091-NLR-NLR-V-17-KELAART-v.-MORTIER-et-al.pdf
Present: Pereira J. and Ennis J.
1918.
KELAART v. MOBTIEB et dl.
51—D, C. Colombo 32,412
■ Partition action—Questions as to title—Parties should not he referred to aseparate suit
When questions as to title arise in a partition suit, wnether it bebetween the original parties to it or an internment who seeks tocome in after the interlocutory decree and another party, theCourt should not refer the parties concerned to a separate actionto have such questions in the first instance decided, but the sameshould be adjudicated upon in the partition suit itself.
TThE facts appear from the judgment.
F. Grenier, for seventh defendant, appellant.
E. W. Jayaiwardene (with him B. Koch), for added defendant,respondent.
.May 17, 1913. Pereira J.—
This is a suit under the Partition Ordinance (Ordinance Mo. 10 of1868), and the present contest is between the seventh defendantand the added defendant. The seventh defendant wa6 allotted aneighth share of the properly sought to the partitioned, and a decreewas entered that the property be sold and the proceeds distributedamong the co-owners. Pending the sale the added defendant fileda petition of intervention and claimed the share of the propertysought to be partitioned that had been allotted to the seventhdefendant. He did so on the strength of a conveyance executed inhis favour bv the seventh defendant dated July 6, 1894. Theseventh defendant raised certain objections to the added defendant’sclaim, and no less than five issues were framed by the District Judgeto be decided on evidence. Evidence was duly called by both theparties, and the District Judge reserved his judgment. On thesupposed authority of a case, however, cited to the District Judgethereafter, he has stayed his hand, and held that certain questionsraised by the seventh defendant cannot be tried in tins case, butmust be tried upon proper pleadings and in a separate suit, and hasreferred the seventh defendant to a seperate^ action. Now, it isclear that under the Partition Ordinance it is the duty of the Courtto decide all questions relating to the title to the property soughtto be partitioned. In the case of disputes as to title, section 4 of
1918.
PaKBnu. J,
Monti*
( 270 )
the Ordinance enacts that the Court shall in the partition suit itself“ proceed to examine the titles of the parties interested, and theextent of their several shares or interests, and to try and determineany other matter in dispute between the parties,1' and althoughit was at one time thought that when questions as to title wereraised, the proper course was to refer thaparties in the first instanceto a separate suit for the determination of those questions, theCollective Court in the case of Sinchi Appu, v. Wijeygoonesekere 1restored to the words of the Ordinance cited above their full effectby holding that all questions as to title and possession should begone into in the partition suit itself. I can see neither principle norpolicy to support a contrary opinion. Questions may, of course, beconveniently decided on “proper pleadings," but there is no magicin pleadings, and the same questions may as conveniently be triedby- embodying them in issues to be framed after examination of theparties or on statements made by them in their petitions andaffidavits ; and unless there is the strongest authority f6r departingfrom the rulings of the Collective Court in the case referred to above,I would rather adhere to them. I do not forget the fact that in thepresent case the contest arose after the interlocutory decree had beenentered. That fact, however, made no difference, because thisCourt had held more than once that a party might come into apartition suit after the interlocutory decree as well as he might-before. The case from the Matara reports relied on by the DistrictJudge could not be given greater effect than the decision of theCollective Court cited above. Anyway, what Wendt J., who wrotethe judgment in that case, said wa6, that it was irregular to try anissue such as that raised in it incidentally in an application todistribute the proceeds of sale. The issues in the present case werenot raised in any proceeding incidental to an application to dis-tribute the proceeds of sale. They were framed on a petition ofintervention duly filed after the interlocutory decree, but before thesale of the properly dealt with in the case. Moreover, what Wendt J.says in the Matara case is that he is disposed to think that the issueshould be tried in a separate action. This is mere obiter. Whathe holds is that such an issue as that raised in the case should be •tried on proper pleadings. That is quite a different matter frominstituting a separate action. There is no objection to statementsanalogous to pleadings being filed even in a partition suit to elucidate'the matters in. issue. I can, however, see no necessity for such aproceeding in the present case.
I would set aside the order appealed from, and remit the case tothe Court below for proceedings in due course. I think that theappellant should have his costs of appeal.
Ennis J.—I agree.
Appeal dismissed.
1 6 N. L. R> 1.