PARTITION LAW - CONSOLIDATED - with cases reported in LAW LAKA
SHORT
TITLE.
1. This Law may be cited as the Partition Law.
INSTITUTION OF PARTITION ACTION AND INCIDENTAL PROCEDURE
2. Where any land belongs in common to two or more owners,
any one or more of them, whether or not his or their ownership is subject to
any life interest in any other person, may institute an action for the
partition or sale of the land in accordance with the provisions of this
Law.
APPROPRIATE COURT.
3. (1) Every partition action shall be instituted by
presenting a written plaint to the District Court, within the local limits of
whose jurisdiction the land which is the subject-matter of the action is
situated in whole or in part.
(2) Where it is alleged to be uncertain within the local
limits of the jurisdiction of which of two or more courts any land is situated,
any one of those courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to
entertain and dispose of any partition action relating to the land; and such
action so entertained and disposed of shall for all purposes be deemed to be
and to have been duly instituted in a court of competent jurisdiction.
REQUISITES OF PLAINT.
4.(1) In addition to the particulars
required to be stated in a plaint by the Civil Procedure Code, every plaint
presented to a court for the purpose of instituting a partition action shall
contain the following particulars:-
(a) the name, if any, and the extent and
value of the land to which the action relates,
(b) a description of that land by
reference to physical metes and bounds or by reference to a sketch, map or plan
which shall be appended to the plaint;
(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 or
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; and
(d) a statement setting out, with
reference to a pedigree which shall be appended to the plaint, the devolution
of the title of the plaintiff, and, where possible, the devolution of the title
of every other person disclosed in the plaint as a person entitled or claiming
to be entitled to that land, or to any right, share or interest to, of, or in
that land.
(2) There shall be appended to every plaint presented to a
court for the purpose of instituting a partition action, a memorandum
substantially in the form set out in the Second Schedule to this Law,
nominating in accordance with section 81, a person to be the legal
representative of the plaintiff for the purposes of the action, in the event of
his death pending the final determination of the action.
NECESSARY
PARTIES.
5. The plaintiff in a partition action shall include in his
plaint as parties to the action all persons who, whether in actual possession
or not, to his knowledge are entitled or claim to be entitled.
(a) to any right, share or interest to, of, or in the land to
which the action relates, whether vested or contingent, and whether by way of
mortgage, lease, usufruct, servitude, trust, life interest, or otherwise, or
(A) to any improvements made or effected on or to the land:
Provided that in the case of a mortgage, the mortgagee or any person claiming
any interest under him shall be included as a party only if he has registered
an address for service of legal documents in terms of sections 6 and 28 of the
Mortgage Act ;
Provided further that if such mortgagee or person aforesaid
claims under an instrument executed more than fifteen years prior to the
institution of the action, he shall not be a necessary party to such action,
unless he has registered an address for service of legal documents in terms of
the aforesaid provisions of the Mortgage Act within a period of ten years prior
to the date of institution of the action.
LIS PENDENS TO BE FILED WITH PLAINT.
6.(1) The plaintiff in a partition action shall file or cause
to be filed in court with the plaint-
(a) where the land to which the action
relates is situated in one registration district, an application or
registration of the action as a Lis pendens addressed to the Registrar of Lands
of that district, or (b) where the land
is situated in two or more registration districts, a separate application for
registration of the action as a Lis pendens addressed to the Registrar of Lands
of each of those districts.
(2)
The
application or each of the applications referred to in subsection (1) of this
section shall be in triplicate and marked "original",
"duplicate", and "triplicate" and substantially in the form
prescribed by the Registration of Documents Ordinance and shall contain a blank
space for the insertion of the number to be assigned to the action by the
court.
(3)
Notwithstanding
anything to the contrary in the Registration of Documents Ordinance or in any
regulation made thereunder, no fee shall be charged for the registration of a
partition action as a Lis pendens under that Ordinance.
FAILURE TO COMPLY WITH
PROVISIONS OF SECTION 4 5 OR 6.
7. Where the plaintiff in a partition action fails to comply
with the requirements of section 4, section 5 or section 6, the court may-
(a)
return
the plaint so that the plaintiff may, then and there or within such time as may
be fixed by the court, comply with those requirements; or
(b)
reject
the plaint: Provided that nothing herein contained shall affect the right of
the court to reject the plaint on any ground specified in section 46 of the
Civil Procedure Code.
PROCEDURE ON ACCEPTANCE OF THE PLAINT.
8. (1) Where the plaint in a partition action, is accepted,
the court shall forthwith –
(a)
cause
to be inserted in each copy of the application for the registration of the
action as a lis pendens, a reference to the number assigned by the court to the
action ;
(b)
cause
to be transmitted forthwith, and in any event not later than two weeks from the
date of acceptance of the plaint, the application in triplicate to the
Registrar of Lands of each Land Registry in which the action is to be
registered as Lis pendens ;
(c)
fix a
date, being a date not later than seven weeks from the date of acceptance of
the plaint, for the return of the registered lis pendens, by the Registrar of
Lands:.
Provided that the Court may, if in its opinion the
circumstances of the case so require, extend the date for the return of the lis
pendens after registration;
(d)
fix a
date being a date not later than seven weeks from the date of acceptance of the
plaint, on or before which the plaintiff shall deposit in Court such estimated
costs of the preliminary survey of the land to which the action relates as may
be determined by Court.
In estimating the costs of such preliminary survey, the court
shall have regard to such rates as may be prescribed by regulations.
FAILURE TO DEPOSIT ESTIMATED COSTS OF PRELIMINARY
SURVEY.
9. Where
the plaintiff in a partition action fails to deposit, before the date or extended
date fixed for the purpose, such estimated costs of the preliminary survey as
are determined by the court under section 8, the court may dismiss such action.
DETERMINATION OF
ACTUAL COSTS OF PRELIMINARY SURVEY.
10. (1) After the preliminary survey of the land to which the
partition action relates is made, the court shall determine the actual costs of
such survey in accordance with the rates prescribed under section 8 and if the
actual costs so determined are more than the estimated costs determined under
section 8, shall make order specifying the party by whom, and the date on or
before which, the amount of the difference between such actual costs and such
estimated costs shall be deposited in court. The court may, for sufficient
cause, make a further order or orders extending the time for the deposit of
such amount.
(2) If the amount due to a surveyor as the costs of the
survey of a land to which a partition action relates is not paid as ordered by
the court, it shall be lawful for the court to direct the recovery thereof in
the same action as though the order for the payment of that amount were a
decree in favour of that surveyor against the party ordered to pay that amount.
REGISTRAR OF
LANDS TO REPORT TO COURT REGISTRATION OF PARTITION ACTION AS A LIS
PENDENS.
11. A
Registrar of Lands to whom an application for the registration of a partition
action as a lis pendens has been transmitted by a court under section 8 shall,
upon registration of the action as a lis pendens, return to the court the
triplicate of the application duly endorsed in the manner prescribed by the
Registration of Documents Ordinance on or before the date fixed by the court
for the return of such triplicate, and shall cause a copy thereof to be sent by
registered post to the registered attorney of the plaintiff, or where there is
no such registered attorney, to the plaintiff.
DECLARATION BY
ATTORNEY-AT-LAW AND PAPERS TO BE FILED.
12. (1) After a partition action is registered as a lis
pendens under the Registration of Documents Ordinance and after the return of
the triplicate referred to in section 11, the plaintiff in the action shall
file or cause to be filed in court a declaration under the hand of an
attorney-at-law certifying that all such entries in the register maintained
under that Ordinance as relate to the land constituting the subject-matter of
the action have been personally inspected by that attorney-at-law after the
registration of the action as a lis pendens, and containing a statement of the
name of every person found upon the inspection of those entries to be a person
whom the plaintiff is required by section 5 to include in the plaint as a party
to the action and also, if an address of that person is registered in the
aforesaid register, that address.
(2) The plaintiff in a partition action shall, together with
the declaration referred to in subsection (1) of this section, file or cause to
be filed in court-
(a) if the aforesaid declaration
discloses any person who is not mentioned in the plaint as a party to the
action but who should be made such a party under section 5, an amended plaint
including therein that person as a party to the action, which amended plaint
shall be deemed for all purposes to be the plaint in the action;
(b) as many summonses as there are
defendants, each such summons being a summons substantially in the form set out
in the Second Schedule to this Law and containing the name and address of the
defendant on whom that summons is to be served ;
(c)
if the
language of any defendant is not the language of the court, a translation of
the summons in that language;
(d) as many copies of the plaint as there
are defendants, with a translation thereof in the language of each defendant
whose language is not the language of the court; or, with the leave of the
court, where compliance with this requirement involves an expense which appears
to the court excessive and unnecessary in the circumstances, a concise
statement of the relevant paragraphs of the plaint relating to each defendant
with translations thereof in the language of any defendant whose language is
not the language of the court;
(e) one copy of the plaint certified by
the registered attorney as a true copy, such copy being the copy to be attached
to the commission issued to the surveyor who is to make the preliminary survey
of the land to which the action relates;
(f)
as many
copies of a notice substantially in the form set out in the Second Schedule to
this Law as there are lands to which the action relates together with
translations thereof in the language of any defendant whose language is not the
language of the court;
(g) such number of copies of the
aforesaid notice and of each translation thereof referred to in paragraph (f)
of this subsection as would enable the transmission of one copy of such notice
and one copy of each such translation to the grama seva niladhari of the
division or of each of the divisions in which the land or each of the lands to
which the action relates is situate;
(h) a precept to the Fiscal substantially
in the form set out in the Second Schedule to this Law.
(3) If the plaintiff without sufficient cause fails to comply
with the provisions of the foregoing subsections of this section, the court may
dismiss the action.
2. Somawathie v Madawela [1983] 2 Sri LR
15, [1986] BLR 233, SC 3. 3. Soysa v Silva [2000] 2 Sri LR 235
(CA) [160]
ISSUE AND
SERVICE OF SUMMONS AND PUBLICATION
13. Issue of summons.
(1)
Where
the Court is satisfied that a partition action has been registered as a lis
pendens under the Registration of Documents Ordinance, that the estimated costs
of the preliminary survey of the land to which the action relates have been
deposited in Court and that the plaintiff in the action has complied with the
provisions of section 12, the Court shall order that such summonses,
translations of summonses, copies and translations of the plaint or the concise
statements, as the case may be, copies of the notices and copies of the
translations of the notices filed in court under paragraphs (b), (c), (d), (f)
and (g) of subsection (2) of section 12 be sent by registered post to the
defendant and the respective Grama Niladharis; and that copies of the notice
filed under paragraph (f) of subsection (2) of section 12, together with copies
of translations thereof be transmitted to the Fiscal for exhibition and
proclamation as provided for in subsection (3) of section 15;
(2)
When
making an order under subsection (1) of this section, the court shall appoint a
date on or before which the defendants are required to file their statements of
claims, if any, and to comply with the other requirements of the summons. The
date so appointed shall be fixed with reasonable regard to the time ordinarily
required for the due service of the summons and shall be a date not earlier
than thirty days after the initial date fixed for the return to the commission
for preliminary survey.
(3)
The
Registrar or any other officer of the court shall insert the date appointed by
the court under subsection (2) of this section in such summonses, translations
of summonses, copies of the notice and copies of the translations of the notice
as are filed in court under subsection (2) of section 12, shall sign them and
cause them to be sent by registered post
(4)
If the
language of any defendant is not the language of the court there shall be
attached to the summons sent by registered post to that defendant a translation
of the summons and a translation of the plaint or concise statement, as the
case may be, in the language of that defendant.
SERVICE OF SUMMONS.
14. The provisions of the Civil Procedure Code relating to
the service of summons shall apply to the service of summons in a partition
action.
PUBLIC NOTICE OF
INSTITUTION OF PARTITION ACTION.
15. (1) Where the court orders the service of summons on the
defendants in a partition action, the court shall order that a copy of the
notice and a copy of each translation thereof filed in court under paragraph
(g) of subsection (2) of section 12 be sent by registered post to the Grama
Niladhari of the division or of each of the divisions in which the land or each
of the lands to which the action relates is situated.
(2) Every grama seva niladhari to whom
any copy of a notice and any copy of a translation thereof are sent by
registered post under subsection (1) of this section shall cause such copies to
be exhibited in a conspicuous position at his office for a period of not less
than thirty days, and shall forward to court a report to that effect
substantially in the form set out in the Second Schedule to this Law.
(3) The Fiscal shall cause-
(a)
a copy
of the notice transmitted to him under subsection (1) of section 13 to be exhibited
in a conspicuous position on the land or on each of the lands to which the
notice relates, and
(b)
the
contents of the notice to be orally proclaimed, after beat of tom-tom, on such
land or on each such land and at some public place in the neighbourhood of such
land or of each such land or in the village in which such land or each such
land is situated. The costs of such proclamation shall be borne by the
plaintiff in the first instance and shall be recoverable " pro rata
".
PRELIMINARY
SURVEY
16. Commission to survey land.
(1)
Where
the court orders the service of summonses on the defendants in a partition
action, the court shall forthwith order the issue of a commission to a surveyor
directing him to survey the land to which the action relates and to make due
return to his commission on a date to be fixed therein, which date shall be a
date earlier than thirty days prior to the date specified in the summons:
Provided that the court may on application made by the
Commissioner and for reasons to be recorded, extend, from time to time, the
date fixed in the Commission for the return thereof, so however, that each such
extension shall not exceed sixty days.
(2)
The
commission issued to a surveyor under subsection (1) of this section shall be
substantially in the form set out in the Second Schedule to this Law and shall
have attached thereto a copy of the plaint certified as a true copy by the
registered attorney for the plaintiff. The court may, on such terms as to costs
of survey or otherwise, issue a commission at the instance of any party to the
action, authorizing the surveyor to survey any larger or smaller land than that
pointed out by the plaintiff where such party claims that such survey is
necessary for the adjudication of the action.
(3)
Where
the court orders the issue of a commission to a surveyor under subsection (1)
of this section, it shall in addition order the issue to such surveyor of such
number of copies of a notice substantially in the form t out in the Second
Schedule to this Law together with the translations thereof, as the court may
deem sufficient in the circumstances, to be served on any person (not being a
party to the action) or his agent who at the time of the survey may prefer any
claim to the land to which the action relates.
(4)
The
surveyor shall serve the copy of the notice referred to in subsection (3) of
this section on any person (not being a party to the action) or his agent who
at the time of the survey prefers any claim, by personally tendering to such
person or his agent such copy together with the translation thereof in the
language of such person or his agent whose language is not the language of the
court.
(5)
The
surveyor shall obtain from the person on whom a notice is served under
subsection (4) of this section an acknowledgement of the receipt of such notice
by signature or thumb impression of such person or his agent and the date of such
service.
(6)
Where
any person on whom a notice is served under subsection (4) of this section is
subsequently added as a defendant to the action, the notice served on such
person or his agent by the surveyor under subsection (4) of this section shall
be deemed to be a summons served on such person in such action under the
provisions of this Law, and no further service of summons on such person shall
be necessary.
SURVEY.
17. (1) On receipt of his commission, the surveyor shall fix
a date for commencing the survey of the land referred to therein and shall, not
less than fourteen days before that date, issue notice in writing to all the
parties named in the plaint that he proposes to commence the survey of the land
on that date. Such notice to any party shall be sent to him by registered post
to the address stated in the plaint.
(2) In addition to the written notice required to be issued
to the parties under subsection (1) of this section, the surveyor shall, not
less than fourteen days before the date fixed by him for commencing the survey,
cause the fact that he will commence the survey on that date to be orally
proclaimed, after beat of tom-tom, on the land to be surveyed.
RETURN TO SURVEYORS
COMMISSION.
18. (1) The surveyor shall duly execute the commission issued
to him and, in doing so shall, where any boundary of the land surveyed by him
is undefined, demarcate that boundary on the ground by means of such boundary
marks as are not easily removed or destroyed and shall, on or before the date
fixed for the purpose, make due return thereto and shall transmit to the court-
(a) a report, in duplicate, substantially in the form set out
in the Second Schedule to this Law, verified by affidavit stating-
(i)
the
dates on which notice of survey was issued to the parties;
(ii)
the
nature of the land surveyed and of any buildings, walls, wells, trees,
plantations, fences and other improvements thereon;
(iii)
whether
or not the land surveyed by him is in his opinion substantially the same as the
land sought to be partitioned as described in the schedule to the plaint;
(iv)
the
parties to the action who were present at the survey, and the name and address
of any person (not being a party to the action) who, at the time of the survey,
preferred any claim, the nature of such claim and the date of service of the
notice referred to in subsection (3) of section 16 ;
(v)
the
persons, if any, who pointed out the land to be surveyed ;
(vi)
the
result of his investigation of any particular fact or matter specifically
referred to in the terms of his commission;
(vii) the existing means of access to the
land from the nearest public road; and
(viii)any fact, matter -or circumstance relating to his survey or
to the land surveyed which, in his opinion, may be necessary for, or prove of
assistance in, the adjudication of the partition action ;
(b) a plan, in duplicate, of the land surveyed, verified by
affidavit showing-
(i) the boundaries of any divisions of
the land subsisting at the time of his survey, such divisions being indicated
by appropriate letters or numerals;
(ii) the boundaries of any land belonging
to the State which may fall within the land surveyed by him;
(iii) the locations of all buildings, walls
and wells, such locations being indicated by appropriate letters or numerals;
(iv) the trace or course of any road, path
or stream within the boundaries of the land ; and
(v) any other physical feature of or on
the land which, in his opinion, may be necessary for, or prove of assistance
in, the adjudication of the partition , action; and
(c)
a
certified copy of his field notes.
(d) the acknowledgement of the receipt of
the notice served on any person referred to in subsection
(4) of section 16, together with the remaining copies and
translations of such notice;
(2)
The
documents referred to in paragraphs (a), (b) and (c) of subsection (1) of this
section may, without further proof, be used as evidence of the facts stated or
appearing therein at any stage of the partition action :
Provided that the court shall, on the
application of any party to the action and on such terms as may be determined
by the court, order that the surveyor shall be summoned and examined orally on
any point or matter arising on, or in connexion with, any such document or any
statement of fact therein or any relevant fact which is alleged by any party to
have been omitted therefrom.
(3)
(a)
Notwithstanding anything in subsection (2) of this section, the court, either
of its own motion or on the application of a party to the action, may, before
using the copy of the surveyor's field notes and the plan, cause them to be
verified and to be certified as correct or, where such field notes and plan are
incorrect, cause fresh field notes and a fresh plan to be made by the
SurveyorGeneral or by any officer of his department authorized by him in that
behalf, and may for that purpose issue a commission to the Surveyor-General.
(b)
As soon
as may be after the receipt by the Surveyor-General of any commission issued
under this subsection, the Surveyor-General or any officer of his department
authorized by him in that behalf shall verify the field notes and the plan
received with the commission and shall, where they are correct, certify them to
be correct or, where they are incorrect, make fresh field notes and a fresh
plan, and the Surveyor-General shall make a due return to the commission with
the field notes and the plan so certified or with the fresh field notes and the
fresh plan, in duplicate.
(c)
The
field notes and the plan certified as correct under paragraph (b) of this
subsection, or the fresh field notes and the fresh plan, in duplicate furnished
by the Surveyor- General under that paragraph, shall be used for the purposes
of subsection (2) of this section at all stages of the action subsequent to the
receipt by the court of the return made by the Surveyor-General under that
paragraph.
(d)
The
Surveyor-General, or any officer of his department authorized by him in that
behalf, shall, for the purposes of the execution of any commission issued under
this subsection, have power to inspect or survey the land after giving not less
than seven days' notice to the parties to the action of his intention so to do.
(e)
The
Surveyor-General shall not be entitled to the reimbursement of the costs
incurred in the execution of a commission issued to him under this subsection
unless the court, upon the amount of such costs being certified to the court by
the Surveyor- General, makes order specifying the party by whom, and the date
on or before which, that amount shall be deposited in court.
(f)
The
party depositing the amount of the Surveyor-General's costs shall be given
credit therefor in such manner as the court may direct.
(g)
If the
costs due to the Surveyor- General are not deposited as ordered by the court,
it shall be lawful for the court to direct the recovery thereof in the same
action as though the order for the payment of such costs were a decree in
favour of the State against the party ordered to pay such costs.
PROCEDURE
AFTER SERVICE OF SUMMONS
19. Statements of claims; disclosure of mortgages and leases,
disputes as to corpus.
(1) On or before the date specified in the summons issued in
a partition action or on or before such later date as the court may fix for the
purpose-
(a)
any
defendant in the action may file or cause to be filed in court a statement of
claim setting out the nature and extent of his right, share or interest to, of
or in the land to which the action relates and shall, if he disputes any
averment in the plain relating to the devolution of title, file or cause to be
filed in court, together with his statement of claim, a pedigree showing the
devolution of title;
(b)
any
party to the action whose right, share or interest to, of or in the land is
mortgaged or leased by an instrument registered under the Registration of
Documents Ordinance shall disclose or cause to be disclosed to the court the
existence of the mortgage or lease and the name and address of the mortgagee or
lessee; and
(c)
every
defendant in the action shall disclose or cause to be disclosed to the court
the name and address of every person, not being a party to the action, who to
his knowledge has any right, share or interest to, of or in the land.
(d)
every
defendant in the action shall file or cause to be filed, in Court, a
memorandum, substantially in the form set out in the Second Schedule to this
Law, nominating in accordance with section 81, a person to be his legal
representative for the purposes of the action, in the event of his death pending
the final determination of the action.
(2) (a) Where a defendant seeks to have a larger land than
that sought to be partitioned by the plaintiff made the subject-matter of the
action in order to obtain a decree for the partition or, sale of such larger
land under the provisions of this Law, his statement of claim shall include a
statement of the particulars required by section 4 in respect of such larger
land ; and he shall comply with the requirements of section 5, as if his
statement of claim were a plaint under this Law in respect of such larger land.
(b)
Where
any defendant seeks to have a larger land made the subject-matter of the action
as provided in paragraph (a) of this subsection, the court shall specify the
party to the action by whom and the date on or before which an application for
the registration of the action as a Lis pendens affecting such larger land
shall be filed in court, and the estimated costs of survey of such larger land
as determined by court shall be deposited in court.
(c)
Where
the party specified under paragraph (b) of this subsection fails to comply with
the requirements of that paragraph, the court shall make order rejecting the
claim to make the larger land the subject-matter of the action, unless any
other party, in whose statement of claim a similar claim shall have been set
up, shall comply therewith on or before the date specified in paragraph (b) or
within such extended period of time that the court may, on the application of
any such party, fix for the purpose.
(d)
After
the action is registered as a Lis pendens affecting the larger land and the
estimated costs of the survey of the larger land have been deposited in court,
the court shall-
(i)
add as
parties to the action all persons disclosed in the statement of claim - of the
party at whose instance the larger land is being made the subject-matter of the
action as being persons who ought to be included as parties to an action in
respect of such larger land under section 5; and
(ii)
proceed
with the action as though it had been instituted in respect of such larger
land; and for that purpose, fix a date on or before which the party specified
under paragraph (b) of this subsection shall, or any other interested party
may, comply with the requirements of section 12 in relation to the larger land
as hereinafter modified.
(e) Where the larger land is made the subject-matter of the
action, the provisions of sections 12, 13, 14 and 15 shall, mutatis mutandis,
apply as if the statement of claim of the party seeking a partition or sale of
the larger land were the plaint in the action; and-
(i) such party shall with his declaration
under section 12, in lieu of an amended statement of claim, file an amended
caption including therein as parties to the action all persons not mentioned in
his statement of claim, but who should be made parties to an action for the
larger land under section 5, and .such amended caption shall be deemed for all
purposes to be the caption to his statement of claim in the action;
(ii) summons shall be issued on -all
persons added as parties under paragraph (d) of this subsection and all persons
included as necessary parties under sub-paragraph (i) hereof;
(iii) notice of the action in respect of
the larger land shall be issued on all parties to the action in the original
plaint together with a copy of the statement of claim referred to above;
(iv) the provisions of section 20 shall
apply to new claimants or parties disclosed thereafter.
(f)
If the
party specified by the court under paragraph (b) of this subsection or any
other interested party fails or neglects to comply with the provisions of
section 12, as hereinbefore modified on or before the date specified in that
paragraph, the court may make order dismissing the action in respect of the
larger land.
(g)
Where
the requirements of section 12 as hereinbefore modified are complied with, the
court shall order summonses and notices of action as provided in paragraph (e)
of this subsection to issue and shall also order the issue of a commission for
the survey of the larger land, and the provisions of sections 16, 17 and 18
shall accordingly apply in relation to such survey.
(3) (a) Every party to a partition action, not appearing by a
registered attorney, shall on or before the date or later date referred to in
subsection (1) of this section deliver to the Registrar a memorandum
substantially in the form set out in the Second Schedule to this Law setting
out an address (hereinafter referred to as the " registered address")
for the service on him of the notice under section 24 and any other legal
documents required to be served on a party under the provisions of this Law,
unless otherwise provided. Every party shall with such memorandum tender stamps
to the value required to cover the cost of postage by registered post of the
notice under section 24.
(b)
Where a
party to a partition action appears by a registered attorney the address of the
registered attorney contained in the proxy shall be deemed to be the registered
address of such party. And such registered attorney shall on or before the date
or later date referred to in subsection (1) of this section, tender to the
Registrar stamps to cover the cost of postage by registered post of the notice
under section 24.
(c)
The
dispatch by registered post to the registered address of a party of the notice
under section 24 and of any other legal document required to be served on him,
shall be deemed to be sufficient service. In this subsection “legal
document" includes all processes, pleadings, petitions, affidavits,
notices, motions and other documents, proceedings and written communications.
(d)
The
Registrar shall keep and maintain a list of the registered addresses furnished
and an account of the stamps tendered to him under this subsection, which list
and account shall be filed as pan of the record of the case.
NOTICE OF PARTITION ACTION TO PERSONS DISCLOSED.
20. (1) The court shall order notice of a partition action to
be sent by registered post-
(a)
to
every claimant (not being a party to the action) who is mentioned in the report
of the surveyor under subsection (1) of section 18, and
(b)
to
every person disclosed under paragraph (c) of subsection (1) of section 19 by a
defendant in the action.
(2) (a) The plaintiff in a partition action shall file in
court the notices which are to be sent under paragraph (a) of subsection (1) of
this section.
(b)
A
defendant who discloses any person referred to in paragraph (b) of subsection
(1) of this section, shall, unless the court otherwise orders, file in court
the notice to be sent under that subsection to that person.
(c)
Every
notice under subsection (I) of this section shall be substantially in the form
set out in the Second Schedule to this Law.
(3)
Any
person receiving notice under subsection (1) of this section shall not be added
as a party to the action unless he applies by motion in writing to be added on
or before the date specified in the notice.
(4)
Where
such person is added as a party, the court shall forthwith appoint a date on or
before which such party shall file his statement of claim.
(5)
The
provisions of section 69 shall not apply to a person to whom notice has been
sent under this section.
ISSUE OF COPIES OF PLAINT AND STATEMENTS OF CLAIMS TO
PARTIES.
21. Every person named in the plaint or added as a defendant,
or desiring to be added as a party to a partition action shall be entitled, on
payment of the charges prescribed for the issue of certified copies, to obtain
from the court a copy of the plaint or of any statement of claim in that
action.
FAILURE TO PRODUCE SEGMENTS OF TITLE AT TRIAL.
22. Every party to a partition action
who fails to produce in court at the trial of the action any document relating
to his title shall, if the court so orders on being satisfied that such document
is material for establishing the title of such party, be liable to pay the cost
incurred by any other party to the action in procuring such document or in
furnishing to the court proof of the contents thereof.
23. (1) Every party to a partition action shall, not less
than thirty days before the date of the trial of the action, file or cause to
be filed in court a list of documents on which he relies to prove his right,
share or interest to, of or in the land together with an abstract of the
contents of such documents. No party shall, except with the leave of the court
which may be granted on such terms as the court may determine, be at liberty to
put any document in evidence on his behalf in the action if that document is
not specified in a list filed as aforesaid. Nothing in this subsection shall
apply to documents produced for cross-examination or handed to a witness merely
to refresh his memory.
(2)
Any
party to a partition action who desires to inspect any document specified in
the list of documents filed in court under subsection (1) of this section by
any other party to the action may, by motion exparte, obtain an order of court
to that other party to produce that document at such place and within such time
as may be specified in the .order, for the inspection of the first- mentioned
party or of his registered attorney and to permit such party or registered
attorney to take copies thereof. The party obtaining such order may himself
serve or cause to be served such order on that other party.
(3)
Where
any party to a partition action to whom an order under subsection (2) of this
section is issued, fails to comply with that order in regard to any document to
which that order relates, he shall not afterwards be at liberty to put that
document in evidence on his behalf in the action unless he satisfies the court
that he had sufficient cause for not complying with the order.
(4)
In this
section, “documents" shall mean deeds, survey plans or other writings upon
which any claim of title is based.
CALLING CASE TO FIX DATE OF TRIAL.
24. (1) After the expiry of the period fixed for the filing
of statements of claim, and after the return of the surveyor to the commission
for preliminary survey has been received, the court shall appoint a date for
the case to be called in open court in order to fix the date of trial of the
action and shall give notice in writing of such date by registered post to all
parties who have furnished a registered address and tendered the costs of such
notice as provided by subsection (3) of section 19.
(2) On the day appointed under subsection (1) of this
section, or where it appears to the court that the case is not ready for trial,
on any later date to which the matter shall on that date have been postponed,
the court shall fix the date of trial of every partition action in open court.
It shall not be necessary to give notice of the date of trial to any party,
unless the court in special circumstances otherwise orders.
TRIAL.
25. (1) On the date fixed for the trial of a partition action
or on any other date to which the trial may be postponed or adjourned, the
court shall examine the title of each party and shall hear and receive evidence
in support thereof and shall try and determine all questions of law and fact
arising in that action in regard to the right, share, or interest of each party
to, of, or in the land to which the action relates, and shall consider and
decide which of the orders mentioned in section 26 should be made.
(2)
If a
defendant shall fail to file a statement of claim on the due date the trial may
proceed ex parte as against such party in default, who shall not be entitled,
without the leave of court, to raise any contest or dispute the claim of any
other party to the action at the trial.
(3)
The
court may permit a party in default to participate in the trial after notice to
the other parties to the action affected by the claim or dispute set up or
raised by such party in default, on being satisfied of the bona fides of such
claim or dispute, and upon such terms as to costs and filing of a statement of claim
or otherwise as the court shall deem fit.
2.
Anthony
Appu v Margret Fernando [1999] 3 Sri LR 85, CA
3.
Francis
Wanigasekera v Pathirana [1997] 3 Sri LR 231, CA
4.
Roslin
v Maryhamy [1994] 3 Sri LR 262, CA
5.
Don
Samel v Don Sadiris [1986] 3 CALR 79,
6.
Gunatillake
v Muriel Silva & Others 79(1) NLR 481
INTERLOCUTORY DECREE.
26. (1) At the conclusion of the trial of a partition action,
or on such later date as the court may fix, the court shall pronounce judgment
in open court, and the judgment shall be dated and signed by the Judge at the
time of pronouncing it. As soon as may be after the judgment is pronounced, the
court shall enter an interlocutory decree in accordance with the findings in
the judgment, and such decree shall be signed by the Judge.
(2) The interlocutory decree may include one or more of the
following orders, so however that the orders are not inconsistent with one
another:-
(a) order for a partition of the land ;
(b) order for a sale of the land in whole
or in lots;
(c)
order
for a sale of a share or portion of the land and a partition of the remainder;
(d) order that any portion of the land
representing . the share of any particular party only shall be demarcated and
separated from the remainder of the land ;
(e) order that any specified portion of
the land shall continue to belong in common to specified parties or to a group
of parties;
(f)
order
that any specified portion of the land sought to be partitioned or surveyed be
excluded from the scope of the action;
(g) order that any share remain
unallotted.
(3)
Where
by virtue of an order made under subsection (1), a person is entitled to an
undivided extent of land which, by reason of its trivialness in extent or value
or of it being less than the minimum extent required by any written law
regulating the subdivision of land for development purposes, the court
considers it inexpedient to allot to that person a divided portion, the court
may, in lieu of ordering the allotment of a divided portion of the land to mat
person and on the payment to that person of such compensation as may be
determined by court, allot that extent to any other person who is entitled to
an undivided extent of the land to which the action relates.
(4)
Where a
partition action is in respect of two or more lands, the interlocutory decree
may, in lieu of ordering the allotment of divided portions in all such lands to
the persons entitled thereto, order that-
(a) any divided portion or portions of
one or of some of such lands, or
(b) the entirety of one or of some of
such lands, whether with or without any divided portion or portions of any
other such land or lands, be allotted to any such person, whether with or
without the award to him of owelty or of compensation for any improvements made
by him to any such land. In any order under this subsection the court shall
determine the amount of any owelty or of any compensation for improvements and
the party by whom and the party to whom such owelty or compensation shall be
paid.
(5) Where in an interlocutory decree the court has ordered
the sale of a share or portion of the land and the partition of the remainder,
the court may allot to each of the parties such share of the money to be
realized by the sale of the share or portion of land ordered to be sold, or
such share of the soil in the remainder ordered to be partitioned, or such
share of both the money and the remainder of the land, as the court may
consider just in the circumstances of each case.
Udulagama v Kempitiya [2002] 3 Sri LR 1 (CA) [154]
Roslin v Maryhamy [1994] 3 Sri LR 262 (CA)
ISSUE OF COMMISSION FOR DIVISION OF LAND INTO LOTS OR FOR
SALE OR PARTITION
27. (1) Where the court decides that the land shall be sold
in lots, the court shall, at the time of pronouncing judgment or on a later
date notified by the court, order the issue of a commission for the division of
the land into lots to a person to be named in the order and in open court fix
the returnable date of the commission.
(2)
The
court shall at the time of pronouncing judgment or on a later date notified by
the court, order the issue of a commission for sale, or for partition, or for
both sale and partition, or of two separate commissions for sale and for
partition as the case may require, to a person to be named in the order and
shall in open court fix the returnable date of the commission:
Provided that, where the court orders a sale, the court
shall, if the value of the extent of land to be sold is not more than two
thousand five hundred rupees, and may, if such value is more than two thousand
five hundred rupees, order the Fiscal to conduct the sale in accordance with
the provisions of this Law.
(3)
Where
the court decides that the land or any portion thereof shall be partitioned,
the commission under subsection (2) of this section shall be issued to the
surveyor who made the preliminary survey unless the court directs that such
commission shall be issued to some other surveyor.
(4)
The
court may from time to time extend the returnable date referred to in
subsection (1) or subsection (2) of this section.
(5)
The
court may revoke a commission issued under this section and order the issue of
a fresh commission.
Wickramaratne v Samarawickrema [1995] 2 Sri LR 212.(CA) [196]
FORM OF
COMMISSION.
28. Every commission for partition or sale issued under
section 27 shall be substantially in the form set out in the Second Schedule to
this Law and shall have attached thereto-
(a) a copy of the interlocutory decree certified as a true
copy by the Registrar or by any other officer of the court, or by the
registered attorney for the party who takes out the commission, and (b) a
statement specifying the place of residence of each party who has been allotted
in the interlocutory decree .any right, share or interest to, of or in the land
to which the decree relates.
COSTS OF COMMISSION.
29. (1) Where the court orders commission to be issued, the court
shall-
(a)
determine
the amount to be deposited as the costs of the commission, such costs in the
case of a commission for partition being determined according to such rates as
may be prescribed by regulations;
(b)
fix a
date on or before which the costs so determined shall be deposited in court;
and (c) Specify the party by whom the costs are to be deposited.
(2)
If the
costs are not deposited in court by the party specified on or before the date
fixed under subsection (1) of this section or within such further time as may
be allowed by the court on application made in that behalf, the court may order
or permit any other party to deposit the costs and fix a date for that purpose.
(3)
If the
costs are not deposited by the party ordered or permitted so to do under
subsection (2) of this section on or before the date fixed for the purpose or
within such further time as may be allowed, the court may dismiss the action or
make such other order as the circumstances may require.
(4)
The
party depositing costs under this section shall be given credit therefor in
such manner as the court may direct.
(5)
After
the survey for the final partition of the land has been made, the court shall
determine the actual costs of such survey in accordance with the rates
prescribed under paragraph (a) of subsection (1) and if there is any
deficiency, the court shall make an order specifying the person by whom, and
the date on or before which, the amount of such deficiency shall be deposited
in court.
(6)
If the
amount of such deficiency is not paid on the due date as ordered by court, it
shall be lawful for the court to direct the recovery thereof in the same action
as though the order for the payment of that amount were a decree in favour of
that surveyor against the party ordered to pay that amount-
Perera v Adline [2000] 3 Sri LR 93 (CA) [163]
EXECUTION OF COMMISSION FOR PARTITION.
30. (1) On receipt of
a commission to partition the land, the surveyor shall fix a date for
partitioning the land and shall, at least fourteen .days before that date,
issue notice in writing to each party mentioned in the statement attached to
the commission that the land will be partitioned on that date. .
(2)
A
notice to any party under subsection (I) of this section shall be sent to him
by registered post addressed to his place of residence specified in the
statement attached to the commission.
(3)
In
addition to the written notice required to be issued under subsection (1) of
this section the surveyor shall, at least ten days before the date fixed for
partitioning the land, cause to be orally proclaimed on the land after beat of
tom-tom, the fact that the land will be partitioned on that date.
(4)
The
date fixed under subsection (1) of this section for partitioning the land may
from time to time be altered to a later date by the surveyor by written notice
addressed to the parties mentioned in that subsection. Every such notice shall,
not less than seven days before such later date, be served in the manner
provided in subsection (2) of this section and a copy of the notice shall, in
addition, be exhibited in a conspicuous position on the land.
Wickramaratne
v Samarawickrema [1995] 2 Sri LR 212 (CA) [196]
SCHEME OF PARTITION.
31. (1) The surveyor shall, on the date or altered date fixed
for partitioning the land, proceed to the land and prepare a scheme of
partition in conformity with the interlocutory decree and with any special
directions contained in his commission and demarcate the divided portions on
the land by means of such boundary marks as are not easily removed or
destroyed. He shall inform the parties present of the returnable date of-his
commission fixed under section 27.
(2) Where any divided portion or portions that are to be
allotted to any person under an interlocutory decree are less than the minimum
extent required by written law regulating the subdivision of land for
development purposes, the surveyor shall, so far as is practicable, divide the
land in such a manner as would enable the allotment or sale of such portions as
one lot.
Wickramaratne
v Samarawickrema [1995] 2 Sri LR 212 (CA)
RETURN TO COMMISSION.
32. (1) The surveyor shall make his return to the commission,
verified by affidavit, substantially in the form set out in the Second Schedule
to this Law, on or before the returnable date or the extended date (as the case
may be) fixed under section 27, and together with such return he shall transmit
to the court-
(a) the plan of partition prepared by
him, in duplicate;
(b) a certified copy of his field notes;
(c)
a
report, in duplicate, explaining the manner in which the land had been
partitioned stating the names of the parties, the nature and extent of their
respective shares and interests and where any such extent is less than the
minimum extent required by any written law relating to sub-division of land for
development purposes, a statement to that effect, the dates on which the land
was partitioned, and, where a lot is allotted in common to several parties,
specifying each party's share of that lot;
(d) the appraised value of each lot and
of any improvements thereon and where the Court has directed the Commissioner
to allot portions of land together as one lot under section 26, the appraised
valuation of portions considered as one lot, and any improvements thereon and
the details of the computation of such value.
(e) a summary of distribution, such
report, appraisement, summary and certificate and summary being substantially
in the form set out in the Second Schedule to this Law.
(f)
a
certificate to the effect that the plan of partition is in conformity with
written law relating to the subdivision of land for development purposes
(2) Where no provision is made in the interlocutory decree
for the allotment of a lot in common, the surveyor shall not allot a lot in
common to any parties without the written consent of those parties.
Podinona v Premadasa [1996] 2 Sri LR 191, SC
MANNER OF PARTITION.
33. The surveyor shall so partition the land that each party
entitled to compensation in respect of improvements effected thereto or of
buildings erected thereon will, if that party is entitled to a share of the
soil, be allotted, so far as is practicable, that portion of the land which has
been so improved or built upon, as the case may be.
Perera v Perera [1978-79] 2 Sri LR 191, CA
Albert v Ratnayake [1988]
2 Sri LR 246, CA
COMPENSATION AND OWELTY.
34. (1) Where under any scheme of partition prepared by a
surveyor, payment has to be made to or by any party to a partition action in
respect of compensation for improvements to the land or of owelty, the amount
of such payment shall, in the first instance, be assessed by the surveyor and
shall be finally determined by the court.
(2) The amount determined by the court, under subsection (1)
of this section or under subsection (4) of section 26, as compensation for
improvements or as owelty shall, from the date on which final decree is
entered, be a charge on the portion of the land or the extent of land finally
allotted to the party made liable for the payment of such compensation or
owelty, as the case may be.
DATE FOR CONSIDERATION OF SCHEME OF PARTITION.
35. After the surveyor makes a return to the commission, the
court shall call the case in open court and shall fix a date, for the
consideration of the scheme of partition proposed by the surveyor. The date so
fixed shall be a date not earlier than thirty days after the receipt of such
return by the court.
FINAL DECREE OF PARTITION.
36.(1) On the date fixed under section 35, or on any later
date which the Court may fix for the purpose, the Court may, after summary
inquiry:
(a)
confirm
with or without modification the scheme of partition proposed by the surveyor
and enter final decree of partition accordingly ;
(b)
order
the sale of any lot, in accordance with the provisions of this Law, at the
appraised value of such lot given by the Surveyor under section 32, where the
Commissioner has reported to Court under section 32 that the extent of such lot
is less than the minimum extent required by written law relating to the
subdivision of land for development purposes and shall enter final decree of
partition subject to such alterations as may be rendered necessary by reason of
such order of sale.
(2)The provisions of sections 41,42,43,44, 45, 45A, 46, 47
and 48(2) shall, mutatis mutandis, apply to a sale ordered under paragraph (b)
of subsection (1).
Albert v
Ratnayake [1988] 2 Sri LR 246 (CA) [179]
APPEAL.
36A. Any person dissatisfied with an order of the Court made
under section 36, may prefer an appeal against such order to the Court of
Appeal, with the leave of the Court of Appeal first had and obtained.
COMMISSION FOR
DIVISION OF LAND INTO LOTS FOR SALE
37. (1) The person who receives a commission to divide a land
into lots for the purpose of the sale of the land in lots shall make his return
to the commission verified by affidavit on or before the returnable date or the
extended returnable date fixed under section 27, and together with such a
return he shall transmit to the court-
(a) a plan of the division of the land
into lots, and
(b) a report explaining the manner in
which the land is divided into lots.
(2) After the person referred to in subsection (1) of this
section makes a return to the commission, the court shall fix a date for the
consideration of the scheme of division of the land into lots proposed by such
person. On such date, or on any later date which the court may fix for the
purpose, the court shall after summary inquiry confirm such scheme with or
without modification.
VALUATION OF LAND.
38.(1) Where in a partition action the court orders the issue
of a commission to any person to sell the land in lots or otherwise than in
lots or orders the Fiscal to sell the land, the court shall fix a date on or
before which that person or the Fiscal, as the case may be, shall transmit to
the court a valuation of the land.
(2) The valuation referred to in subsection (1) of this
section shall show separately and in detail-
(a)
where
the land valued is to be sold in lots, the appraised value of each lot and of
any improvements thereon, with particular reference to the value of the
improvements of each party in each lot, and
(b)
where
the land is to be sold otherwise than in lots, the appraised value of the land
and of any improvements thereon, with particular reference to the value of the
interest of each party in the entire land.
(3) After considering the valuation under the preceding
provisions of this section and after such inquiry as the court may consider
necessary, the court shall determine the value of the land or, where the land
is to be sold in lots, the value of each of the lots and the value of the
improvements.
CONDITIONS OF SALE, &C.
39.(1) After determining the value of the land or, where the
land is to be sold in lots, the value of each of the tots, and the value of the
improvements, the court shall prescribe the conditions of sate and issue such
orders as the court may consider necessary for the conduct of the sale,
including orders as to the manner in which and the number of days before which
notice of the sale or adjourned sale of the land shall be given and published
by the person responsible for the sale,
(2) The court may, on application made in that behalf by a
co-owner who desires to purchase the land or a lot, specify the terms as to
credit to be allowed to him at the sale, having regard to the amounts, if any,
payable by him by way of pro rata costs, compensation for improvements, owelty,
mortgage debts or otherwise.
NOTICE OF SALE.
40. The person responsible for the sale, shall give notice
that he will, on a date to be specified in the notice, sell the land in terms
of the commission or order for sale issued to him and in accordance with the
conditions prescribed and the orders issued by the court under section 39. He
shall in addition to giving such notice in any other manner which may be
specified by the court, give such notice by registered post to each party
declared in the interlocutory decree to be entitled to any right, share or
interest to, of, or in the land.
SALE.
41. On the date specified in the notice referred to in
section 40, the person responsible for the sale shall, in terms of the
commission or order for sale issued to him, and in accordance with the
conditions of sale prescribed and the orders issued by the court under section
39-
(a)
first
put up the land or, where the land is to be sold in lots, put up each lot to
auction among the co-owners thereof, and if the highest bid made at that
auction is not less than the value of the land or of that lot determined by the
court under section 38, declare the co-owner by whom that bid was made to be
the purchaser of the land or of that lot; and
(b)
if no
co-owner becomes the purchaser of the land or of any lot, put the land or that
lot up to public auction, permit the co-owners to bid thereat, and declare the
highest bidder- at such public auction to be the purchaser of the land or of
that lot.
RETURN TO COURT.
42. The person responsible for the sale shall, after
complying with the provisions of section 41, makes his return to the court,
informing the court of the amount for which the land or, where the land was
sold in lots, each lot was sold and the name and address of the purchaser
thereof, and pay into court the money deposited with him by the purchaser.
DEPOSIT OF PURCHASE MONEY.
43. The purchaser of the land or, where the land was sold in
lots, the purchaser of each lot shall pay into court the money realized by the
sale of the land or of that lot in conformity with the conditions prescribed
and the orders issued by the court under section 39:
Provided that where the purchaser is a co-owner, he shall be
allowed credit in the net amount he is entitled to receive out of the proceeds
of sate after the deduction of the amounts, if any, payable by him on account
of pro rata costs, compensation for improvements, owelty, mortgage debts or
otherwise.
Lafir v
Gunapathy [1996] 2 Sri LR 1, CA
OBJECTIONS TO SALE.
44. Any
objection to a sale held under section 41 shall be preferred to court within a
period of thirty days reckoned from the date of receipt by the court of the
return to the commission for sale, and the court shall, after inquiry, make
such order as the circumstances of the case may require.
Rev.
Induruwe Dhammananda v Piyatissa [2001] 3 Sri LR 365 (CA) [137]
CONFIRMATION OF SALE.
45. The court shall confirm a sale, if within the period
referred to in section 44, no objection is preferred against the sale, or if
any objection duly preferred under that section is not upheld by the court
after inquiry:
Provided
that, where the amount realized by the sale of the land or of any lot under
paragraph (b) of section 41 is less than the value of the land or of that lot
determined by the court under section 38, the court may set aside the sale of
the land or of that lot on such terms and conditions as the court may determine
and order the issue of a fresh commission for the sale of the land or of that
lot and make all such orders as the court considers necessary for the conduct
of the sale.
APPEAL.
45A.(1) Any person dissatisfied with an order of the Court
made under section 45 may prefer an appeal against such order to the Court of
Appeal, with the leave of the Court of Appeal first had and obtained
(2) The provisions of Chapter LVIII of the Civil Procedure
Code relating to applications for leave to appeal shall, mutatis mutandis,
apply to applications for leave to appeal against orders made under sections
36A and 45A' '.
CERTIFICATE OF SALE.
46. Upon the confirmation of the sale of the land or of any
lot, the court shall enter in the record a certificate substantially in the
form set out in the Second Schedule to this Law, in favour of the purchaser and
shall order the issue of a certified copy of such certificate to the purchaser.
The court may, on the application of the purchaser, attach to the certificate a
plan of the land or lot prepared at the cost of the purchaser and authenticated
by the court.
DISTRIBUTION AND WITHDRAWAL OF MONEY IN COURT.
47.(1) The court shall cause to be prepared by a party named
by the court a schedule of distribution showing the amount which each party is
entitled to withdraw out of the money deposited in court.
(2)
No
money shall be withdrawn from court by any party until the schedule of
distribution has been approved by the court.
(3)
A party
entitled to compensation in respect of a plantation or a building or otherwise
shall share proportionately with the other parties in any gain or loss, as the
case may be, resulting from the sale of the land at a figure above or below the
value determined by the court under section 38.
Lafir v
Gunapathy [1996] 2 Sri LR 1 (CA) [183]
SPECIAL
PROVISIONS RELATING TO DECREES
48.(1) Save as provided in subsection (5) of this section,
the interlocutory decree entered under section 26 and the final decree of
partition entered under section 36 shall, subject to the decision on any appeal
which may be preferred therefrom, and in the case of an interlocutory decree,
subject also to the provisions of subsection (4) of this section, be good and
sufficient evidence of the title of any person as to any right, share or
interest awarded therein to him and be final and conclusive for all purposes
against all persons whomsoever, whatever right, title or interest they have, or
claim to have, to or in the land to which such decree relates and
notwithstanding any omission or defect of procedure or in the proof of title
adduced before the court or the fact that all persons concerned are not parties
to the partition action; and the right, share or interest awarded by any such
decree shall be free from all encumbrances whatsoever other than those
specified in that decree. In this subsection " omission or defect of
procedure '* shall include an omission or failure-
(a) to serve summons on any party; or
(b) to substitute the heirs or legal
representatives of a party who dies pending the action or to appoint a person
to represent the estate of the deceased party for the purposes of the action;
or (c) to appoint a guardian ad litem of a party who is a minor or a person of
unsound mind.
In this subsection and in the next subsection "
encumbrance" means any mortgage, lease, usufruct, servitude, life
interest, trust, or any interest whatsoever howsoever arising except a
constructive or charitable trust, a lease at will or for a period not exceeding
one month.
(2) Where in pursuance of the
interlocutory decree a land or any lot thereof is sold, the certificate of sale
entered in favour of the purchaser shall be conclusive evidence of the
purchaser's title to the land or lot as at the date of the confirmation of
sale, free from all encumbrances whatsoever except any servitude which is
expressly specified in such interlocutory decree and a lease at will or for a
period not exceeding one month.
(3) The interlocutory decree and the
final decree of partition entered in a partition action shall have the final
and conclusive effect declared by subsection (1) of this section
notwithstanding the provisions of section 44 of the Evidence Ordinance, and
accordingly such provisions shall not apply to such decrees.
The powers of the Court of Appeal by way of revision and
restitution in integrum shall not be affected by the provisions of this
subsection,
(4) (a) Whenever a party to a partition
action-
(i) has not been served with summons, or
(ii)
being a
minor or a person of unsound mind, has not been duly represented by a guardian
ad litem, or
Paragraph (iii) Repealed by [§ 21, 17 of 1997]
(iv) being a party who has duly filed his statement of claim
and registered his address, fails to appear at the trial,
and in consequence thereof the right, title or interest of
such party to or in the land which forms the subject-matter of the
interlocutory decree entered in such action has been extinguished or such party
has been otherwise prejudiced by the interlocutory decree, such party or where
such party is a minor or a person of unsound mind, a person appointed as
guardian and item of such party may, on or before the date fixed for the consideration
of the scheme of partition under section 35 or at any time not later than
thirty days after the return of the person responsible for the sale under
section 42 is received by court, apply to the court for special leave to
establish the right, title or interest of such party to or in the said land
notwithstanding the interlocutory decree already entered.
(b)
The
aforesaid application shall be by petition, supported by an affidavit verifying
the facts, which shall conform to the provisions of paragraph (a) of subsection
(1) of section 19 and shall specify to what extent and in what manner the
applicant seeks to have the interlocutory decree amended, modified or set aside
and the parties affected thereby.
(c)
If upon
inquiry into such application, after prior notice to the parties to the action
deriving any interest under the interlocutory decree, the court is satisfied-
(i) that the party affected had no notice
whatsoever of the said partition action prior to the date of the interlocutory
decree or having duly filed his statement of claim and registered his address,
failed to appear at the trial owing to accident, misfortune or other
unavoidable cause, and
(ii) that such party had a prima facie
right, title or interest to or in the said land, and
(iii)
that
such right, title or interest has been extinguished or such party has been
otherwise prejudicially affected by the said interlocutory decree, the court
shall upon such terms and conditions as the court in its discretion may impose,
which may include an order for payment of costs as well as an order for
security for costs, grant special leave to the applicant.
(d)
Where
the court grants special leave as hereinbefore provided the court shall
forthwith settle in the form of issues the questions of fact and law arising
from the pleadings and any further pleadings which are relevant to the claim
set up in the petition only, and the court shall appoint a date for the trial
and determination of the issues. The applicant, unless the court otherwise
orders, shall cause notice of such date to be given to all parties whose rights
under the interlocutory decree are likely to be affected or to their registered
attorney in such manner as the court shall specify. The court shall thereafter
proceed to hear and determine the matters in issue in accordance with the
procedure applicable to the trial of a partition action.
(e)
Where
the court determines any matter in issue in favour of the applicant, the court
shall in accordance with its findings amend or modify the interlocutory decree
to such extent and in such manner only as shall be necessary to give to the
successful party and to no other party or person whomsoever, the right, title
or interest to which such party is entitled, or in the event of the applicant
being found entitled to the entirety of the said land forming the
subject-matter of the interlocutory decree, the court shall set aside the
interlocutory decree and dismiss the action.
(5)
The
interlocutory decree or the final decree of partition entered in a partition
action shall not have the final and conclusive effect given to it by subsection
(1) of this section as against a person who, not having been a party to the
partition action, claims any such right, title or interest to or in the land or
any portion of the land to which the decree relates as is not directly or
remotely derived from the decree, if, but only if, he proves that the decree
has been entered by a court without competent jurisdiction.
(6)
Where
by an interlocutory or final decree a right, share or interest has been awarded
to a party but such party was dead at the time, such decree shall be deemed to
be a decree in favour of the representatives in interest of such deceased
person at the date of such decree.
(7)
The
provisions of this section shall apply to all interlocutory and final decrees
entered in partition actions instituted under the provisions of the Partition
Act, No. 16 of 1951,* and under the provisions relating to partition actions
contained in the Administration of Justice Law, No. 44 of 1973, repealed by the
Civil Courts Procedure (Special Provisions) Law, 1977. (*" Chapter 69 of
the 1956 Edition of the Legislative Enactments, which has been repealed by the
Administration of Justice
Law, No. 44 of 1973, as amended by Law No. 25 of 1975.)
1.
Sapin Singho v Luwis Singho [2002] 3 Sri LR 271, CA
2.
Abeygunasekera v Wijesekera [2002] 2 Sri LR 269, CA
3.
Caroline Perera v Martin Perera [2002] 2 Sri LR 1, CA
4.
Peiris v Chandrasena [1999] 3 Sri LR 153, CA
5.
Ranjit v Kusumawathie [1998] 3 Sri LR 232, SC
6.
De Costa v De Costa [1998] 1 Sri LR 107, CA
7.
Martin Singho v Nanda Peiris [1995] 2 Sri LR 221, CA
8.
Wickremaratne v Samarawickrema [1995] 2 Sri LR 212, CA
9.
Malwatta v Gunasekera [1994] 3 Sri LR 168, CA
10.
Menik Hamy v Menik Hamy [1987] 1 CALR 239, CA
11.
Sattasivam v Sidambaram [1986] 1 CALR 530
12.
Piyasena Perera v Margret Perera [1984] 1 Sri LR 57, CA
13.
Dissanayake v Elisinahamy [1978-79] 2 Sri LR 118, CA
14.
Appuhamy v Ranasinghe 79(2) NLR 142, SC
see also
Umma v Zubair [2002] 3 Sri
LR 169 (CA) [142]
Virasinghe v Virasighe
[2002] 1 Sri LR 264 [136]
Rev. Induruwe Dhammananda v
Piyatissa [2001] 3 Sri LR 365 (CA) [137]
Richard v Siebel Nona
[2001] 2 Sri LR 1 (CA) [149]
Perera v Adline [2000] 3
Sri LR 93 (CA) [163]
Ranjit v Kusumawathie
[1998] 3 Sri LR 232 (SC) [194]
Podinona v Premadasa [1996]
2 Sri LR 191 (SC) [177]
Wickramaratne v
Samarawickrema [1995] 2 Sri LR 212 (CA) [196]
Koralage v Marikkar Mohamed
[1988] 2 Sri LR 299 (CA) [146]
Somawathie v Madawela
[1983] 2 Sri LR 15, [1986] BLR 233,
SC [143]
Perera v Perera [1978-79] 2
Sri LR 191 (CA) [178]
Gunatillake v Muriel Silva
& Others 79(1) NLR 481 [169]
ACTION FOR DAMAGES BY PERSON WHO IS NOT A PARTY TO PARTITION
ACTION.
49.(1) Any person, not being a party to a partition action,
whose rights to the land to which the action relates have been extinguished or
who is otherwise prejudiced by the interlocutory decree entered in the action,
may, by separate action instituted not later than five years from the date of
the final decree in the partition action, recover damages from any party to the
action by whose act, whether of commission or omission, such damages may have
accrued and where the whole or any part of such damages cannot be recovered
from any such party, recover such damages or part thereof from any other person
who has benefited by any such act of such party.
Any person who has benefited by such act may be made a
defendant in such separate action and shall, if damages are awarded in that
action, be bound by the award to the extent of such benefit as may be determined
by the court, to be that derived by him from such act.
(2) Where such action for damages as is referred to in
subsection (1) of this section is instituted and is registered as a Lis pendens
under the Registration of Documents Ordinance in, or in continuation of the
folio in which the said interlocutory decree was registered before the decree
of partition is entered under section 36 or the schedule of distribution is
approved by the court under section 47, in the partition action relating to
that land, then, if any damages are awarded to the plaintiff in the action for
damages-
(a) the amount of such damages shall be a charge on any share
of the land or any money allotted in such partition action to the defendant or
each of the defendants in the action for damages, and (b) such charge shall
rank next in priority to the charge referred to in subsection (2) of section 34
and the charge referred to in section 63,and such charge shall be enforceable
against such party and any person deriving a right, title or interest therein
or thereto from such party, not being a transferee for value without notice of
the right, title or interest of such plaintiff.
(3) For the purposes of subsection (1) of this section a
party to a partition action on whom summons had not been served or a party to
such an action being a minor or a person of unsound mind, who shall not have
been duly represented by a guardian ad litem. shall be deemed to be a person
who was not a party to the said action.
And where an application for special leave under the
provisions of subsection (4) of section 48 had been refused without an
adjudication upon the merits of the claim set up by such party, the order
refusing leave shall not be a bar to an action under subsection (1) of this
section by the same party.
Richard v Siebel Nona
[2001] 2 Sri LR 1 (CA) [149]
Perera v Adline [2000] 3
Sri LR 93 (CA) [163]
Dissanayake v Elisinahamy
[1978-79] 2 Sri LR 118 (CA) [200]
Gunatillake v Muriel Silva
& Others 79(1) NLR 481 [169]
LEASE OR MORTGAGE OF UNDIVIDED SHARE.
50.(1) If in an interlocutory decree for partition any
undivided share of the land constituting the subject-matter of the partition
action in which such decree is entered is declared to be subject to a mortgage
or lease the rights of the mortgagee or of the purchaser of the mortgaged share
under a mortgage decree, or of the lessee, shall-
(a)
where
the partition is otherwise than in accordance with an order made under
subsection (4) of section 26, be limited to the share allotted in such
interlocutory decree to the mortgagor or lessor; and
(b)
where
the partition is in accordance with an order made under subsection (4) of
section 26, be limited to so much of the extent of land and of any owelty or
compensation allotted in the partition action to the mortgagor or lessor as the
court shall determine.
(2)
If in
an interlocutory decree for sale any undivided share of the land constituting
the subjectmatter of the partition action in which such decree is entered is
declared to be subject to a mortgage or lease, the rights of the mortgagee or
of the purchaser of the mortgaged share under a mortgage decree, or of the
lessee, shall be limited to the mortgagor's or lessor's share of the net
proceeds of the sale of the land.
(3)
If in
any interlocutory decree for partition or sale any undivided share is declared
subject to a usufruct, life interest, trust, right of revocation -or right of
re- transfer, the right of such usufructuary, life interest holder, beneficiary
or of the person entitled to a right of revocation or of re- transfer shall be
limited-
(a)
in the
case of a partition otherwise than in accordance with subsection (4) of section
26, to the divided lot or lots allotted in respect of such undivided share; and
(b)
in the
case of a partition in accordance with subsection (4) of section 26, to so much
of the extent of land and of any owelty or compensation allotted in respect of
such undivided share; and (c) in the case of a sale, to the net share of the
proceeds of sale, in respect of such undivided share.
REGISTRATION OF INTERLOCUTORY DECREE, FINAL DECREE AND
CERTIFICATE OF SALE.
51. Where in a partition action an interlocutory decree under
section 26 or a filial decree of partition under section 36 or a decree
dismissing the action or a certificate of sale under section 46 is entered, the
court shall cause a copy of such decree or certificate to be transmitted to the
Registrar of Lands of the district or of each of the districts in which the
land or each of the lands to which such decree or certificate relates is
situated, and such Registrar shall duly register such copy under the
Registration of Documents Ordinance as an instrument affecting the land or each
of the lands to which it relates.
No fee shall be charged for the registration of such copy
under such Ordinance notwithstanding anything to the contrary in such Ordinance
or in any regulation made thereunder.
DELIVERY OF POSSESSION OF LAND TO PARTIES AND
PURCHASERS.
52.(1) Every party to a partition action who has been declared
to be entitled to any land by any final decree entered under this Law and every
person who has purchased any land at any sale held under this Law and in whose
favour a certificate of sale in respect of the land so purchased has been
entered by the court, shall be entitled to obtain from the court, in the same
action, on application made by motion in that behalf, an order for the delivery
to him of possession of the land :
Provided that where such party is liable to pay any amount as
owelty or as compensation for improvements, he shall not be entitled to obtain
such order until that amount is paid.
(2) (a) Where the applicant for delivery of possession seeks
to evict any person in occupation of a land or a house standing on the land as
tenant for a period not exceeding one month who is liable to be evicted by the
applicant, such application shall be made by petition to which such person in
occupation shall be made respondent, setting out the material facts entitling
the applicant to such order.
(b) After hearing the respondent, if the court shall
determine that the respondent having entered into occupation prior to the date
of such final decree or certificate of sale, is entitled to continue in
occupation of the said house as tenant under the applicant as landlord, the
court shall dismiss the application; otherwise it shall grant the application
and direct that an order for delivery of possession of the said house and land
to the applicant do issue.
Munidasa v Nandasena [2001] 2 Sri LR 224, CA
Abeyratne v
Manchanayake [1992] 1 Sri LR 361, CA
Esabella
Perera Hamine v Emalia Perera Hamine [1990] 1 Sri LR 8, CA Virasinghe v
Virasighe [2002] 1 Sri LR 264 (SC) [136]
RESTORATION OF POSSESSION.
52A.(1) Any person-
(a) who has been declared entitled to any land by any final
decree entered under this Law ; of (b) who has purchased any land at any sale
held under this Law and in whose favour a certificate of sale in respect of the
land so purchased has been entered by Court; or
(c) who has derived title from a person referred to in
paragraph (a), or paragraph (b) and whose possession has been, or is interfered
with or who has been dispossessed, shall, if such interference or dispossession
occurs within ten years of the date of the final decree of partition or the
entering of the certificate of sale, as the case may be, be entitled to make
application , in the same action, by way of petition for restoration of
possession, within twelve months of the date of such interference or
dispossession, as the case may be.
(2)The person, against whom the application for restoration
of possession is made, shall be made the respondent to the application.
(3) The Court shall, after due inquiry into the matter, make
order for delivery of possession or otherwise as the justice of the case may
require :
Provided that, no order for delivery of possession of the
land shall be made where the respondent is a person who derives his title to
the land in dispute or part thereof directly from the final decree of partition
or sale, or is a person who has acquired title to such land from a person who
has derived title to such land under the final decree of partition or sale, or
from the privies or heirs of such second mentioned person.
POWER OF COURT TO ENFORCE IT'S DECREES AND ORDERS AND TO DEAL
WITH OFFENCES OF CONTEMPT OF COURT.
53.(1) A court exercising jurisdiction in a partition action
shall have full power to give effect to every order or decree made or entered
in the action (including the power to order delivery of possession of any land
or portion of land to any person entitled thereto) and to punish as for
contempt of court any person who-
(a) disobeys any such order, or
(b) obstructs or resists any person
acting under the authority of the court or exercising any power conferred on
him by this Law, or
(c) damages, destroys or removes, during
the pendency of the action, any boundary mark which under section 31, has been
made or set up on the land to which the action relates.
(2) Where, under subsection (1) of this section, a person is
convicted of obstructing or resisting a surveyor engaged, under the authority
of the court, in doing any work on a land, the court may, in addition to the
imposition of any punishment on that person under that subsection, order him to
pay an amount determined by the court as the expenses of the surveyor if in
consequence of the obstruction or resistance it is necessary for the surveyor
to proceed again to such land for the purpose of doing such work.
Any amount ordered by the court under this subsection to be
paid by any person may be recovered as though that amount were a fine imposed
on that person by the court.
Somindra v Surasena [2000] 3 Sri LR 159, CA
Munidasa v Nandasena [2001] 2 Sri LR 224 (CA)
SPECIAL CASES
54. (1) Where a person having the ownership of a permanent
plantation, apart from the soil, on the land to which a partition action
relates is a party to the action, he shall be entitled only to receive
compensation in respect of that plantation.
(2) The ownership of a permanent plantation, apart from the
soil, on a land may, for the purposes of subsection (1) of this section, be
established by proof of any agreement with the owner of the land or of any
custom recognized in the locality in which the land is situated,
notwithstanding the provisions of the Prevention of Frauds Ordinance.
PARTITION OF LAND BELONGING TO PARTNERSHIP.
55.(1) A co-owner shall not be entitled to institute a
partition action in respect of a land it there exists a valid deed of partnership
which binds such co-owner to cultivate that land or to raise crops or produce
thereon for the purpose of selling such crops or produce or which is for the
purpose of carrying on any trade, manufacture or occupation relating to, or
connected with, the joint ownership of that land, and if any of the terms,
conditions or covenants of that deed of partnership will be avoided, infringed
or violated by a partition or sale of the land.
(2) The provisions of subsection (1) of this section shall
not apply in any case in which the right to institute a partition action has
been expressly reserved in the deed of partnership referred to in that
subsection.
EXECUTORS AND ADMINISTRATORS.
56. No person acting in the capacity of an. executor or
administrator shall institute a partition action in respect of any land
belonging to the estate which he is administering,
COSTS
57. (1) In any partition action, the following costs shall,,
unless the court otherwise directs, be borne by the parties to the action in
the proportion of their respective rights to the land to which the action
relates:-
(a) the costs of the execution of the
commission for the preliminary survey and the costs of the execution of the
commission for the partition or sale of the land or for the division of the
land into lots for the purpose of the sale of the land in lots, determined as
hereinbefore provided;
(b) the costs of the execution of any
commission issued to the Surveyor-General under subsection (3) of section 18;
(c)
the
costs of deeds and other documents produced to prove the common title;
(d) the costs of the proclamation under
paragraph (A) of subsection (3) of section 15;
(e) other costs of instituting and
prosecuting the action, The costs referred to in paragraph (e) of this
subsection shall be determined in accordance with the rates set out in the
Fourth Schedule to this Law.
(2) The costs referred to in subsection (I) of this section
shall be known as the " recoverable costs " and the proportionate
share thereof to be borne by each of the parties shall be known as the
"pro rata" costs of that party and shall be recoverable in the same
action from that party by the party who has incurred the recoverable costs.
Ariyasena v
Gunatilake [1990] 2 Sri LR 244, CA
COSTS RECOVERABLE BY ATTORNEY-AT-LAW.
58. The costs in a partition action which an attorney-at-law
may recover from his client shall be taxed at the rates set out in the Fifth
Schedule to this Law.
COSTS OF CONTEST.
59. In the event of a contest, the court, after hearing the
parties concerned, snail fix the amount of the costs of the contest having
regard to the value of the share or interest in dispute, and direct by whom
such costs shall be paid.
COSTS OF PROVING TITLE OF DEFAULTING PARTY.
60. Where a party omits to prove his title, the court may
permit one of the other parties to prove the title or the party in default. The
amount allowed by the court as the costs of proving such title shall be
specified in an order and shall be recoverable from the party in default.
ONE SET OF COSTS FOR PARTIES JOINTLY INTERESTED.
61. When parties are jointly interested in a contest, the
court shall ordinarily allow only one set of costs for all such parties and may
in its discretion apportion such costs among such parties; and, in the event of
an appeal by or against them to the Court of Appeal, only one amount shall be
fixed by way of security for costs of appeal.
SECURITY FOR COSTS FOR UNREASONABLE DELAY.
62.(1) It shall be lawful for the court at any stage of a
partition action to order any party to give security for costs it the court is
of opinion that the party has been guilty of unreasonable delay in presenting
or prosecuting his claim, or for other good and sufficient cause.
(2) Where any party to a partition action who is ordered
under subsection (1) of this section to give security for costs fails to give
such security within the time allowed therefor by the court, then-
(a) where that party is the plaintiff,
the court may dismiss the action or may permit any defendant to prosecute the
action and may substitute him as plaintiff for that purpose, and may make an
order for costs against the plaintiff; or
(b) where that party is a defendant, the
court may reject so much of his claim as is in dispute.
(3)
Where the
trial of- a partition action is postponed or adjourned in consequence of such
delay on the part of a party to the action as is referred to in subsection (1)
of this section, the court may order that any costs payable by that party
because of the postponement or adjournment shall be pre-paid.
(4)
If any
party ordered to pre-pay costs under subsection (3) of this section fails to
make such prepayment of costs, the court may make any of the orders referred to
in subsection (2) of this section as it may deem fit, according as the party in
default is a plaintiff or defendant.
COSTS UNDER SECTIONS 57 AND 60 TO BE A CHARGE ON SHARE OF
PARTY.
63. All costs due from any party to a partition action under
sections 57 and 60 shall be a charge on the share of land or money allotted to
that party in that action and such charge shall rank next in priority to the
charge referred to in subsection (2) of section 34.
COSTS IN CASES NOT EXPRESSLY PROVIDED FOR.
64. Costs shall ordinarily be borne by the person who incurs
the costs except in cases where it is expressly provided by this Law that any
costs or proportion of costs shall be borne, ,pr may be ordered by the court to
be borne, by some other person.
DEFAULT IN PAYING COSTS AND CHARGES IMPERVIOUS ACTION UNDER
THIS LAW.
65. Where the court is satisfied that the plaintiff in any
action under this Law has not paid any costs or charges due from him in any
previous action instituted by him under this Law in respect of the same land,
the court may-
(a) fix a date for the payment of such
costs or charges and stay proceedings until such payment is made; and
(b) where such payment is not made on or
before that date, dismiss the action.
MISCELLANEOUS
66. (1) After a partition action is duly registered as a Lis
pendens under the Registration of Documents Ordinance no voluntary alienation,
lease or hypothecation of any undivided share or interest of or in the land to
which the action relates shall be made or effected until the final
determination of the action by dismissal thereof, or by the entry of a decree
of partition under section 36 or by the entry of a certificate of sale.
(2)
Any
voluntary alienation, lease or hypothecation made or effected in contravention
of the provisions of subsection (1) of this section shall be void ;
Provided that any such voluntary alienation, lease or
hypothecation shall, in the event of the partition action being dismissed, be
deemed to be valid.
(3)
Any
assignment, after the institution of a partition action, of a lease or hypothecation
effected prior to the registration of such partition action as a Lis pendens
shall not be affected by the provisions of subsections (1) and (2) of this
section.
Abeyratne v Rosalin [2001] 3 Sri LR 308, CA
Sirinatha v Sirisena [1998] 3 Sri LR 19, CA
APPEALS.
67.(1) Subject to the provisions of sections 36A and 45A, an
appeal shall lie to the Court of Appeal against any judgment, decree or order
made or entered by any court in any partition action; and all the provisions of
the Civil Procedure Code shall, subject to the succeeding provisions of this
section, apply accordingly to any such appeal as though a judgment, decree or
order made or entered in a partition action were a judgment, decree or order
made or entered in any action as defined for the purposes of that Code.
(2)
Where
an appeal has been preferred against any judgment, decree or order, made or
entered in any court in a partition action, the court shall forward to the
Court of Appeal, all papers and proceedings relevant to the judgment, decree or
order appealed against, retaining a copy of the judgment, decree or order
appealed against and the duplicate of the plan and report transmitted to court
under section 32.
(3)
Where
an appeal has been preferred against any judgment, decree or order made or
entered by any court in any partition action, such court may, on application
made by way of petition and affidavit in that behalf, make such orders, pending
the determination of the appeal, as may be necessary to prevent any waste, or damage
to the land in respect of which such action was instituted. Any such Order may
be given effect to in the manner provided for in section 53.
Sirisena v Nandawathie [1993] 2 Sri LR 125, SC
Thiyagarasa v Arunodayam [1987] 2 Sri LR 184, CA
Podinona v Sunny Fernando [1986] 2 CALR 217, CA
Abeyratne v Rosalin [2001] 3 Sri LR 308 (CA) [217]
De Costa v De Costa [1998] 1 Sri LR 107 (CA) [194]
Ranaweera v Solomon Singho 79(2) NLR 136 SC [592], [595]
PROOF OF DEEDS.
68. It shall not be necessary in any proceedings under this
Law to adduce formal proof of the execution of any deed which, on the face of
it, purports to have been duly executed, unless the genuineness of that deed is
impeached by a party claiming adversely to the party producing that deed, or
unless the court requires such proof.
WIMALAWATHIE vs HEMAWATHIE AND OTHERS- COURT OF APPEAL 2009 1
SLR 95
ADDITION OF PARTIES.
69. (1) The court may at any time before judgment is
delivered in a partition action add as a party to the action, on such terms as
to payment or prepayment of costs as the court may order-
(a) any person who, in the opinion of the court, should be,
or should have been, made a party to the action, after issuing to such person,
a notice, substantially in the Form set out in the Second Schedule to this Law,
requiring him to make an application to be added as a party to the action on or
before the date specified in the notice, and upon such person making such an
application or; (b) any person who, claiming an interest in the land, applies
to be added as a party to the action.
(1A) Any person who applies to be added as a party under the
provisions of subsection (1) of this section, shall file, along with his
application, a memorandum substantially in the Form set out in the Second
Schedule to this Law nominating in accordance with the provisions of section
81, a person to be his legal representative for the purposes of the partition
action in the event of his death pending the final determination of the action.
(2)
Where a
person is a party to a partition action and his right, title and interest to or
in the land to which the partition action relates are sold, during the pendency
of the partition action, in execution of, or under any decree, order or process
of any court, the purchaser of such right, title and interest at the sale shall
be entitled to be substituted for that person as a party to the partition
action, and such purchaser when so substituted, shall be bound by the
proceedings in the partition action up to the time of substitution. The
purchaser shall, along with his application to be substituted, file a
memorandum, substantially in the form set out in the Second Schedule to this
Law, nominating in accordance with the provisions of section 81, a person to be
his legal representative for the purposes of the partition action in the event
of his death pending the final determination of the action.
(3)
Where a
party to a partition action derives his right, share or interest to, of or in
the land to which the action relates under or by virtue of a revocable deed of
gift made by any other person or an instrument which reserves to any other
person the right to claim a re-transfer of such right, share or interest as
aforesaid within a period specified therein, such other person shall be
entitled to intervene at any time before judgment in the said action and
establish the right claimed by him as if he had been a co- owner at the time of
the institution of the action. An intervenient under this subsection shall,
with his application to intervene, file a memorandum substantially in the form
set out in the Second Schedule to this Law nominating, in accordance with the
provisions of section 81, a person to be his legal representative for the
purposes of the partition action in the event of his death pending the final
determination of the action.
(4)
It
shall be lawful for the court to order any person applying to be added as a
party under subsection (1), to give security for costs or prepay costs if the
court is of opinion that such applicant has been guilty of unreasonable delay
in presenting his claim or for other good and sufficient cause.
(5)
In
determining the quantum of the costs to be ordered under this section, the
court shall take
into consideration, any delay on the part of the applicant,
the stage at which the action is, any expenditure caused unreasonably to the
parties and any other matter that the court may consider relevant.
(6)
Where
any person referred to in this section who is ordered to give security for
costs or prepay costs, fails to give such security or make prepayment of costs,
within the time allowed therefor by court, the court may reject his
application.
S.C. Appeal No.09A/2010 Gamarallage Karunawathie
Vs Godayalage Piyasena – Death of a party pending partition- no steps taken- validity of the judgment
Gnanapandithen v Balanayagam [1998] 1 Sri LR 391, SC
Dantanarayana v Nonahamy 79(2) NLR 241, SC
Sirinatha v
Sirisena [1998] 3 Sri LR 19 (CA) [218]
NON-PROSECUTION OF PARTITION ACTION.
70. (1) No partition action shall abate by reason of the
non-prosecution thereof, but, if a partition action is not prosecuted with
reasonable diligence after the court has endeavoured to compel the parties to
bring the action to a termination, the court may dismiss the action;
Provided, however, that in a case where a plaintiff fails or
neglects to prosecute a partition action, the court may, by order, permit any
defendant to prosecute that action and may substitute him as a plaintiff for
the purpose and may make such order as to costs as the court may deem fit.
(2)
Any
party in a partition action or any person claiming an interest in the land in
respect of which such action has been instituted, may, if no steps have been
taken to prosecute the action for a period of two years, apply, by way of
motion to court, to have such action dismissed, and the court may dismiss the
action if it is satisfied that dismissal is justified in all the circumstances
of the case
(3)
Where
the court dismisses an action under this section, it shall cause a copy of the
order of dismissal of the action to be registered at the Land Registry in the
folio in which the lis pendens in the action was registered, or the
continuation thereof.
Amarasinghe v Podimenike [1997] 1 Sri LR 349, CA
Peiris v Chandrasena [1999] 3 Sri LR 153 (CA) [193]
Dantanarayana v Nonahamy 79(2) NLR 142 (SC) [225]
Gunatillake
v Muriel Silva & Others 79(2) NLR 481 [169
PENALTY FOR DISHONEST NON-DISCLOSURE OF INTERESTED
PERSONS.
71.(1) Every party to a partition action who, knowing that
any person has any interest in the land to which such action relates,
fraudulently or dishonestly fails or omits to disclose in the pleading filed by
him the fact that such person has such interest or that such person is a
necessary party to such action, shall be guilty of an offence and shall, on
conviction after summary trial before a Magistrate, be liable to a fine not
exceeding one thousand five hundred rupees, or to imprisonment of either
description for a period not exceeding eighteen months, or to both such fine
and imprisonment.
(2)
No prosecution
for an offence under subsection (1) of this section shall be entertained
without the sanction of the Attorney-General.
(3)
A
person guilty of an offence under subsection (1) of this section shall also, by
reason of his fraudulent or dishonest failure or omission mentioned in that
subsection, be guilty of a contempt of the court in which the partition action
referred to in that subsection has been instituted and may be punished for such
contempt in accordance with the provisions of Chapter LXV of the Civil
Procedure Code.
PENALTY FOR FALSE RETURN, & C., BY SURVEYOR.
72.(1) Whoever, being a person to whom a commission for the
survey, partition or sale of any land has been issued, makes any statement
which he knows or has reasonable cause to believe to be false in the return
made by him to such commission, or inserts in the survey plan or in the plan of
partition prepared by him or in his field notes any signs, marks or particulars
which he knows or has reasonable cause to believe to be false shall be guilty
of an offence and shall, on conviction after summary trial before a Magistrate,
be liable to a fine not exceeding one thousand five hundred rupees, or to
imprisonment of either description for a period not exceeding eighteen months
or to both such fine and imprisonment.
(2) A person guilty of an offence under subsection (1) of
this section shall also, by reason of his false return, survey plan, plan of
partition, or field notes, be guilty of a contempt of the. court which issued
the commission referred to in that subsection and may be punished for such
contempt in accordance with the provisions of Chapter LXV of the Civil
Procedure Code.
LIST OF SURVEYORS.
73. (1) Every court having jurisdiction to try a partition
action shall from time to time prepare a list of surveyors who reside or carry
on business within the jurisdiction of such court, to whom commissions may be
issued under this Law.
(2) Before including the name of a surveyor in the list
prepared under subsection (1) , the court shall make such inquiries as may be
necessary to ascertain, whether such surveyor will be regularly available to
undertake commissions issued by the court.
EXEMPTION FROM STAMP DUTY.
74. (1) All pleadings and processes and all documents filed or
produced in a partition action under this Law shall be exempt from stamp duty.
(2) All partition deeds shall be exempt
from stamp duty.
(3) Nothing herein contained shall affect
the proviso to paragraph (b) of the Exemptions under the heading " F-
Miscellaneous " in Part II of Schedule A* to the Stamp Ordinance.
DISMISSAL OF PARTITION ACTION.
75.(1) The dismissal of a partition action in respect of any
land under section 9, section 12, section 29, section 62, section 65 or section
70 shall not operate as a bar to the institution of another partition action in
respect of that land-
(2) The dismissal of a partition action under section 29,
section 62, section 65 or section 70 shall not affect the final and conclusive
effect given by section 48 to the interlocutory decree entered in such action.
POWER OF COURT TO POSTPONE, ADJOURN OR TO GIVE EXTENSIONS OF
TIME.
76. (1) Where a day is fixed or time .appointed for doing any
act or taking any proceeding by a party to the action, the court may, from time
to time, upon application by such party and if sufficient cause is shown, fix
another day or enlarge or abridge the time appointed, upon such terms, if any,
as to the court may seem proper.
(2)
The day
may be refixed or the time enlarged although the application for the same is
not made until after the expiration of the day or time fixed or appointed.
(3)
The
court may, for sufficient cause, either on the application of the parties or of
its own motion, advance or postpone the trial to any other day, upon such terms
as to costs or otherwise as to it shall seem proper.
(4)
Where a
date is fixed on or before which an act has to be done by a party to the action
or a return has to be made to a commission issued by the court, the case shall
be called in open court on such date for the purpose of making an appropriate
order in connection therewith or relating thereto.
SERVICE OF PROCESS.
77. The provisions of the Civil Procedure Code relating to
the execution or service of writs, warrants and other processes of court shall
apply in relation to the execution or service of writs, warrants and other
processes of court in a partition action.
Munidasa v Nandasena [2001] 2 Sri LR 224 (CA) [205]
POWERS AND DUTIES OF FISCAL.
78. A civil court may either generally or specially authorize
any officer to exercise or perform any power or duty conferred or imposed on
the Fiscal by this Law, within the local limits of its jurisdiction.
CASUS OMISSUS.
79. In any matter or question of procedure not provided for
in this Law, the procedure laid down in the Civil Procedure Code in a like
matter or question shall be followed by the court, if such procedure is not
inconsistent with the provisions of this Law.
FORMS.
80. Where no form to be used for the purposes of this Law has
been prescribed in ' any particular case or for any particular purpose, such
form shall be used as the court may approve for use in that case or for that
purpose.
MEMORANDUM NOMINATING REPRESENTATIVE.
81.(1) Every party to a partition action or any other person
required to file a memorandum under this Law, (hereinafter referred to as
"the nominator") shall file, or cause to be filed in court, a
memorandum, substantially in the form set out in the Second Schedule to this
Law, nominating at least one person, and not more than three persons, in order
of preference, to be his legal representative for the purposes of the action in
the event of his death pending the final determination of the action.
(2) (a) One of such nominees shall, in the order of
preference in which their names are set out in the memorandum, be deemed to be
the legal representative of the nominator for the purposes of the action, on
the death of such nominator.
(b)
In the
event of the death or incapacity of any of the nominees whose names are set out
in the memorandum, the person next nominated in order of preference shall be
deemed to be the legal representative for the purposes of the action, in the
event of the death of the nominator.
(c)
The
person or persons so nominated shall subscribe his or their signatures to the
memorandum signifying consent to be so appointed as legal representative. The
signatures of the nominator and those of the nominee or nominees so consenting
to be appointed shall be witnessed by an Attorneyat-Law or Justice of the Peace
or a Commissioner of Oaths :
Provided however, that failure to file such memorandum shall
not by such failure alone render the plaint, statement of claim, or application
to be added as a party defective or, notwithstanding anything in section 7, be
a cause or ground for rejecting such plaint, statement of claim or any
application to be added as a party.
(3)
The
court may at any time before the final determination of the action, on its awn
motion or on the application of any party, require a party to the action or any
person required to file a memorandum under the provisions of this Law, to file
such memorandum on or before a date appointed for such purpose by court.
(4)
A
nominee may, at any time prior to the death of the nominator apply, with notice
to the nominator, to court by way of motion to withdraw his consent to be such
nominee and in such event the court shall make order that he ceases to be the
nominee of the nominator and shall cause the name of such nominee to be struck
off the memorandum filed by the nominator.
(5)
A
nominator may, subject to the provisions of subsection (1) of this section, at
any time before the final determination of the action make application, with
notice to the nominees, to tender a fresh memorandum nominating one or more
nominees. On the filing of such new memorandum, the previous memorandum of such
nominator shall stand revoked and the nomination contained in such fresh
memorandum shall forthwith take effect
(6)
On the
death of a nominator, the person first nominated in the memorandum filed by the
nominator in order of preference, shall be deemed to be the legal
representative of such nominator for the purposes of the action from the time
of his death.
(7)
A
nominee deemed to be the legal representative of a deceased nominator shall be
entitled to take all such steps for the purposes of the action as the deceased
nominator would have been entitled to take had he been alive.
(8)
(a) A
nominee shall not decline to act as the legal representative of the deceased
nominator. He may however with the leave of the Court first had and obtained,
by way of petition and after notice to the other nominees if any, of such
nominator, apply for permission from court to be released from the office of
legal representative of such nominator.
(b)
In the
event of the court granting such permission, the nominee who is next in order
of preference in the memorandum filed by the nominator shall be deemed to be
the legal representative of such deceased nominator, for the purposes of the
action.
(c)
Where
an application under paragraph (a) of this subsection is made by a nominee who
was the sole nominee or sole remaining nominee of a deceased nominator, such
nominee shall notice the heirs of such deceased nominator regarding his
application and in the event of the court granting permission as aforesaid,
such court shall appoint a consenting heir of such deceased nominator to act as
the legal representative of such deceased nominator for the purposes of the
action.
(9)
Notwithstanding
that a party or person has failed to file a memorandum under the provisions of
this" section, and that there has been no appointment of a legal
representative to represent the estate of such deceased party or person, any
judgment or decree entered in the action or any order made, partition or sale
effected or thing done in the action shall be deemed to be valid and effective
and in conformity with the provisions of this Law and shall bind the legal
heirs and representatives of such deceased party or person. Such failure to
file a memorandum shall also not be a ground for invalidating the proceedings
in such action.
(10)
(a) On
the death of a party or person who had failed to file a memorandum as required
by this section, any party or person may apply to court by an exparte
application, requesting that a person be appointed as the legal representative
of such deceased party or person and the court may, on being satisfied after
inquiry that such appointment is necessary, appoint a suitable person to be the
legal representative of such deceased party or person for the purposes of the
action. Such legal representative shall be bound by the proceedings had up to
the time of such appointment.
(b)
Such
application and appointment shall not be a ground for the postponement of the
trial or proceedings;
Provided that the court may, in its discretion, after
recording reasons therefor and on the prepayment of costs, allow a postponement
of the trial if in the opinion of court it is in the interests of justice to do
so
(c)
In
ordering pre-payment of costs the court shall take into account the date of
institution of the action and the dates on which trial was held prior to such
application and the stage at which the action is and any other matters which
the court considers relevant.
(11) (a) An heir of a deceased nominator may, at any time
after the death of such nominator, apply to court to have the legal
representative of such deceased nominator removed and to have another person
named in such application or the person next named in order of preference in
the memorandum filed by the deceased nominator, appointed as such legal
representative. The person who for the time being is the legal representative
of the deceased nominator shall be made a respondent to such application.
(b)
The
court may, upon being satisfied that it is in the interests of the heirs of the
deceased nominator to do so, remove such legal representative and appoint the
person next named in order of preference in the memorandum filed by the
deceased nominator or if there are sufficient grounds for doing so, appoint the
person named in the application, as the legal representative of the deceased
nominator.
(c)
An
application under this section shall he by way of petition and affidavit and
the court may in its discretion, issue notice of the application to the other
heirs, if any, of the deceased nominator,
(12)
No
proceeding under this Law shall be postponed or adjourned nor any step in the
action postponed by reason of the death of a party or person required to file a
memorandum under this Law.
(13)
An
application under subsections (4), (5),(8)(a),(10)or (11)shall not be aground
for the postponement of the trial. The court may however grant a postponement
on the payment of costs by the person making the application, if it is of the
opinion mat it is in the interests of justice to allow such postponement.
(14)
For the
purposes of this section "legal representative" means, a person who
represents me estate of a deceased party or person, for the purposes of the
action, by virtue of a nomination, or of an appointment by court under this
section.
Ranasinghe v Jayamaha [1986] 2 CALR 412, CA
TRANSITIONAL PROVISIONS.
82. (1) Every action, proceeding or other matter relating to
partition actions already instituted and pending under the provisions of the
Administration of Justice Law, No. 44 of 1973, in any court, original or
appellate, on the appointed date shall be continued and proceeded with to final
judgment, completion or execution under the provisions of this Law, as if the
same had been instituted after the coming into operation of this Law.
(2) Every action, proceeding or other matter relating to
partition actions already instituted and pending under the provisions of the
Administration of Justice Law, No. 44 of 1973, in any Magistrate's Court on the
appointed date shall stand removed to the District Court of the district within
which such Magistrate's Court is situate and such District Court shall have
jurisdiction to continue and proceed with such action to final judgment,
completion or execution under the provisions of this Law, as if the same had
been instituted in such District Court after the coming into operation of this
Law.
REGULATIONS.
82A. (1) The Minister may make regulations In respect of any
matter which is required or authorized by this Act to be prescribed.
(2)
Every
regulation made by the Minister shall be published in the Gazette and shall
come into operation on the date of such publication or on such later date as
may be specified in the regulation
(3)
Every
regulation made by the Minister shall, as soon as convenient after its
publication in the Gazette, be brought before Parliament for approval. Any
regulation which is not so approved shall be deemed to be rescinded as from the
date of such disapproval but without prejudice to anything done thereunder.
(4)
Notification
of the date on which any regulation made by the Minister is so deemed to be
rescinded shall be published in the Gazette".
INTERPRETATION.
83. (1) In this Law, unless the context otherwise requires-
“appointed date " means the 15th day of December 1977;
"boundary marks" means the marks made or set up on
a land, at the time of the partition thereof, for the purpose of defining the
boundaries of the divided portions into which the land is partitioned, whether
such marks consist of ditches or fences along the boundaries or of posts of
hard wood or other material erected at suitable points on the boundaries;
"constructive or charitable trust" has the same
meaning as in the Trusts Ordinance;
"land ", when used with reference to a partition
action, means the land or lands constituting the subject-matter of that action;
" partition action" means an action instituted
under this Law for the partition or sale of any land or lands belonging in
common to two or more owners and includes any action, proceeding or other
matter continued under section 82;
"registered attorney" has the same meaning as in
the Civil Procedure Code; " surveyor" means a surveyor whose name is included
in a list prepared under section 73 and for the time being in force.
(2) For the purposes of sections 39, 41 and 43, "
co-owner " means a party to whom a share of the land has been allotted in
the interlocutory tt decree
and includes a person who has been declared by such decree to be entitled to
any right to compensation for
improvements.
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