three of his children were substituted asplaintiffs in his place. Evidence was led after this stage. One of thesubstituted plaintiffs stated that Charles de Zylva had died leaving a lastwill, but the terms of the will were not proved; nor was there any statementas to the persons to whom or the mode in which the deceased’s interestsdevolved on death. No reference was made to the deed of 1924 uponwhich the intervening second and third defendants claimed a one-eighthshare. The whole purport of the evidence led for the plaintiffs and forJoseph the fifth defendant was to prove the title of Charles de Zylva andthe fifth defendant, and to explain to the Court a compromise by whichJoseph agreed to take certain lots as his share and the other partiesagreed to take what are now lots E, E, G and H as representing the shareof the deceased Charles. In the interlocutory decree entered on October1937 effect was given to this compromise, and the rights of the secondand third defendants were also impliedly recognised. Lots E, F, G and Hwere by the decree allotted to the substituted plaintiffs and to the second,third and fourth defendants.
Thereafter Madalena, one of the three substituted plaintiffs, died, andsteps were taken to substitute four heirs of Madalena in her place. Atthis stage it was apparently discovered that there had been no duesubstitution after Charles de Zylva’s death, for he had left six childrenin all, and also his widow. Hence, when application was made forsubstitution of the heirs of Madalena, application was also made for theadditional substitution of Charles de Zylva’s other three children andhis widow. In the result, the substituted plaintiffs thereafter comprisedfive of Charles’ children and the heirs of his deceased child Madalena,and his widow.
Mr. Thiagalingam argued before us that no notice of these substitu-tions was served on the second, third and fourth defendants, and thatthey cannot be bound by any consequences flowing from that substitu-tion. We do not think it appropriate in the circumstances to considerthis objection which is based on an assumption of facts which were notput in issue at the trial of the present action.
H. N. G. FERNANDO, S.P.J.—Peiria v. Abeyainghe
27T
After the substitutions above mentioned, final decree was enteredallotting the four lots to “ the substituted plaintiffs and the second,third and fourth defendants In the caption of the decree the nameof the fourth defendant was qualified by the description “ guardian adlitem ” of the second and third defendants.
The dispute in. the present action concerns the quantum of shares towhich the substituted plaintiffs on the one hand, and the second, thirdand fourth defendants on the other, became entitled under the earlierpartition decree. The present two defendants claimed successfully inthe lower court that under the interlocutory decree title to the four lotspassed in equal shares to the six persons, i.e. the three children of Charles(who were first substituted after his death) and the second, third andfourth defendants. On that basis the learned Trial Judge has held thatthe second, third and fourth defendants became entitled to one-sixthshare each in the four lots.
In determining the dispute by reference to the interlocutory decreethe Trial Judge has for unexplained reasons ignored his own correctstatement that the principal issue concerns the construction of the final.decree. That issue he left unanswered and we have now to answer it.
I would respectfully adopt the statement of Bertram C.J. (Garvin J.and Jayewardene A.J. agreeing) in Carlinahamy v. Juanis1 that in apartition decree assigning lots to a family group, “ the Court must haveintended that they should hold it in undivided shares according to theirrespective interests whatever they were ”, and that in such a case thereis no prima jacie inference that the members of the group would acquiretitle in equal shares. I would venture to add the observation that thefinality of a partition decree does not touch matters which the decreedoes not in terms purport to define with finality. Let me take thecommon case of an allotment of shares to “ the heirs of the deceasedparty ”. Unless the allotment purports to be in equal shares, there is nodefinition of the quantum of the shares, and that quantum will remainto be determined by reference to various matters, such as the questionwhether the deceased party left a surviving widow or husband and theparticular family law which may be applicable.
Despite Mr. Thiagalingam’s submissions to the contrary, it is clear,from the evidence led and from the circumstances, that the earlier parti-tion aotion was not intended to define the interests of those claiming underCharles de Zylva. He was originally the sole plaintiff, and he sought apartition between himself and one defendant who he thought was soleco-owner. Although the second and third defendants intervened toclaim one-eighth share under their deed, then- title was not in fact proved,investigated or admitted at the trial. The substituted plaintiffs merelyproceeded to obtain a partition of the land as between the fifth defendanton the one hand and those claiming under Charles de Zylva, as a group,
1 (1924) 26 N. L. R. 129.
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de Silva v. Ranasinghe
on the other. I would hold therefore that interests of the members ofthe group inter se were not defined either by the interlocutory decree orby the final decree.
The only interest which the second and third defendants had was a one-eighth share jointly under the deed to which they referred when theyintervened, and which was proved for the first time in the present action.The fourth defendant was it is true mentioned in the family group, but hewas so mentioned only because he had been named as the fourth defendant-in his capacity of guardian of his two minor children. It would be absurdto impute to the Court which entered the decree any intention to allot tothe fourth defendant, who had merely intervened as guardian, any interestin his own right. I would hold therefore that no interest passed to himunder the decree.
I should add as a matter of caution that there has been no occasionon this appeal to consider the provisions of the new Partition Act.
In the result the appeal has to be allowed with costs. Theinterlocutory decree entered in the present action is set aside, and thecase is remitted to the District Court for interlocutory decree to beentered as prayed for by the plaintiffs.
Sri Skanda Rajah, J.—I agree.
Appeal allowed.