Partition - Landmark Judgment - Somawathie vs Madawala

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Partition - Landmark Judgment ( Followed for nearly 4 decades)  A treatise by Justice J F A Soza 1st Director of the Sri Lanka Judges Institute

Somawathie vs Madawala read online 

SOMAWATHIE v.  MADAWELA AND OTHERS

SUPREME COURT

SHARVANANDA. J.. WANASUNDERA. J.. WIMALARATNE. J.. RATWATTE. J. AND SOZA. J.  S.C. NO. 24/82. S.C. NO. LA/23/82  C.A. APPLICATION NO. 399/7 7

D.C. KURUNEGALA NO. 3903/P FEBRUARY 28 AND MARCH 01. 1983.

 

Partition-Finality of interlocutory and final decrees-Revision-When can deed purporting io conve divided block be created as conveying undivided interest ?

 

Declaration-Section 12(I) and 48 of Partition Aci-Interpretation-Expressio unius exclusio afierius-Intervention after interlocutory decree.

 

Held 


When the boundaries of a purportedly divided block in a deed are insufficient for an exact and precise demarcation the deed conveys only undivided interests.

 

When there is no proper compliance with Section 12 of the Partition Law in the matter of the declaration stipulated to be filed under that section and no notice has been served on the claimants before the Surveyor as required by section 22( 1 )(a) of the Act then the Appeal Court can intervene by way of revision, to prevent a miscarriage of justice.

 

Although section 48 invests interlocutory and final decrees entered under the Partition Act with finality the revisionary powers of the Appeal Court are left unaffected. The position is the same under the Partition Law.

 

The powers of revision and restitutio in integrum of the Appeal Court have survived all the legislation that has been enacted up to date.

When the language used in a statute has been interpreted by the Courts and the legislature repeats the same or similar language it may be presumed (though not a canon of construction in the absence of indications to the contrary) that the legislature uses such language in the meaning the courts have given. The maxim expressio unius exclusio alterius is not a maxim of universal application and must be applied with caution. The exclusio is often the result of inadvertence or accident and must not be applied where having regard to the subject matter it would lead to inconsistency or accident. The words expressed could be illustrative only or used out of abundant caution.

 

The District Judge has no power to allow intervention after entry of interlocutory

decree.

 

Cases referred to :

 

1.       Ponna v. Muthuwa \ 1949) 52 NLR 59

 

2.       Dias v. Dias (1959) 61 NLR 116

 

3.       Ukku v. Si”doris \ 1957) 59 NLR 90

 

4.       Mariam Beebee v. Sewed Mohamed \ \ 965) 68 NLR 36

 

5.       Amarasuriya Estates Ltd v Ratnayake ( 956) 59 NLR 476

 

6.       Sirimalie v. Pinchi Ukku (1958) 60 NLR 448

 

7.      Siriwardene v. Janasumana \ 1958) 59 NLR 400

 

8.       Seelawathie v. Weeraman (1966) 68 & NLR 313

 

9.      Leisahamy v. Davith Singho | 1970) 7 9 CLW 109

 

10.   Isohamy v. Haramanis (1963) 66 NLR 57

 

11. J . Siriya v. Amalee (1957) 60 NLR 269

 

12. . Gunasinghe v. Aron Appuha Y ( 1970) 79 CLW 110

 

13. Ex parte Campbell In re Catheart [ 1870) LR 5 Ch. App. 703. 706

 

14. Perera v. Jayewardena [ 1947) 49 NLR 1

 

15. Barlow v. Teal (1885) 15 OBD 403. 404, 405

16.    Greave v. Tofield (1880) J 4 ChD 563. 57 1

17.    Webb v. Outri'm [ 1907) AC 81. 89

18.    Colquhoun v. Brooks (18881 21 OBD 52. 65

19.   Maurice & Co. Ltd. v. Minister of Labour [ 1968) IWLR 133 7. 1345.

20.    Mohamedaly Adamj”ee v. Hadad Sadeen (J 956) 58 NLR 217


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