PARTITION- ID OBTAINED BY MEANS FRAUD-COURT TAKEN TO TASK-LIABILITY OF THE JUDGMENT TO SET ASIDE
PARTITION- ID OBTAINED BY MEANS FRAUD-COURT TAKEN TO TASK-LIABILITY OF THE JUDGMENT TO SET ASIDE
OBTAINING INTERLOCUTORY DECREE IN PARTITION CASE MISLEADING COURT, MANIPULATIVELY IMPRESSING UPON COURT THAT THEY HAD A VALID TITLE TO THE PROPERTY IN QUESTION AND THAT THE COMMON POSSESSION BETWEEN THEM WAS IMPRACTICABLE - maxim “Lex non logit ad impossibilia”- protection given to partition decrees from being attacked on the grounds of fraud, collusion, omissions, defects, and of the failure to make “persons concerned" parties to the action should not be construed as a licence to flout the provisions of the partition law and to deprive others of their property rights to enrich conveniently at the expense of the victims. LEAVE TO APPEAL TO THE S/C REFUSED
Seheeda Umma Vs. Haniffa 1999 - 1 SLR 150 APPLIED.
CA Appeal No. CA 1186/02
D.C. Gampaha 36831/P
D.C. Gampaha 36831/P
Weragoda Vidanalage Thamara Veragoda,
Petitioner
Vs
1. A Arachchige Premapala,
Plaintiff-Respondent.
2. Polwatta Gallage Sadhdhananda,
Defendant-Respondent
Kamala Seline Meemana Hettiarachchi,
3rd Defendant-Respondent
U.De Z. Gunawardena with C.Horange for the petitioner, Athula Perera for the 1stplaintiff-respondent and H.Withanachchi for the 2nd and 3rd defendant-respondent.
Decided on : 24.11.2008
Abdul Salãm J.
The petitioner has made the present application to revise the interlocutory decree and final decree entered in partition case No: 36831/P in the District Court of Gampaha. Admittedly, she was not a party to the partition action. Her allegation is that the interlocutory and final decrees entered in the partition action have been obtained by the Plaintiff-Respondent (hereinafter referred to as the “Plaintiff”) and the Defendant-Respondent (hereinafter referred to as the “Defendant”) calculatingly misleading the District Court.
The facts and circumstances that led to the filing of the partition suit, are worthy of being narrated briefly. According to the plaint, by right of long and prescriptive possession the original owner of the corpus was Kamala Seline Meemana Hettiarachchi who had gifted the same to her husband Saddananda on deed No: 841 dated 08.11.1993. Saddananda on deed No: 845 dated 13.11.1993, has transferred an undivided 10 perches from and out of the entire land to one Balasooriya Arachchige Premapala. The straightforward devolution of title set out by the plaintiff, when drawn in the traditional manner of showing by way of a pedigree, would appear as follows.
The sequence of events that had taken place prior to the institution of the partition action, need to be set out at this stage.
The alleged original owner has purportedly gifted the property to her husband on 8.11.1993 (by A 12) and he in turn transferred an undivided 10 perches on 13.11.93 (by A 13) barely five days after his becoming the owner of subject matter. The partition suit had been filed on 30.11.1993, just after 17 days of his becoming a co-owner. Quite strangely, both deeds A12 and A13 have been executed by the same Notary. It is rather an unusual feature that the notary who attested deed A 12, having acted for his clients Mrs. Hettiarachchi and her husband Saddananda had subsequently acted for the transferee Premapala in relation to the execution of deed A 13 and then when the common possession of the property between them had become allegedly impracticable, the same notary in his capacity as an attorney at law had filed the partition action on behalf of Premapala against his former client Saddananda. From the above it is quite obvious that both the plaintiff and the defendant in the partition action together with the 3rd respondent were perpetrating a fraud to obtain a judgment in rem affecting the subject matter by manipulatively impressing upon court that they had a valid title to the property in question and that the common possession between them was impracticable.
The primary question that arises for determination in this application is whether the land in respect of which the petitioner alleges that her rights had got wiped out and the corpus in respect of which the impugned final decree had been entered are identical to one another. The position of the petitioner is that the reference made in the plaint to Kamala Seline Hettiarachchi (3rd respondent) as being the original owner of the corpus, is demonstrably false and the owner of the subject matter was her predecessor in title Samarakoon Arachchige Ana Perera, who by her last will had devised and bequeathed it to her. The plaintiff having described the corpus in his plaint has referred to a building on it, identified by means of assessment No: 131, at Gonahena.
As has been quite correctly pointed out by the learned counsel of the petitioner, house No: 131 is the tell-tale mark that led to the exposure of the deception practised by the defendant in collusion with the plaintiff. In this context, let us first examine the electoral registers marked along with the petition as A15. The electoral registers from the year 1967 to 1981 are admittedly applicable to premises No: 131, Gonahena. Samarakoon Arachchige Ana Perera has undisputedly lived in this house until her death. Even in the said Last Will No. 1880 of Ana perera that was duly proved and admitted to probate, in Testamentary Case No:28584/T, the residence of the testator is given as No: 131, Gonahena. The said house has been specifically referred to in deed marked A12 and also in the schedule to the plaint. This, doubtlessly strengthens the claim of the petitioner that Samarakoon Arachchige Ana Perera was the true owner of the corpus or at least the owner of house bearing No: 131.
It is also important to note the admission made by the defendant and his wife in their statement of objections. They admit that having come into possession of house No; 131 aforesaid after the death of the said Ana Perera, who had died on 04.05.1981. The possession of house No 131 by Ana perera as acknowledged by the defendant and 3rd respondent, the mysterious enthusiasm shown towards the execution of A12 and A13 in quick succession and the indecent haste shown in filing the partition action, in my view demand the conclusion that the partition suit complained of was a collusive action aimed at depriving the petitioner of the right of being heard with a view to obtain a final decree behind her back.
According to the petitioner, Ana perera was the owner of the subject matter at the relevant time. The defendant and 3rd respondent have admitted that Ana Perera occupied premises No: 131, until her death. Section 110 of the Evidence Ordinance provides that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms the negative. Learned counsel of the petitioner has submitted that Kamala Seline and her husband had remained tight- lipped and had not sought to deny, at least, for the sake of formality that Samarakoon Arachchige Ana Perera was the owner and that is misleading silence. Upon consideration of the attended circumstances, I am inclined to think that the attempts made by the plaintiff, the defendant and the 3rd respondent even in these proceedings to suppress the nature of possession of Ana Perera are suggestive of a dangerous ulterior motive.
The petitioner maintains that Samarakoon Arachchige Ana Perera devised all her properties to her by her last will No; 1880 dated 8th June 1980. The said last will, has been duly proved in testamentary proceedings in the District Court of Colombo in Case No: 28584/T and admitted to probate. It is quite pertinent to observe at this stage that a competing last will purporting to be that of the said Ana perera produced in the same proceedings by an intervenient petitioner, in which Kamala Seline Meemana Hettiarachchi (3rd respondent) the so-called original owner of the corpus figured as one of the beneficiaries, was rejected by court on the basis that it was a forgery.
The long drawn out dispute relating to the last Will of Ana Perera was conclusively resolved in the Supreme Court in favour of the petitioner, to whom all properties, movable and immovable of late Ana Perera were bequeathed. The petitioner maintains that she employed a dealer in real estate by the name Gamini Rajapaksa to clear the land which is the subject matter of the partition action for purpose of sale in blocks. The petitioner alleges that at this stage her agent Gamini Rajapaksa while clearing the land, was obstructed by Saddananda.
The Petitioner's position is that the corpus of partition action No: 36831 is in fact Talagahawatta alias Warakanatta. The plaint in the partition action No: 36831 described the corpus as Talagahawatta situated at Gonahena. The petitioner also states that Talagahawatta that has been inadvertently spelt in the forged last Will as ‘Kalagahawatta’ is also known as Warakanatta.
It is of much significance to note the events that took place after the petitioner employed her agent to sell the land. Setting out the series of incidents that followed, the petitioner states that the defendant having prevented her agent from clearing the land filed action No: 36619/L seeking a declaration of title in respect of the same land which was the subject matter of the partition action, deliberately describing the land as Warakanatta, thus conveniently omitting to identify the same as Talagahawatta.
Consequently, what remains to be determined is whether the corpus in the partition action and the subject matter of the rei-vindicatio action are identical. The land in action No: 36619/L is depicted as lot 01 in plan No: 1062/L. The corpus of the partition suit is depicted in the final plan No: 937. The extent of the corpus shown in the final plan of partition is 3 roods 34.3 perches while the extent of lot 01 in plan 1062/L is 3 roods 35.1 perches. The difference in extent is 00.08 perch which undeniably falls within the negligible margin. As far as the extent of the lands shown in both plans are concerned, it demands the assumption that the lands depicted for purpose of both suits are almost identical to one another and one and the same.
In the surveyor's report appended to plan no: 1062/L, marked in these proceedings of consent, on 23.11.2007, Saddananda has claimed the subject matter of action in L/36619, by virtue of the final decree in partition Case in question. This I think renders it self-explanatory that the corpus in the partition suit and the subject matter of the rei vindicatio action are identical.
As regards the original ownership of the subject matter of the partition action the defendant, plaintiff and 3rd respondent have taken up different positions diametrically opposed to each other. In L 36619/L the plaintiff (Saddananda) has taken up the position that he is the original owner of the subject matter of that action. For reason of his own, he has made no mention of Kamala Seline who figured as the original owner in the partition action.
As was urged on behalf of the petitioner the conduct of Saddananda and others, acting in concert and collusion is contemptible not so much of their attempt to rob the petitioner of the land which has been devised to her by a last will, but because of their heinous act in showing the cheekiest contempt for the courts of justice - by attempting to make use of the courts as instruments of fraud.
In Attorney-General vs. Podisinghe 51 NLR 385 it was held inter alia the exceptional circumstances in which an application in revision should be entertained were spelt out to include circumstances where there has been a miscarriage of justice or where a strong case for the interference of the Supreme Court has been made out by the petition or when the applicant was unaware of the order made by the Court of Appeal.
The respondents to this application have vehemently opposed the exercise of revisionary powers of this court in relation to the to the application to set aside the impugned decrees, based on the grounds of laches and/or delay in invoking the revisionary jurisdiction of this court, alleging that such delay or laches are attributable to the petitioner. No doubt there has been a delay in invoking the revisionary jurisdiction of this Court. In so far as it transpires from the documents produced, the final decree in the partition action has been entered on 22.08.1996. The revisionary jurisdiction of this Court has been invoked by the petitioner on 09.07.2002. Hence the interval between the two events counts a period of 06 years. The question then arises for consideration is whether owing to the period of interval between the two events, the application for revision should stand dismissed, notwithstanding the unimaginable magnitude of fraud and collusion perpetrated by the beneficiaries of the said decrees. A careful scrutiny of the series of incidents and several protracted litigations that had taken place after the death of Ana Perera, would reveal that the respondents to this application were determined to circumvent the judgment in the matter of the testamentary case of Ana Perera, by hook or by crook. In the achievement of their aspiration, the respondents had not shown the least consideration or respect to court.
In this respect I consider it as being appropriate to quote Sir James Stephen from his “History of the Criminal Law of England” (vol. II. p. 121) where he observed as follows:
" I shall not attempt to construct a definition of ' fraud ' which will meet every case which might be suggested, but there is little danger in saying that whenever the words ' fraud ' or ' intent to defraud ' or 'fraudulently' occur in the definition of a crime, two elements at least are essential to the commission of the crime, namely, first, deceit or an intention to deceive, or in some cases where secrecy; and secondly, either actual injury or possible injury, or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy . . . . . . . . . . . . A practically conclusive test as to the fraudulent character of a deception for criminal purposes is this: ' Did the author of the deceit derive any advantage from it which he could not have had if the truth had been known? If so, it is hardly possible that that advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud".
It is my considered view that the statement of Sir James Stephen, can most appropriately be applied to the respondents to this application and they would not have derived any advantage through their effort, had the petitioner was made aware of the partition suit as required by section 4(1) (c) of the Partition Act or the learned district Judge was enlightened as to the background of the litigation the parties have had over the matter of the estate of Ana perera. For purpose of completeness, let me reproduce section 4(1) (c) of the Partition Act, to ascertain the nature of the responsibility the said Act casts on the plaintiff. It reads as follows.
4(1) In addition to the particulars…. the plaint…. shall contain the following particulars.
4(1) (c) the names and addresses of all persons who are entitled or claim to be entitled to any right, share, or interest to, of, or in that land or to any improvements made or effected on to that land and the nature and extent of any such right, share, interest or improvements, so far as such particulars are known to the plaintiff or can be ascertained by him. (Emphasis is mine).
It is also useful at this stage to advert to the deed of gift A12 in which a recital has been made as to the original ownership of the subject matter. Very strangely this deed bears a “prior registration” reference indicating that the notary had invited the land registry to register the said deed in continuation of the Folio referred to therein. What does this really mean? The fact that the notary had given the prior registration reference in A 12 means that there had been other instruments affecting the same land and registered in the Land Registry prior to the execution of A 12. The learned district Judge in the sacred discharge of his duty to investigate the title to the corpus appears to have ignored the prior registration reference given in A 12. It is lamentable that the registered attorney at law of the plaintiff, who had been very much involved in the institution of the partition action, has failed to bring this to the notice of the learned district Judge.
When instituting a partition action, the law expects the plaintiff to signify the original owner/owners of the corpus. However, such information need not necessarily be stated with such accuracy, as it is open for anyone, if necessary, to go back to yet an earlier owner in point of time, provided that the name of an original owner is set out with reasonable carefulness. Our courts by and large are accustomed to tolerate shortcomings arising in regard to such disclosures. In this respect, usual it has been for courts to adopt a realistic approach than to be cumbersomely legalistic. However the facts and background peculiar to the partition action in hand, in no way can justify such a flexible attitude. Hence the plaintiff cannot be excused or tolerated for fabricating evidence regarding the original ownership to achieve the selfish objectives of the defendant and his wife.
As regards the alleged delay in filing the application for revision, the petitioner has placed before court the impossibility of invoking the jurisdiction earlier than what she in fact had done. She has taken up the position that she did not know of the institution of the partition action or the entering of the judgment/interlocutory decree/final decree in the partition case to quickly invoke the revisionary powers of this Court. For this reason, as far as the petitioner is concerned, the alleged delay cannot said to be an undue delay and therefore should not be held to prejudice the rights so long as she had no notice of the partition suit or its termination. (Emphasis is mine)
The maxim “Lex non logit ad impossibilia” in my opinion to a great extent can save the petitioner of the embarrassment of having to face the allegation of delay she is blamed. The maxim which favaours a person of the type of predicament the petitioner was placed, expects nothing impossible from her in the performance of the law. Maxwell (12th edition) on Interpretation lays down the guide line that the law must be understood as dispensing with the performance of what is prescribed when performance of what is prescribed is impossible. In the light of the above maxim it is not only impossible but utterly irrational to expect from the petitioner to have invoked the revisionary powers of this Court earlier than she did, when she had no knowledge of any fraud or collusion resulting in any form of miscarriage of justice.
Learned Counsel on behalf of the petitioner contends that the facts in case No: 36831/P satisfy the criteria, spelt out in 51 NLR 385. He has urged that there is a patent miscarriage of justice and in any event, it is certain that the respondents are not the true owners of the corpus of the partition action No: 36831/P because they had misled the District Court by a fabricated pedigree.
For instance in Harding vs. Price 1948 1RB 695- a trailer of vehicle collided with and damaged a stationary car. Driver was unaware that the accident had happened and so did not report it to the police as required by section 22(2) of the Road Traffic Act 1930. The driver's defence was that he was unaware of the accident owing to the noise of the vehicle. His defence was upheld. The reasoning adopted by Lord Goddard C.J was that the driver concerned cannot report something of which he had no knowledge. It was stressed in the judgment in that case that any other view would lead to calling upon the man to do the impossible.
In Seheeda Umma Vs. Haniffa 1999 - 1 SLR 150 it was held that the Court of Appeal should act in revision, when there is a grave irregularity or a miscarriage of justice, even in a case where revisionary powers have not been even invoked by the Petitioner.
It is trite law that the protection given to partition decrees from being attacked on the grounds of fraud, collusion, omissions, defects, and of the failure to make “persons concerned" parties to the action should not be construed as a licence to flout the provisions of the partition law and to deprive others of their property rights to enrich conveniently at the expense of the victims. In my opinion no court should not ever hesitate even for a moment to appropriately use its revisionary powers to give relief where a miscarriage of justice has occurred. The miscarriage of justice that has resulted in this case is of such magnitude, in respect of which allowances cannot easily be made. Fraud can no longer be considered not merely as a challenge to the party affected but above all constitutes an affront to the dignity and authority of the institutions vested with the due administration of justice.
For the foregoing reasons, I consider it as being most appropriate, in the circumstances to set aside the proceedings, judgment, interlocutory decree and final decree entered in the partition action. Accordingly, I allow the revision application. The partition action of the plaintiff therefore shall stand dismissed.
The petitioner is awarded costs of this application against the plaintiff and defendant.
Sgd.
Judge of the Court of Appeal.
Kwk/-
********
I do hereby certify that the foregoing is a true copy of the judgment dated 24.11.2008 filed of record in C.A. Rv. Application No.1186/2002.
Typed by :
Compared with :
Chief Clerk- Court of Appeal
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