AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT- Section 66 of the Partition Act-
AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT-
Section 66 of the Partition Act-
AGREEMENT AS TO
THE CORPUS IN THE PARTITION SUIT-
Section 66 of the
Partition Act- After a partition action is duly registered as a lis pendens
under the Registration of Documents Ordinance, no voluntary alienation of any
undivided share or interest or in the land to which the action relates shall be
made or effected until the final determination of the action. The prohibition
against alienation of undivided shares under section 66 has been held not to
affect the disposal of property, by expressly charging or disposing of interest
to be ultimately allotted to parties in the action.
Abdus Salâm, J.
The
deceased-plaintiff filed action to partition the defined and divided allotment
of land known as lot 3 of "Welle Elabodawatta" depicted in final plan
of partition No. 366, filed of record in DC Kalutara case No. 31046. There was
no corpus contest and an important feature in the case was the agreement of the
parties as to the identity of the land sought to be partitioned.
Devolution of
title to the subject matter, in terms of the amended plaint, starts with the
original ownership attributed to (1) Liyasel Fernando (2) Andiris Fernando (3)
Peter Fernando (4) Michael Fernando (5) Melie Fernando (1stdefendant-respondent)
and (6) Punchinona Fernando (2nd defendant-respondent). Liyasel
Fernando and Andiris Fernando had died without marriage and issues and their
rights had devolved on the surviving collaterals Peter Fernando, Michael
Fernando, Melie Fernando and Punchinona Fernando.
Peter Fernando
has died interstate leaving as heirs the 3rd defendant-respondent
Thilakaratna Fernando and Kamalin Fernando. Kamalin Fernando had died leaving
as her heirs her husband Sisil Clement Silva (4thdefendant-respondent)
and her children Roshan Chandima de Silva (5thdefendant-respondent)
and Ranga Vides Silva (6th defendant-respondent).
The 1/4th
share of Michael Fernando from and out of lot 3, which gave rise to the main
controversy in the case, has been transferred on deed No 509 dated 15th
December 1992 attested by H. R.
Marikkar to the
plaintiff. The devolution of title set out in the plaint is as follows.
1.
Plaintiff - 8/32
2.
1st defendant -
8/32
3.
2nd defendant -
8/32
4.
3rd defendant -
4/32
5.
4th defendant -
2/32 6. 5th defendant - 1/32
7. 6th defendant - 1/32
The plaintiff
also pleaded in the amended plaint that even though the 17th
defendant-respondent and 18thdefendant-appellant had allegedly
purchased rights from Michael Fernando on deed No's 6240 and 3124 respectively,
the said deeds are obnoxious to section 66 of the Partition Act and of no force
or avail in law and no title passes on the said deeds.
The contention of
the 18th defendant-appellant and 17th defendantrespondent
(hereinafter collectively referred to as the "contesting defendants")
was that Michael Fernando referred to in the amended plaint transferred an
undivided (1) 10 perches on deed No 2741 dated 23rd April 1987,
(2) 5 perches on deed No 2753 dated 11th
May 1987, and (3) 10 perches on deed No 2808 dated 3rd June 1987 and
(4) 10 perches on deed No 2948 dated 20th January 1988 aggregating
to 35 perches from and out of the right, title and interest that he would be declared
entitled to in the partition action to them and therefore the
plaintiff-respondent is not entitled to any shares from the corpus as Michael
Fernando did not have any rights in lot 3 to alienate, when he had purportedly
transferred ¼ share to the plaintiff on deed No 509.
The dispute
therefore narrowed down as to whether the rights in the land had devolved on
the parties, as set out in the amended plaint or in the statements of claim of
the contesting defendants. By judgment dated 15th June 1998 the
trial judge held inter alia that
relied upon by the contesting defendants are obnoxious to section 66 of the
Partition Act and no rights pass on the said deeds. Hence, he declared deed
No's 6240, 3124 and several other deeds of the same type as being void in law.
The 18th defendant-appellant has preferred the instant appeal, to
have the said judgment of the learned district Judge set aside and the
partition action dismissed.
Admittedly,
Michael Fernando was the 32nd defendant in partition action No
31046, in addition to his being one of the legal representatives of the
deceased plaintiff. In that case the 32nddefendant Michael Fernando
was allottedlots 15 and 22 depicted in plan
of partition No. 366. Besides, in terms
of the final decree, he was also entitled to an undivided 1/4th
share from and out of lot 3 depicted in plan No 366. It is common ground that
the subject matter according to the preliminary plan is in extent of 1Rood and
27.8 Perches. The share claimed by the plaintiff is 16.95perches being equivalent to 1/4th parts of the
corpus. Based on the claim made by the contesting defendants, on the strength
of the pending partition deeds, their claim cannot extend to more than11.3 perches of the corpus, being 1/6 share of
John Fernando.
There was no
dispute that Michael Fernando was declared entitled to lots 15 and 22 in extent
1 Rood 16.33 Perches and 1 Rood 13.30 Perches respectively in terms of the
final decree entered in partition action No 31046. It is somewhat striking that
Michael Fernando has got both these lots15 and 22 as the 32nd defendant in that case
and therefore he could undoubtedly dispose of the rights by expressly charging
or disposing of his interests to be ultimately allotted to him in that action.
The total extent
of the lots 15 and 22 allotted to Michael Fernando works out to 2 Roods and 29.63 Perches. He has transferred
the right, title and interest that he would be
declared entitled to in the partition action, on six occasions. As far as
the present appeal is concerned, the following deeds of transfers appear to be
noteworthy.
They are…
Deed 2747 - to the 17thdefendant - 10 perches
|
Deed 2753 - to the 18thdefendant - perches
|
5
|
|
Deed 2808 - to the 18thdefendant - perches
|
10
|
|
Deed 2747 - to the 18thdefendant -
|
10
|
perches
Michael Fernando
also prominently featured in the final decree entered in the previous partition
action in relation to lot 3 which is the subject matter of this case. In actual fact lot 3 in that case was
allotted in lieu of the undivided shares of the deceased plaintiff John
Fernando and in terms of the final decree allotted to 1 to 7 substituted
plaintiffs. It is common ground that Michael Fernando is one of the children of
John Fernando (deceased plaintiff) and a substituted-plaintiff in the action.
An important
legal question that arises for consideration is whether the deeds written in
favour of the contesting defendants are obnoxious to section 66 of the Partition
Act, as has been held by the learned district Judge. Section 66 of the
Partition Act, lays down inter alia that
after a partition action is duly registered as a lis pendens under the Registration of Documents Ordinance, no
voluntary alienation of any undivided share or interest or in the land to which
the action relates shall be made or effected until the final determination of
the action. The prohibition against alienation of undivided shares under
section 66 has been held not to affect the disposal of property, by expressly
charging or disposing of interest to be ultimately
allotted to parties in the action. Such
dispositions are not considered as being obnoxious to section 66 of the
Partition Act. The scope and the type of restrictions imposed by section 66
(previously under section 17 of the Partition Ordinance No 10 of 1863) have
been the subject of the decision of the appellate courts in several matters.
However, in my view suffice it would be to refer to the judgment in the case of
Koralage Podinona Vs Sunny Fernando[2].
Based on the
decision of Stanley Gunawardena J, in Koralage Podinona (supra), it is crystal
clear that the different dispositions made by Michael Fernando in favour of the
contesting defendants in this case, are not obnoxious to the prohibition
imposed under section 66 of the Partition Act, for all those dispositions deal
with undivided extent of the right, title and interest of Michael Fernando to
be finally allotted in the partition action, as
opposed to the prohibited nature of alienation involving undivided shares from
and out of the corpus. In the
circumstances, it would be seen that the learned trial judge has misread the
deeds of the contesting defendants as being obnoxious to section 66 of the
Partition Act, which findings I think should stand corrected at the outset, as
the deeds are perfectly valid in law. Nevertheless the question whether title
in respect of lot 3 could pass on the said deeds is a
different issue and
should be considered
separately focusing on the contents
of the deeds, by ascertaining exactly as to what Michael
Fernando intended to transfer on those deeds.
It was contended
on behalf of the contesting defendants that without instituting a partition
action to divide lots 3, 15 and 22 the plaintiff-respondent who got undivided
shares from and out of Lot 3 cannot maintain the present action in respect of
Lot 3 only, as the contesting defendants hold right, title and interest that would be
allotted to Michael Fernando in the partition action to the extent of at
least 35 perches out of Lot 3. This argument of the contesting defendants is
not only sustainable in law but inconsistent with the facts of the case. It is
settled law that an action for the partition of more than one land can only be
brought, if the lands sought to be partitioned are contiguous in nature and the
devolution of title is common to all.
The preliminary
plan prepared in this matter does not indicate Lot 15 and/or Lot 22 as being
adjacent or bordering the subject matter Lot 3. On an examination of the
devolution of title applicable to all three lots it is hardly possible to say
that the devolution of title is common to all three lots. As such, even if the
plaintiff-respondent was keen, yet the law does not allow him to have recourse
to one partition action to partition all three lands in one single action, as
the allotments of land the contesting defendants submitted should be brought in
for that purpose, do not form contiguous allotments and come under a common
devolution of title.
As far as the
interlocutory decree entered in partition action 31046 is concerned, one has to
be mindful of the fact that Michael Fernando has been declared entitled to
three allotments of land, in two different capacities. He has been declared entitled to lots 15 and
22 in his capacity as the 32nd defendant. In the result he became the sole
owner of the entirety of lots 15 and 22 in an unqualified manner without having
to prove anything further.
As regards lot 3,
the district Judge after the investigation of title under section 25, declared
and awarded rights to John Fernando (the deceased-plaintiff) in the name of the
legal representatives in a representative capacity. For instance, if John Fernando
had another child who has not been substituted as a plaintiff, would it mean
that the child so left out should be deprived of paternal inheritance?. The
answer to this question under no circumstances can be adverse to the child
concerned.
By the mere fact
that certain persons were substituted in place of the deceased plaintiff and
declared to be entitled to undivided rights in the land and that in lieu of
those undivided rights they are allotted rights under the final decree, by
itself is insufficient to make the substituted plaintiffs, co-owners of lot 3,
unless they are able to establish their right of inheritance from John
Fernando. As a matter of fact the district Court is not expected to carry out
an investigation of title to ascertain as to the manner in which the rights of
a party, who had died pending the determination of the action and declared to
be entitled to undivided shares and/or given rights under the final decree, had
passed hands. Thus, it would be seen, in so far as lot 3 is concerned, Michael
Fernando does not per se become entitled to any rights from an out of Lot 3,
directly under the final decree. His title to an undivided 1/6th
share of Lot 3 depends on two factors, namely that John Fernando is declared
entitled to a particular lot under the final decree and that Michael Fernando
is a son of the said John Fernando. Hence, it could be seen that even though
the deeds produced by the defendants do not offend the Provisions of section 66
of the Partition Act and its objectives, nevertheless no rights can pass
automatically on those deeds without proof of heirship. This would make it
abundantly clear that Mike Fernando has not been declared entitled to an
undivided 1/6th share of lot 3 to enable the contesting defendants
to avail of the pending partition deeds to acquire rights from and out of lot 3, in contrast to the acquisition of rights from
and out of lots 15 and 22.
As regards lots
15 and 22 one cannot think of any such impediment in the way of the contesting
defendants. It cannot be argued that Michael Fernando is not directly entitled
to the said lots in terms of the interlocutory decree and final decree entered
in the case. As such it was within the power of Michael Fernando to dispose of
his rights without infringing the provisions of section 66 of the Partition Act
by assignment of right, title and interest that he would be declared entitled
to in the partition action. As such dispositions made by deeds produced by
defendants cannot stand in the way of their right to acquire of rights in lots
15 and 22.
At this stage it is necessary to
emphasize that Michael Fernando along with 5 others are deemed to have been allotted
lot 3 in terms of section 48 (6) of the Partition Act. Here, the clear
distinction that arises is that Michael Fernando was
allotted lots 15 and 22 by the final decree in the former partition action
and is deemed
to have been allotted lot 3
along with 5 others. Significantly, Michael Fernando has only transferred his right title and
interest that are to be allotted in the partition action and not the
right title and interestdeemed to have been
allotted under section 48 (6) of the Partition Act. (Emphasis added to
demonstrate the weight attached to direct allotment of shares as opposed to
allotment of shares under the deeming provision). This distinction clearly
shows that Michael Fernando had no intention to part with the rights he was to
get under section 48 (6) but manifestly intended in no unmistakable terms to
pass undivided interest from and out of the right, title and interest he was to
be declared entitled to under the partition decree, which culminated in his
being unconditionally declared entitled to lots 15 and
22.
As spelled out
above, at the most the contesting defendants can only claim their share from
Michael Fernando only against lots 15 and 22. As such the claim of the
contesting defendants as far as lot 3 is concerned should necessarily fail. The
resultant position therefore would be that the learned district Judge’s findings
cannot be critically looked at, except that he should have refrained himself
from declaring the deeds produced by the contesting defendants as being
obnoxious to the prohibition imposed by section 66 of the Partition Act. As
stated above it is my considered view that the deeds in question are absolutely
valid and perfectly in order except that no title passes on to the contesting
defendants upon those deeds in as much as the subject matter is concerned. As
it is quite evident from the words employed by the notary in those deeds,
Michael Fernando has in fact transferred his right, title and interest that he
would be declared entitled to and such dispositions are only referable to lots
15 and 22 to which he has been in fact directly declared entitled to.
For the foregoing
reasons, it is my considered view that the appellant is not entitled to succeed
in his appeal. Consequently, the petition of appeal of the 18th
defendantappellant is hereby dismissed subject to costs.
Judge of the
Court of Appeal
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