010-NLR-NLR-V-53-SEEDIN-Appellant-and-THEDIYAS-Respondent.pdf
BOSIi C-T.—Scedin c. Thcdiyax
ia
1981Present : Rose C.J.SEEDIN, Appellant, and THEDIYAS. Respondent-
S.C. 174—C. R. Matara, 3,092
Partition decree—Creates new title in the parties—Married Women's PropertyOrdinance (Cap. 46), s. 10 (1).
Partition decrees are not, like other decrees affecting land, merely declaratoryof the existing rights of the parties inter sc. They create a new title in theparties. Where, therefore, a woman who possessed an undivided share of aland prior to the commencement of the Married Women's Property Ordinanceis awarded in a partition decree entered after the commencement of thatOrdinance a divided lot in lieu of her undivided share, she is entitled, undersectiou 10 (1) of the Ordinance, to dispose of the divided lot without the consentof her husband. The partition decree operates to defeat the interest whichthe husband previously bad in his wife’s share in ihe undivided land.
^y^PPEAL from a judgment of the Court of Requests, Matara.
W. Tambiah, with P. Navaratuarajah and V. Rat.nasabapathy, for theplaintiff appellant.
W. Obeyesekere with G. L. L. de Silva, for the defendant respondent.
Cur. adv. vult.
November 2, 3951. Rose C.J.—
In this matter the plaintiff-appellant claims a declaration of title .to acertain land, described as lot B.
It is common ground that by a partition decree entered in the DistrictCourt of Matara on January 17, 1940, the wife of the defendant-respondentbecame entitled to lot B in lieu of a certain share of a larger undividedland, which she had inherited from her first husband in 1918. She soldJot B to the plaintiff in 1942, the deed PI being executed without thehusband’s (respondent’s) consent. The respondent admits having beenin possession of the land since 1949.
The respondent contends and the learned Commissioner found thatdeed PI conveyed no title to the appellant because the respondent’swife’s title accrued before July 1, 1924, which is the relevant date forconsidering the application of Section 10 (1) of the Married Women’sProperty Ordinance (Chapter 46). It is further contended for therespondent that the partition decree cannot operate to defeat therespondent’s interest in his wife’s share in the undivided land, whichinterest, he submits, continues to' attach to lot B after the partitiondecree.
In my opinion this contention is not well-founded. As was statedby De Sampayo J. in Bernard v. Fernando l, “ Partition decrees,are conclusive by their own inherent virtue, and do not depend for their
1 (1913) 16 N.L.B. p. 439.
10 – N. L. R. Vol. – Liii
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The Ceylon Insurance Co.. Ud., v. Uichard
final validity upon anything which the parties may or may not afterwardsdo. They are not, like other decrees affecting land, merely declaratoryof the existing rights of the parties inter se. They create a new titlein the parties absolutely good against all other persons whomsoever.”This passage is cited with approval in Mr. Javewardene's book on” The Law of Partition in Ceylon ” at page 189.
It seems to me, therefore, that the title to lot B accrued to the re-spondent’s wife on January 17, 1940, and that therefore the subsequent-sale to the plaintiff in 1942 did not require the consent of the respondent.I would add that when the Legislature desires to protect a particularinterest in partitioned land special provision is made in the PartitionOrdinance (Chapter 56), as for example in Section 12 which protects theposition of a mortgagee. Similarly, Section 9 preserves to any personprejudiced by a partition the right to recover damages in a proper ease.
The appellant, therefore, is, in my opinion, entitled to the declarationasked for and also for damages which were agreed by the parties at therate of Its. 15 per annum from May 2, 1949. The appeal is thereforeallowed, the judgment of the learned Commissioner set aside, and judg-ment entered for the appellant accordingly. The respondent will paythe costs here and below.
Appeal allowed.