PARTITION ACTIONS- JUSTICE T B WEERASURIYA JUDGE OF THE SUPREME COURT

Justice T B Weerasuriya- Judge of the S C

                       

PARTITION ACTIONS

Hon. Justice Weerasuriya

Retired. Judge of the Supreme Court

PARTITION ACTIONS

The Roman Dutch Law was made the common Law by the British by a Proclamation in 1799. After the said Proclamation, the Roman Dutch Law of Partition became applicable to the Island. Subsequently, several enactments had been promulgated to regulate the procedure for partition actions. The first of such enactment was the Ordinance No.21 of 1844. The provisions of this Ordinance were meant to provide co-owners with a more   certain and definite method of dividing their properties held in commonn The provisions of this Ordinance relating to partition were repealed by Ordinance No.ll of 1852. With the repeal of the provisions of Partition Ordinance No.21 of 1844, co-owners were remitted to their rights under the Roman Dutch Law, The Partition Ordinance No.10 of 1863 came into operation on ISt January 1864 to provide for the partition of land held in common. The Partition Act No.16 of 1951 was enacted to clarify the Law and settle the Law over which there continued to be endless disputes resulting from conflicting decisions. The Partition Act No.16 of 1951 was repealed by the Administration of Justice (Amendment) Law No.25 of 1975 and the current legislation applicable is the Partition Law No.21 of 1977.

A Partition action is defined in Section 83 of the Partition Law as an action instituted under the Partition Law for the partition or sale of any land or lands belonging in common two or more owners.  

Section 2(1) of the Partition Law lays down that where any land belongs in common to two or more owners anyone or more of them whether or not his or their ownership is subject to any life interest may institute an action for the partition or sale of the land in accordance with the provisions of this Law.

An action is defined in the Civil Procedure Code as a proceeding for the prevention or redress of a wrong. This would include the denial of a right, the refusal to fulfill an obligation, the neglect to perform a duty and infliction of an affirmative injury. It may be noted that a partition action is not an action founded upon a wrong. Nevertheless it is an action to obtain relief against the inconvenience of common possession. Taken in this sense, a partition action falls within the definition of an action in terms of Section 6 of the Civil Procedure Code.

The cause of action, if any, in a partition action is the inherent right of a co-owner to secure a divided holding of the common property or to obtain his share in the proceeds of the sale of the property.

In Marshal Perera Vs, Elizabeth Fernando (60 NLR 229 at 232) it was observed that — 

"The Partition Ordinance presupposes an inherent right in any person who is for the time being a co-owner to secure a divided holding for himself or else in appropriate circumstances to obtain his proportionate share in the proceeds of the sale of the land. If therefore, any notion of a cause of action is involved in a partition suit, pure and simple, it is this inherent right of a co-owner for the time being which constitute the cause of action"

A partition action has been viewed rightly as an action having a special character. This is, mainly due to the fact that every party in a partition action is really a plaintiff, when it comes to a question of  establishing his rights, and in that sense each party has the double capacity  of a plaintiff and a defendant. There could be situations where the plaintiff could be a mere onlooker when different sets of parties get involved in contests in regard to their claims in respect of the land. At other times, plaintiff may be presented with the task of defending his rights when other defendant parties dispute his claim to the land.

A special feature in a partition action is the final and conclusive nature of the interlocutory and the final decree as envisaged in Section  48(1) of the Partition Law. They are not like other decrees affecting land  merely declaratory of the existing rights of the parties inter sew They create a new title in the parties absolutely good against all other persons whomsoever. On an examination of the provisions of the Partition Law, it  becomes apparent that to realize these objectives every possible opportunity is afforded to any person who has a right, claim or interest in or upon the property to become a party to the action. The participation of every person who has a right, claim or interest in or upon the property is ensured by the wide publicity sought to be given to the action.

The registration of lis pendens, affixing of notices of the institution of the action by the fiscal on the land, oral proclamation by beat of tom tom  on the land and in the village where the land is situated, affixing notice of the partition action in the office of Grama Niladari for 30 days, oral proclamation by the Surveyor by beat of tom tom on the land before the survey, issuing of notice on the claimants who are not parties who come before the Surveyor, and the duty placed on a defendant to disclose any party who has a right, share or interest on the land have been designed to ensure the widest possible participation of all persons who have a right, share or interest in or upon the land sought to be partitioned.

Moreover, an obligation is imposed on the plaintiff in terms of Section 5 of the Law to include in the plaint all persons whether they are in actual possession or not, to his knowledge are entitled to any right, share or interest to of or in the land whether vested, contingent, whether by way of a mortgage, lease, usufruct, servitude, trust, life interest or otherwise or to any improvement made or effected to or on the land.

Disputes that could be resolved by a partition action

Although partition actions are primarily instituted to determine coownership almost all land disputes could be resolved by instituting a partition action. Once a final decree is entered in a partition action, it only resolves disputes amongst co-owners but also disputes existed between coowners and outsiders preferably the neighbours in respect of the co-owned land. Whilst resolving the disputes, the co-owners have the added advantage of being declared entitled to a divided portion of land to which they get what is referred to as, "Partition Title" which binds not merely the parties to the action but the whole world free of encumbrances not reserved in the final decree. Partition actions result in ejecting trespassers and resolve disputes as to title arising as a result of conflicting deeds and disputes in respect of devolution of title on an intestate succession. It would also result in resolving boundary disputes and encroachments on the co-owned land. 

Institution of a Partition Action

The jurisdiction for the purpose of instituting a partition action is governed solely by the situation of the subject matter of the action. A partition action cannot be brought in any Court other than in the Court  within whose local jurisdiction the land sought to be partitioned, is wholly  or partly situated. 

However, where there is uncertainty as to the jurisdiction of the Court on the question of situation of the land, it is competent for such Court, on being satisfied that there is ground for such uncertainty to record a statement to that effect and proceed to entertain and dispose of the action.

A partition action is instituted by presenting a written plaint to the District Court in whose local jurisdiction, the land is wholly or partly  situated. 

A plaint in a partition action has to contain certain particulars in addition to the particulars required in a plaint under the Civil Procedure Code.

The following particulars are required to be stated in the plaint under Section 4 of the Partition Law.

1. The name if any, the extent and the value of the land to which the action relates.

2. The description of the land by reference to physical metes and bounds or by reference to a sketch, map or plan which must be appended to the plaint.

3. The names and addresses of all persons who are entitled to or,  who claim to be entitled to, any right, share or interest to, of or in the land or to any improvements made or effected on or to the land and the nature and extent of any such right, share, interest or improvement so far as they are known to or, can be ascertained by the plaintiff.

4. A statement setting out with reference to a pedigree which shall be appended to the plaint, the devolution of the title of the  plaintiff. Whenever it is possible, the plaintiff may in the same statement set out the devolution of title of every other person disclosed in the plaint as a person entitled or claimed to be entitled to the land as to any right, share or interest to, of or in the land.

Although in the plaints in partition actions, it is stated that common possession is inconvenient, there no requirement that it should be so stated or proved.

In Marshal Perers Vs, Elizabeth Fernando (60 NLR 229 at 232) it was observed that —

"Partition Ordinance does not render essentialfor the plaintiff to prove in such a suit that common possession is inconvenient nor have the Courts held that inconvenience must be established"

The Plaintiff is required in terms of Section 5, to include in the plaint as parties to the action all persons whether in actual possession or not who to his knowledge are entitled to any right, share or interest in respect of the  land to which the action relates whether vested or contingent and whether by way of mortgage, lease, usufruct, servitude, trust, fidei commisum, life interest or otherwise or to improvement made or effected to the land. 

 The plaintiff along with his plaint must also file in Court in triplicate  an application for the registration of the action as a lis pendens addressed to the Registrar of Lands and the Court is required to transmit the same to the Registrar of Lands for registration. The plaintiff is required to deposit the estimated costs of the preliminary survey. After the registration of the lis pendens is effected and returned to Court, Attorney-at-Law for the plaintiff has to file a declaration in terms of Section 12 that he has personally inspected the Register as it relates to the land after the registration of lis pendens and containing a statement of the name of the 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 register, that address.

In terms of Section 13(1) of the Partition Law, Court would order summons to be sent to the defendants by registered post, and the notices to be filed in Court under paragraph (b), (c). (d), (f) and (g) of sub section 2 of Section 12 to the Grama Niladari by registered post, and to the Fiscal under sub section 3 of Section 15 for exhibition and proclamation where the Court is satisfied that the following requisites are fulfilled.

1. That the partition action has been duly registered as a lis pendens.

2. That the estimated costs of the preliminary survey of the land have been deposited in Court. 

3. That the plaintiff in the action has complied with the provisions of Section 12 of the Partition Law.

It is significant that where the plaintiff fails to comply with the 

imperative requirements of Section 4, Section 5 or Section 6 of the Partition Law as to the requisites of the plaint, the inclusion of parties and the registration of lis pendens, the Court has the power under Section 7 to return the plaint, for the plaintiff to comply with the requirements or to  reject the plaint. These powers of the Court are in addition to the right of the Court to reject the plaint on any ground under Section 46 of the Civil Procedure Code.

It must be noted that once a plaint is accepted, the Court has no power to reject it at a later stage under Section 6 of the Act.

In Vethavanam Vs. Ratnam (60 NLR 20) the plaint in a partition action which had already been accepted by the Court, was subsequently rejected on the ground of non-disclosure of a party, it was held that once a plaint is accepted and is not prima facie defective, the Court has no power to reject it subsequently, under Section 7 read with Section 4 of the Partition Act.

There is an exception to this rule based on the principle of nunc pro tunc. Thus where there is something ex facie defective in the plaint which   necessitates its rejection but due to an oversight, it had not been rejected and the attention of the Court is later drawn to it, it is the duty of the Court  to reject a plaint or to return it to the plaintiff for amendment. (Vide Read  vs. Samsudeen (1 NLR 292). 

Preliminary Survey

Section 16 of the Partition Law makes it obligatory on the Court to order the issue of a commission to a Surveyor to survey the land to which the action relates and to make a due return to the commission. This order has to be made along with the order to issue summons on the defendants. The date on which the Surveyor is required to make the return to his commission should not be a date, earlier than 30 days prior to the date specified in the summons.

However, there is provision for the Court for reasons to be recorded to extend time the date fixed in the commission for the return thereof on the application made by the Commissioner. Nevertheless, each such extension should not exceed 60 days.

The commission issued to a Surveyor has to be substantially in the form set out in the second schedule of the Partition Law.

On receipt of the commission, the Surveyor is required to fix a date for commencing the survey of the land and at least 14 days before that, issue notice in Writing under registered cover to all the parties of his intent to survey the land on that date. In addition to this written notice, he is required, not •less than 14 days before the date fixed by him for commencing the survey, to cause the fact that he will commence the survey on that date to be orally proclaimed by beat of tom tom on the land. It is to be noted that Section 16 of the Partition Law empowers the Court 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.

In terms of Section 19 of the Partition Law, it is open to a defendant to seek a larger land than that sought to be partitioned by the plaintiff to be made the subject matter of the partition action in order to obtain a decree  for the partition or sale of such larger land. In such a situation, the defendant is required in his statement of claim to include a statement of the particulars, required by Section 4 in respect of such larger land, and he

should comply with the requirements of Section 5, as if his statement of claim were a plaint under the Partition Law in respect of such larger land.

Where any defendant seeks to have a larger land made the subject matter of the action, the Court is required to specify such party on or before which to file an application for the registration of lis pendens to be filed in Court and the estimated costs of survey of such larger land as determined by Court to be deposited in Court. If the action is registered as a lis pendens affecting the larger land and the estimated costs of the survey  of the land have been deposited, the Court should add as parties to the action all persons disclosed in the statement of claim of the party at whose  instance the larger land js being made the subject matter of the action, as   being persons who should be included as parties to an action in respect of  such larger land under Section 5.

In addition to this requirement, Court has to proceed on the basis that, action has been instituted in respect of such larger land and fix a date before which the parties specified should comply with the requirements of Section 12 in respect of the larger land.

  It is significant that where the larger land is made the subject matter of the action, statement of claim of the party seeking the inclusion of larger land is treated as a plaint in the action and the provisions of the Partition  Law in respect of declaration of Attorney-at-Law and the relevant papers to be filed which such declaration, issue of summons, service of summons and publication as provided in Section 12, 13 and 14 mutatis mutandis would apply.

The defendant party at whose instance the larger land is made the subject matter of the action, is required in lieu of an amended statement of claim, file an amended caption including there, as parties to the action all persons not mentioned in his statement of claim but who should be made parties to the action for such larger land under Section 5.

The Court is required to order summons and notice of action and also order survey of larger land and the provisions of Section 16, 17 and 18 should apply accordingly to such survey.

However, where the defendant who sought to make the larger land , the subject matter of the partition action fails to comply with the directions of Court in terms of Section 19(2)(b) and Section 19(2)(f) and to take steps under Section 12, Court is required to reject the claim to make the larger  land the subject matter of the action. Nevertheless, even if the defendant fails to comply with such directions, if there is another party who has made a similar claim, Court is obliged to afford him an opportunity to comply with such requirements and in the event of his failure to do so reject such claim.

If one examines the purport of these two sections, it would be clear that Section 16 would satisfy the assertion of a party who claims that such course of action is necessary for the adjudication of the action, whereas, Section 19 is available for a defendant who wishes to have the larger land as the subject matter of the action.

In re De La Motte (61 NLR 121), it was observed that — A Surveyor to whom a commission is issued is considered an officer of Court and that officers of Court cannot disobey its orders except at their peril The Surveyor when clothed with authority of a commission is not different from other officers of Court as Attorneys-at-Law or fiscal officers.

 Section 72 of the Partition Law provides that a Surveyor who makes a false return to any commission issued to him which he knows or has reasonable cause to believe to be false, shall be guilty of an offence and on  conviction before a Magistrate be liable for punishment. He also could be dealt with for contempt of Court. 

Section 73 of the Partition Law invest the Court with jurisdiction to prepare a list of Surveyors who reside or carry on business within the jurisdiction of the Court to whom commissions may be issued. It is   incumbent on the Court before including the names in the list of such Surveyors, to ascertain whether such Surveyors will be regularly available to undertake commissions issued by the Court.

The Surveyor should duly execute the commission issued to him and make due return thereto, on or before the date fixed for the purpose and 

transmit to Court the report in duplicate substantially in the form set out in   the second schedule and verified by an affidavit.

The report should contain the following particulars:

1. The date on which notice of survey was issued to the parties.

2. The nature of the land surveyed and of any buildings, walls, wells,  trees, plantations, fences and other improvements.

3. Whether or not land surveyed by him in his opinion substantially the land sought to be partitioned.

4. The parties to the action who were present at the survey and the  names and addresses of any person other than parties to the action who at the time of survey preferred any claim, the nature of claim   and the date of service of the notice referred to in Section 16(3).

5. The persons if any, who pointed out the land to be surveyed.

6. The result of his investigation of any particular fact or matter specifically referred to in the terms of the commission.

7. The existing means of access to the land from the nearest public road.  

  8. And, any fact or matter or circumstance relating to his survey or to the land surveyed which in his opinion may be necessary for or prove of assistance to the determination of the partition action.

Apart from the report as stated in the foregoing provisions, the Surveyor is required to transmit to Court a plan in duplicate verified by an affidavit showing the following.

1. The boundaries of any division of the land subsisting at the time of the survey.

2. The boundaries of any land belonging to the State which may fall within the land surveyed. 

3. The location of all buildings, walls and wells,

4. The trace or course of any road, path or stream within the boundaries of the land; and

5. 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.

He must also transmit a copy of his field notes.

The Partition Law mandates the Surveyor to carry out survey within  the terms of the commission. He is required to adhere strictly to the terms  embodied in the commission and to locate and survey the land he is commissioned to survey. If he is unable to locate the land he is commissioned to survey, he should report to the Court and ask for further instructions. (Vide Uberis Vs. Jayawardena (62 NLR 217).

In Brampy Appuhamy Vs. Menis Appuhamy (60 NLR 337), it was held that the Court acted wrongly in proceeding with a partition action where the land surveyed, was substantially not the land as described in the plaint. The commission was to survey a land of about 6 acres and the Surveyor proceeded to survey a land of only 2 acres and 3 roods.

Similarly, in the case of Sopaya Silva Vs, Magilin Silva (1989 (2) SLR

  105) — where the commission was to survey a land of 8 acres, 3 roods and 29 perches and the Surveyor surveyed an extent of 11 acres, 1 rood and 33 perches, it was held that on receipt of the Surveyor's report which disclosed that a substantially larger land was surveyed, the District Judge   should have taken one of the following courses of action after hearing the pa rties.

1. To reissue the commission to survey the land as described in the plaint.

2. To permit the plaintiff to continue the action to partition the larger land as depicted in the preliminary survey. This course of action would involve the amendment of the plaint and taking of other consequential steps including registration of a fresh lis pendens.

 3. To permit any of the defendants to seek a partition of the larger land as depicted in the preliminary survey. This course of action involves an amendment of statement of claim of the defendant and taking of such other steps as may be necessary in terms of Section 19(2).

Addition of Parties

There are two sections namely; Section 20 and Section 69 of the Partition Law which deal with the question of addition, intervention and substitution of parties in partition actions. This is a redeeming feature in the Partition Law which seeks to put an end to delay and confusion  occasioned by repeated interventions in partition actions. It is significant that in view of the far reaching effects of a decree in a partition action, the Court has a duty to ensure that all parties who claim a right, share or interest to the land to which the action relates are before Court.

Section 20 of the Partition Law mandates notice of partition action to be sent by registered post to two categories of persons —

1. Every claimant, who is not a party to the action but who is mentioned in the report of the Surveyor under sub section 1 of Section 18.

2. Every person disclosed under paragraph (c) of sub section 1 of Section 19 by a defendant in the action.

The plaintiff is required to file in Court the notices which are to be sent on  the claimants before the Surveyor. A defendant who had disclosed any  person in his statement of claim is required to file in Court notice to be sent to that person.

Any person receiving notice being a claimant before the Surveyor or being a person disclosed by the defendant in his statement of claim, should not be added as a party unless he applies by motion in writing, to be added as a party on or before the date specified in such notice.

Section 69 of the Partition Law contains 3 sub sections relating to the addition of parties.

 Section 69(1) provides for 2 categories of persons to intervene at any time before the judgment is delivered on such terms as to payment or prepayment of costs as the Court may order, namely -

1. Any person who in the opinion of the Court should be or should have been made a party to the action. They seem to be persons who are  necessary for the adjudication of disputes in the action, in the opinion of the Court. This section requires Court to issue notice on such person requiring him to make an application to be added as a party to the action on or before the date specified in the notice. He will not be added as a party unless he makes an application to Court to that effect.

2. Any person claiming an interest in the land applies to be added as a   party to the action.

Section 69(2) provides for a substitution of a party. This situation arises where a party to the action whose right, title and interest in the land to which the partition action relates are sold in execution of a decree or order of Court during the pendency of the partition action, the purchaser of such right, title and interest at the sale should be substituted for that person as a party to the partition action. This substitution could take place at any stage of the action and that person is bound by the proceedings in the partition action up to the time of his substitution.

Section 69(3) caters to a situation where a party to the partition action derives his right, share or interest to the land to which the action relates by virtue of revocable deed of gift made by any other person or an instrument which reserves to any other person the right to claim a retransfer of such right, share or interest within a period specified therein, such other person is entitled to intervene at any time before the judgment in the action and establish his right as if he had been a co-owner at the time of the institution of the action.

Prohibition Against Alienation 

Section 66(1) of the Partition Law provides that after a partition action is duly registered as a lis pendens under the Registration of Documents Ordinance no voluntary alienation, lease of hypothecation of any undivided share or interest of or in the land to which the action relates is to 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 of bythe entry of a certificate of sale.

Any voluntary alienation, lease or hypothecation made or effected in contravention of the provisions of sub section (1) is void. However, any such voluntary alienation, lease or hypothecation shall in the event of the partition action being dismissed shall be deemed valid - (Section 66(2).

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 is not affected by the provisions of sub section (1) and (2) of this section — (Section 66(3).

The object of this prohibition against alienation of a share or interest in the land subject to partition is clear, namely; that it is undesirable to allow the trial of partition action to be unduly prolonged and delayed by endless interventions of parties who derive interest in the land after the institution of an action.

In Subaseris Vs, Prolis (16 NLR393) Wood Renton A.C.J. observed that — The clear object of the enactment was to prevent the trial of partition actions from being delayed by the intervention of fresh parties whose interest had been created since the proceedings began. This observation was quoted with approval in Hewavssam Vs. Gunasekera (28 NLR 33 at 42) by Dalton J.

It must be noted that the prohibition against alienation relates to undivided shares or interests and not to divided shares. Although ordinarily, divided shares would not be contemplated in lands subject to partition, still there are instances where questions regarding divided separate portions of lands subject to partition can arise. Such instances arise where partition actions are instituted in respect of lands which are not held in common but which are possessed dividedly. Alienation of such   lands possessed dividedly is not prohibited in terms of Section 66.

 In Perera Vs. Attale (45NLR 210) an action for partition was dismissed on the ground that the land has been possessed dividedly and not in common. During the pendency of the action, the owner of one of the lots transferred her interest and the transferee also thereafter executed another transfer. As those transfers were effected during the pendency of a partition action, they were challenged as void in a subsequent action. But the Supreme Court held that Section 17 of the Partition Ordinance (Section 66 of the Partition Law is based on Section 17 of the repealed Partition Ordinance) did not render those transfers void and that each owner of each lot was free to dispose of his land as each lot was possessed dividedly and not in common.

The Law, as set out in this case on this point has been followed in the case of Giran Appuhamy Vs, Ariyasinghe (70 NLR 553). This case held that where in a partition action a particular portion of a land is excluded from the partition on the ground that some person or persons have title to it as a  separate land whether by prescriptive possession or otherwise, Section 67  of the Partition Act (this section is the equivalent of Section 66 of the  Partition Law) does not render void, dealings with that portion during the pendency of that action.  

It is noteworthy that the reasoning behind this decision is that the  expression "partition action" is defined as an action for the partition or sale of land or lands belonging in common to two or more co-owners and  hence, if a land which is included by a plaintiff in the corpus of a partition  action is in Law, a separate land excluded from the partition on that  ground, no prohibition exist for such an alienation.

The prohibition contemplated Section 66 of the Law is only against voluntary alienations and the prohibition does not extend to forced or necessary alienations,

In Perera Vs. Perera (9 NLR 217) it was held that the prohibition applies to voluntary and not to necessary alienations and that a fiscal's sale of the shares of some of the co-owners pending a partition suit is valid. It could be pointed out that if fiscal's sale of property pending actions can be held void, it would be a very easy matter for debtors to place their property beyond the reach of their creditors for an indefinite period by instituting partition proceedings in respect of their property. 

A fiscal's sale of property subject to partition actions is not held void, so that debtors would not be encouraged to defraud creditors under the pretext of partition actions. However, purchasers from a person who has brought at a fiscal's sale have been held not derive any interest in the  property for otherwise the purpose of the section would be defeated by endless substitution of persons who purchase interests of the property from those who had brought at fiscal's sale.

In Annamalai Pillai Vs. Perera (6 NLR 108) and Saparamadu Vs.  Saparamadu (10 NLR 221) — it was held that a purchaser from a person who has brought at a fiscal's sale any interest in the land which is a subject of a partition action derives no title whatsoever by his purchase.

The prohibition contained Section 66 of the Law in regard to voluntary alienations which include lease or hypothecation of any undivided share is from the point of due registration of lis pendens under the Registration of Documents Ordinance until the final determination of the action by way of dismissal of the action or by the entry of a decree under Section 36 or by the entry of a Certificate of Sale.

Although, any alienation, lease or hypothecation of an undivided share or interest in a land subject to a partition action is void, still it is possible for a person during the pendency of the partition action to  alienate, lease or mortgage, the right to which he might be entitled after   the partition decree. 

In the case of Hewawasam Vs, Gunasekera (28 NLR 33) — after interlocutory decree was entered, a commission was issued and a survey of land was made according to which it was proposed to allot to the defendant certain specific lots in the final decree. Before the final decree   was entered, the defendant transferred the said lots to the plaintiff with an undertaking to execute such other deeds as may be necessary to assure  more perfectly premises to the purchaser. The Supreme Court held by a majority decision that the transaction in question was not obnoxious to Section 17 of the repealed Partition Ordinance which is identical to Section 66 of the present Partition Law.

The interests in a land respect of which action was pending, were transferred in the following terms. "We do hereby sell and transfer all the rights and title described in the schedule belonging to us or the shares of the said property to be awarded by the decision arranged in partition case No.5303 now pending or the shares of the amount that will be realized by the sale of the said property". The Court held that the transfer was not obnoxious to Section 17 of the repealed Partition Ordinance. (Vide Salee Vs. Natchia (39 NLR 259).

Similarly in Khan Bhai Vs. Perera (26 NLR 204) — the Supreme Court  held that persons desiring to charge or dispose of their interest in a property, subject to a partition suit can only do so by expressly charging of the interest to be ultimately allotted to them in the action.

The question whether such a conveyance would pass an immediate interest in the property was affirmatively answered in the case of Manchanayake Vs, Perera (46 NLR 457).

 Although any such conveyance by a co-owner passes an immediate interest in the property, the title to such property can only accrue upon the entering of the final decree. (Vide Naseer Vs, Hassim (48 NLR 282). 

It is important to note that a mere agreement to transfer a divided lot after the final decree does not convey an immediate interest. (Vide

Abeysuriya Vs, Gunawardena (47 NLR 397).

Trials

On the date fixed for the appearance of parties in Court or before such later date as the Court may fix for the purpose, any defendant in the action has the right to file a statement of claim setting out the nature and extent of his right, share or interest to the land to which the action relates. If he disputes any averment in the plaint relating to the devolution of title, he is required to file together with his statement of claim a pedigree showing devolution of title.

Every party to the action, not less than 30 days before the date of trial, should file in Court a list of documents relied on by him to prove his right, share an interest in respect of that land together with an abstract of the  contents of such documents.

No party js entitled except with the leave of Court which may be granted on such terms as the Court may determine to put any document in evidence on his behalf if that document is not specified in the list filed or cause to filed by him. This prohibition will not apply to documents produced for cross-examination or handed to a witness merely to refresh his memory.

Any party to the action who desires to inspect any document specified in the list of documents filed in Court by any party to the action may, by motion ex parte 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 inspection of such party or his registered Attorney and to permit such party or registered Attorney to take copies thereof. If a party who has been ordered to produce the document specified fails to do so, he will not be permitted to put the document in evidence on his behalf in the action unless he satisfies the Court that he had sufficient cause for  his non-compliance with the order.

After the expiry of the period fixed for the filing of statements of claim and after the receipt of the return of the Surveyor to the commission for preliminary survey, the Court is required to appoint a date for the case to be called in open Court to fix the date for trial. The Court is required to give notice in writing of such date by registered post to all the parties who have furnished registered addresses and tendered the cost of such notice as provided by sub section (3) of Section 19.

  Every party to a partition action not appearing by a registered Attorney should on or before the date specified in the summons or such  later date as the Court may fix deliver to the Registrar a memorandum substantially in the form set out in the second schedule setting out an address for the service on him of the notice of the date calling the case to be fixed for trial and any other legal documents to be served on a party and tender stamps to the value required to cover the postage by registered post

(Section 19(3)(a)).

The registered Attorney appearing for any defendant should tender to the Registrar stamps to cover the cost of postage by registered post of the notice of the date calling the case to be fixed for trial. (Section

At the trial of a partition action, Court is required to examine the title of each party. For this purpose, Court is obliged to hear and receive evidence in support thereof and try and determine all questions of fact and  Law arising in the action in regard to right, share or interest of each party in respect of the land to which the action relates.

If a defendant has failed to file a statement of claim on the due date, the trial has to proceed ex parte against him and he is not entitled without  the leave of Court to raise any contest or dispute the claim of any other  party to the action at the trial. But the Court is under a duty to examine the title of each party and even a defendant in default could produce his title deeds subject to the provisions regarding listing. It is to be noted that the prohibition imposed on a defaulting party defendant is in respect of raising a contest or dispute the claim of any other party. But he is not precluded from sailing with either the plaintiff or any other defendant and produce his title deeds.

Nevertheless, Court is vested with discretion on being satisfied of the  bona-fides of the claim or dispute and upon terms allow the defendant in

default to file a statement of claim and to participate at the trial after notice to the parties affected by such claim or dispute. (Section 25(3)).

Any party, who fails to produce in Court at the trial any document relating to his title, is liable to pay the costs incurred by any other party in procuring the document or in furnishing proof of its contents, if the Court   so orders him, on being satisfied that such document is material for establishing his title. (Section 22). 

Where a party omits to prove his title, the Court has the power to permit one of the other parties to prove the title of such party in default.

The cost of proving such title can be recovered from the party in default.

The binding and conclusive character of a partition decree renders it imperative that the investigation of title undertaken by the Court should be thorough and painstaking. It is the duty of the Court to hold a careful   investigation and act only on clear proof of the title of all the parties. It will not do for a plaintiff merely to produce the title deeds and rely on the   shares which they purport to convey. It is frequently seen, that the deeds sometimes purport to convey inaccurately the right parties are entitled to in Law.

 Before a Court can accept as correct a share which is stated in a deed to belong to the vendor, there must be clear and unequivocal proof of how the vendor became entitled to that share.

In adducing evidence on the pedigree the parties would find that various disputes could arise in respect of relationships of the ancestors from which they claim rights. Those disputes may relate to relationships by blood relating to birth, marriage or death of predecessors of the parties. In the absence of documentary evidence in respect of incidents which had occurred long ago the material possessed by the parties to place before Court may amount to hearsay evidence.

Section 32(5) and Section 32(6) of the Evidence Ordinance could be availed of by the parties to lead oral evidence to prove a pedigree in the  absence of documentary evidence such as Birth, Death or Marriage  Certificates.

It is to be noted that Section 32(5) of the evidence ordinance admits oral evidence relating to existence of relationships between any persons whether living or dead if the following conditions are present.

1. It must relate to the existence of any relationship by blood, marriage or adoption between certain persons.

2. The person making the statement must have special means of  knowledge of such relationship of such persons.

3. The statement must have been made before the question in dispute  was raised.

Section 32(6) of the Evidence Ordinance which deals with family pedigree admits statements which satisfy the following requisites -

1. They must relate to any relationship by blood, marriage or adoption between deceased persons.

2. They must be made in any will or deed relating to the affairs of the   family to which such persons belonging or in any family pedigree or upon any tombstone or on a family portrait or other thing on which such statements are usually made.

3. They must be made before the question in dispute arose. (Vide Cooray Vs. Wijesuriya (62 NLR 158)). 

Disputes in regard to deeds may arise due to several reasons namely —

1. Priority by registration.

2. Conflicting deeds emanating from different sources.

 3. Deeds which may not pass any title. 

4. Deeds which purport to convey divided interest. 

 5. Where due execution of deeds are challenged.

Proof of Plans and Deeds etc.

Section 18 sub section (2) stipulates that the Surveyor's report and the plan of the land surveyed and certified copy of his field notes may be used as evidence of the facts stated therein at any stage of the partition action without further proof.

  However, Court is required on the application of any party to the action and on such terms as may be determined by Court order that the Surveyor be summoned and examined orally on any matter arising on any document or any statement of fact therein or any relevant facts which is alleged by any party to have been omitted therefrom.

It is not necessary to adduce formal proof of the execution of any deed which is on the face of it purports to have been duly executed unless the genuineness of the deed is impeached by a party claiming adversely to the party producing that deed or unless the Court requires such proof.

It is also relevant to state that proof in respect of ownership of a permanent plantation apart from the soil, could be established by proof of any agreement with the owner of the land or of any custom recognized in a   locality in which the land is situated notwithstanding the provisions of the

 Prevention of Frauds Ordinance (Section 54(2)).

Corpus Dispute  

Disputes could arise in respect of the land which forms the subject matter of the action. They may relate to the identity of the land which has to be resolved as a preliminary issue. Other disputes in respect of the land may arise in many ways and some of which may be due to the following reasons.

1. Where the plaintiff drops a portion of the corpus and shows a &iffi+a-F   extent.

  2. Where the plaintiff shows a larger land than what actually is, encroaching on to another land.

3. Where the additional land is taken on superimposition of an old plan.

40 Where the Surveyor makes an error.

It may be noted that these problems are distinct from the problems posed by the defence that the land has been amicably partitioned and that there was a termination of co-ownership.

Improvements

At the trial disputes may also arise in respect of improvements effected by the co-owners. They may relate to buildings or plantations standing on the land. There may be instances where the co-owner residing on the land may claim that he has effected improvements to the ancestral house standing on the land. There may be claims of effecting new plantations on the land in addition to the old plantations which are claimed on a common basis.

Ordinarily, the rule applicable in respect of improvements is that wherever possible a co-owner should be given at the partition a lot which  carries his improvements. This principle however cannot be adhered to in all the circumstances. If in the process of giving effect to that order substantial injustice is likely to be caused to other co-owners, this principle should not be adhered to. (Vide Premathiratne Vs. Elo Fernando (55 NLR 369)).

In JD, Liyanage Vs, LOH. Thegjris (56 NLR 546) — it was held that in an action for the partition of land in common, the rule that a co-owner should be allotted a portion which contains his improvement, is not an invariable

rule. It will not be followed if it involves a substantial injustice to the other co-owners.

Where therefore co-owner "A" who wrongfully demolishes a building put up by the co-owner 'd B", and erects on its foundation another building, "A" will not in preference to "B" be allotted the portion of the land on which the building stands. The question, as to who should get the lot with the building, may be decided at the stage of partition if there is no provision in regard to it in the interlocutory decree.

In Kumarasinghe Vs. Andirishamy (55 NL5 539) it was held that   when a Court enters an interlocutory decree in an action for the partition of  a land, it would be acting prematurely if without examining all the relevant considerations, it gives unconditional special directions to the Commissioner to the effect that a co-owner who had made certain improvements should be allotted in lieu of his undivided share, specified portion which includes those improvements.

At the end of the trial in partition actions or a later date fixed by the  Court, the Court should pronounce judgment in open Court. As soon as the judgment is pronounced, the Judge is required to enter an interlocutory decree according to the judgment, The interlocutory decree may include one or more of the orders referred to in paragraphs (a) — (g) in sub section

(2) of Section 26.

Uncontested Trials, Settlements and Compromises

It is a common occurrence in trials in partition actions that all parties agree on the devolution of title and there is no dispute among them in regard to soil rights or improvements. It is necessary for the plaintiff to lead evidence in Court on the pedigree in the plaint and produce all the deeds and other documents necessary to establish right, title and interest of the parties. If the land contains improvements by way of plantation and buildings evidence must be led as to the ownership of them. It is also necessary to lead in evidence the preliminary plan and the report to identify the land sought to be partitioned. At the conclusion of the evidence of the plaintiff or any other party, it is the duty of the Court to examine the title of each party and satisfy itself as to their rights. In view of the conclusive nature of the decree, it is mandatory on the Court to arrive at a finding as to the rights to the soil and to the improvements after an  examination of the evidence placed before it.

The parties to the action may settle their disputes in respect of devolution of rights and the improvements made on the land. In such situations, it is necessary for the parties to inform Court that they have   resolved their disputes and have entered into a compromise.

In Kumarihamy Vs. Weragama (43 NLR 265) — it was held that there is nothing to prevent a Court allowing parties to a partition suit to compromise their disputes provided the Court has investigated the title and has been satisfied that parties before it alone have interest in the land to be partitioned and once a compromise allowed the parties are bound by its terms.

In W,G. Rosalin vs, HOB. Maryhamy (1994 (3) SLR 262) - the Court of  Appeal held that when an agreement is entered into, the Court has to be satisfied as to whether the agreement is between all the parties having interests in the land sought to be partitioned. In the event of such an  agreement the respective shares or interest given to each party is based  upon the compromise that is reached and not on examination of title.  

 It was observed that in this case that on the date of trial 7th  defendant was not represented by her registered Attorney and a purported settlement had been contrived by the other parties represented by  Counsel, seriously affecting the interests of the 7th defendant, whilst the trial Judge played the role of a blind umpire. A deed in her favour more than 25 years old had been suppressed and the interest accrued by that deed was given to the plaintiff on the basis of intestate succession. She was made to understand that all was well and that her interests as claimed would be given to her. It was held that a serious miscarriage of justice had been caused to her and the judgment and the interlocutory decree was set aside.

Conclusive Nature of the Partition Decree

The conclusive effect of a partition decree is a matter of great importance as the purpose of a partition decree is to give the persons   entitled to rights under it, a title good against the whole world. Sub

section (1) of Section 48 of the Partition Law provides that the interlocutory decree and the final decree shall subject to any decision on appeal be good and sufficient evidence of the title of any person as to any right, share or interest awarded therein to him. They are also final and conclusive for all purposes and against all persons whomsoever whatever right, title or interest they have or claim to have to or in the land to which the action relates. The decrees, it is provided, have these effects notwithstanding any omission or defect of procedure or in the proof of title adduced before the Court or the fact that all the persons concerned are not parties to the action.

It is also provided that the right, share or interest awarded by a partition decree whether interlocutory or final is free from all encumbrances whatsoever other than those specified, if any, in the decree.

The encumbrances which are wiped out are mortgage, lease usufruct, servitude, life interest, trust or any other interest except those which are specified therein. It is specifically provided that a constructive or charitable trust or a lease at will or for a period not exceeding one month  are not wiped out by as partition decree. It has also been provided that the provisions of Section 44 of the Evidence Ordinance do not apply to a partition decree.

Omission or defect of procedure would include an omission or

failure-

1. To serve summons on any party; or

2. 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 

3. To appoint a guardian ad [item of a party who is a minor or a persOn of unsound mind.

However, the interlocutory decree or the final decree of partition  entered in a partition action have been deprived of its final and conclusive effect by sub section (5) of Section 48 against a person who was not a party to the partition action, but who claims any such right, title or interest to the land to which the decree relates as is not directly or remotely derived from the decree, if he proves that the decree has been entered by a Court without competent jurisdiction.

  The provisions in respect of finality of interlocutory and final decrees would be applicable in respect of sale of the land in terms of Section

Section 48(4) Relief : 

After judgment is delivered in a partition action intervention is not permissible in the trial Court. Section 48(4) enables certain parties to have the interlocutory decree amended or modified for a limited purpose.

In view of the finality given by Section 48(1) of the partition Law certain parties to the partition action can loose their rights if they are parties on record;

1. Who have not been served with summons and thus were ignorant of the action. In this instance a person has lost his rights without a hearing in breach of a fundamental rule of natural justice. Such  person can move to have the interlocutory decree altered.

2. Persons under a disability namely; minors and persons of unsound mind who have not been duly represented by a guardian ad litem. The duly appointed guardian ad litem can move to amend or modify the interlocutory decree.

3. A party, who fails to appear at the trial; such a person to succeed in his application has to establish two matters.

a) He should have duly filed his statement of claim, and

b) He should have registered his address.

The application for special leave to establish right, title or interest in the foregoing instances is by petition and affidavit and must conform to

Section 48(4)(c).

There is a time limit for the making of such an application being 30 days after the date of receipt of the Surveyor's return in respect of the scheme or where a sale has been ordered 30 days after the return of the  report of the person responsible for the sale. (Vide Perera Vs, Perera

(1978-1979 - 2 SLR 191),

If at the inquiry, the Court is satisfied that the requirements of Section 48(4(c) are fulfilled, Court will settle the issues which are relevant to the claim set out in the petition. Thereafter, the Court will try those issues after notice to all the parties who are likely to be affected. Where  the Court determines the matter in favour of the petitioner then the  interlocutory decree will be amended or modified to give the successful   party his due rights. If the Court finds that the petitioner is entitled to the   entire land, the decree will be set aside and action will be dismissed.

Final Scheme

After the interlocutory decree is entered a commission is issued for the partition of the land. After the surveyor makes a return to the commission Court is required to call the case in open Court and fix a date for the consideration of the scheme of partition proposed by the Surveyor. On the date of the inquiry, Court may confirm with or without modification

the scheme of partition proposed by the Surveyor and enter final decree of partition accordingly.

It has been held in Gunasekera Vs. Soothanona (1988(2) SLR 8) - that the Commissioner's scheme of petition should not be lightly ejected. In this case, it was observed further if the alternative scheme is preferred by the Court the proper course to adopt would be to remit the case with a direction to modify the scheme on the lines prepared in the alternative scheme.

In Hendrick Vsw. Gimarahamine (47 NLR 30) — it was held that a scheme of partition submitted by a Surveyor is found to be better than that submitted by the Commissioner in case, the proper course to adopt would be to remit the case to the Commissioner with a direction to modify the scheme on the lines prepared by the Surveyor.

Dismissal of Partition Actions and the Plea of Res Judicata

The following sections of the Partition Law provide for the dismissal of partition actions on grounds specified in those sections.

1. Section 9 of the Partition Law — for failure of the plaintiff to deposit   the costs of the preliminary survey.

2. Section 12(3) of the Partition Law — for failure of the plaintiff without sufficient cause to comply with the provisions of Section 12 in respect of the declaration by the Attorney-at-Law and tender of summons and notices.

  3. Section 29(3) of the Partition Law — for the failure to deposit the costs of the final survey.

4. Section 62 of the Partition Law — for failure by the plaintiff when being ordered to give security for costs when the Court is of the opinion that the plaintiff is guilty of unreasonable delay in presenting or prosecuting his claim.

5. Section 65(b) of the Partition Law — where the plaintiff has failed to  pay costs and charges due from him in a previous partition action.

6. Section 70(2) of the Partition Law — for failure to take steps to prosecute the action for a period of 2 years on application made by a party or any person claiming any interest in the land.

However, in terms of Section 75(1) of the Partition Law, the dismissal of a partition action under Section 9, 12, 29, 62, 65 or 70 will not operate as a bar to the institution of another partition action in respect of that land.

 In Sanchiappu Vs, Jeerisappu (22 NLR 176) the principle was   accepted that dismissal of a partition action on the ground that the plaintiff  had neither paper title nor title by prescription is no bar to a subsequent action for declaration of title between the same parties. However, this conclusion was based on the fact that the previous judgment did not consider the relative merits of the claims of the plaintiff and the defendant. 

In Fernando Vs. Menikrala (5 NLR 369) — it was held that the  dismissal of an action for the partition of a land on the ground that the plaintiff had failed to prove that he had a share, cannot be pleaded as res judicata in a subsequent action brought by the plaintiff for a declaration of title to that share, The reason for this was that in the partition action he had to prove an absolutely good title against all the world, whereas in the

other action he was required to prove only a better title than that of the defendant. This conclusion was endorsed in Abeysundara Vs, Babuna (26 NLR 459).

The principles upon which the doctrine of res judicata is made applicable to partition cases were summarized in Kandavanam Vs.

Kandavanam (57 NLR 241 at 246) as follows.

"Every decree for partition involves a determination that each person found to be co-owner had established title which was good against the whole World. But in particular cases disputes also arise as to the merits of competing claims between parties inter se. It therefore follows that a plea of res judicata arising in connection with a decree entered after  adjudication in a partition action must always be answered by examination of the particular matters in issue which had actually been decided. If therefore an action had been dismissed on the merits in view of an adjudication as to a particular point of contest that adjudication certainly operates as res judicata. On the other hand the order of dismissal may  proceed from other grounds for example because the parties had failed to establish a title sufficient to justify a decree in rem. In that event the rule of res judicata would probably not apply".  

It is to be noted that this approach was the basis of the decision in Saram Appuhamy Vs, Martinhamy (12 NLR 102) — where it was held that where a partition suit was dismissed on the ground that the defendant had acquired title by prescription, in a subsequent action brought by the defendant to vindicate title to the land, the judgment in the partition suit operated as res judicata and prevented the parties from raising the question of title once again.  

In Silinduhamy Vs, Weeraperuma (56 NLR 182) two principles governing the doctrine of res judicata were set out.

1. A judgment of a Court of competent jurisdiction directly upon the point in dispute is a bar between the same parties or those claiming through them if pleaded; but if not so pleaded the matter is left at large.

2. Where there are conflicting judgments inter partes the latter  adjudication should be taken as superseding the earlier. 

In Fernando vs, Perera (58 NLR 133) — it was held that the interlocutory decree entered in an earlier partition action is binding on the parties and operates as resjudicata in regard to the title of the parties in a subsequent partition action.

In Giran Appuhamy Vs. Ariyasinghe (70 NLR 553) — it was held that if a party to an action set out a claim of title and if a finding as to his title has to be reached and is in fact reached that finding is in Law res judicata between the parties despite any opinion to the contrary expressed by the trial Judge.

But however, this result will not follow if there is no adjudication on title (Roweena Umma Vs. Rahuma Umma (41 NLR 522)).

If a partition action is dismissed before a contest has arisen for nonprosecution, a subsequent action of partition of the same land is not barred.

Where a partition action is dismissed in terms of Section 84 of the Civil Procedure Code on the ground of non-appearance of the plaintiff on the trial date and without any adjudication on the plaintiff's rights, the order of dismissal would not operate as res judicata in a subsequent action brought by the plaintiff in respect of the same land. (Dingiri Amma Vs.

Appuhamy (72 NLR 347)).

Common Ownership 

Common ownership in respect of lands could be created by the provisions of a deed or a last will or it may arise on an intestacy. What is understood as common ownership is where persons do not hold land on separate and distinct titles or where land is not held in separate and divided lots. Ownership in undivided shares represents the essence of the concept of co-ownership. There is no division of the co-owned property into separate lots and each co-owner is entitled to the entirety of the property in proportion to the extent of his undivided interest.

44

A partition action can be brought only by a person who has undivided interest on the land. In terms of Section 2 of the Partition Law, where the land belongs in common to two or more persons, anyone or more of them could institute an action for the partition or sale of such land. It is to be noted that co-ownership could also be terminated without the intervention of Court with the express consent and willing participation of all the coowners or without such consent for example by prescription. In situations where the undivided interest of a co-owner has been converted into a divided interest by an amicable or by prescription an action for a partition cannot be resorted to. The question whether a 'co-owner has  dividedly possessed a land arising from an amicable partition intended to  be permanent division of the land or whether he has acquired a  prescriptive title to a divided lot as against the other co-owners is a question of fact.

In view of the imperative provisions contained in Section 2(1) of the Partition Law, the fundamental issue to be resolved initially in a partition action is whether the land sought to be partitioned is commonly owned.

As stated earlier, co-ownership of a land could be terminated without the intervention of Court with the express consent and willing participation of all the co-owners. This process could take the form of an amicable division by the execution of a deed of partition or of cross  conveyances in reference to a plan, which would immediately terminate coownership with the like effect of entering of a final decree in a partition action or by an internal division in reference to a plan and entry into separate possession of the divided allotments by the respective co-owners to whom such lots were allotted, In the latter situation, co-ownership does not come to an end immediately but would end in Law only upon the effluxion of a period of 10 years of undisturbed and uninterrupted possession of such divided portions. Proof of such termination would depend on evidence whether direct or circumstantial or both and is a question of fact.

The termination of common ownership without the express consent of all the co-owners could take place where one or more parties either a complete stranger or even one who is in the pedigree claim that they have prescribed to either the entirety or a specific portion of the common property.

Such a termination could take place only on the basis of undisturbed  and uninterrupted adverse possession by such claimant for at least a period of 10 years. In this instance as well, proof of such termination would be a question of fact based on the evidence either direct or circumstantial or both.

Prescription among Co-owners

The general principle recognized by our Law in respect of co-owners is that possession of one co-owner is in law the possession of other coowners as well.

In Corea Vs, Iseris Appuhamy (1911 — 15 NLR 65) — the Privy Council laid down for the first time in clear and authoritative terms the following principles —

1. That the possession of one owner is in Law the possession of other co-owners as well.

 2. That every co-owner must be presumed to be possessing in that  capacity. 

 3. That it was not possible for such co-owner to put an end to that title and to initiate a prescriptive title by any secret intention in his own mind; and

4. That nothing short of an ouster or something equivalent to ouster could bring about that result.

Thereafter in 1918 a full Bench of the Supreme Court in Tilakaratne Vs, Bastian (21 NLR 12) was called upon to apply the principles laid down in Corea Vs. Iseris Appuhamy and to consider the meaning and the application of the English Law principle of presumption of ouster.

In Corea Vs. Appuhamy - the Privy Council made reference to this principle, but did not declare that it must be considered as being applicable

in Sri Lanka as a corollary of the general principle as to continuity of common possession of the undivided property by co-owners.

But a principle analogous and indistinguishable from the doctrine relating to ouster was explicitly recognized in Ordiris Vs. Mendjs (1910 — 13 NLR 309 at 315) even before the decision in Corea Vs, Iseris Appuhamy and thereafter it was consistently applied in William Singho Vs, Ran Naide (1915 1 CWR 92) Mailvaganam vs, Kandiah (1915 - 1 CWR 175) ASP,Vs.

Cassim (1914—2 BAL. Notes 40).

The Prescription Ordinance governs the Law of prescription in Sri Lanka but it makes no specific provisions regarding prescription among coowners. Section 3 of the Ordinance declares that "proof of the undisturbed and uninterrupted possession by a defendant in any action or by those under whom he claims of lands or immovable property by a title adverse to or independent of that of the claimant or plaintiff in such action (that is to say a possession unaccompanied by payment of rent or produce or performance of service or duty or by any other act by the possessor from which an acknowledgement of a right existing in another person would fairly and naturally be inferred) for 10 years previous to the bringing of such action shall entitle the defendant to a decree in his favour with costs".

It would be seen that Section 3 of the Prescription Ordinance imposes two requirements in respect of any claim for prescription.

1. Undisturbed and uninterrupted possession

2. Possession by a title adverse and independent

It is clear that from judgment of the Privy Council in Corea Vs, Iseris Appuhamy that a co-owner in possession claiming the benefit of   prescription would be able to satisfy the requirement of possession by a title adverse and independent in two different modes; namely 

1. By proving that his entry was not by virtue of his title as a co-owner but depends on some other claim of title, or  

2. By proving that, although his entry was by virtue of his lawful title as a co-owner, nevertheless he had put an end to his possession in that capacity by ouster or something equivalent to ouster and thereafter   his possession had been by an adverse or independent title. 

In Tilakaratne Vs. Bastian, it was observed that the question whether possession by a co-owner is adverse must be considered in the light of 3 principles of Law, namely —

1. Every co-owner having a right to possess and enjoy the whole property and every part of it, the possession of one co-owner in that capacity is in Law the possession of all.

  2. Where the circumstances are such that a man's possession may be referable either to an unlawful act or to lawful title he is presumed to possess by virtue of the lawful title.

3, A person who has entered into possession of land in one capacity is presumed to continue it in the same capacity.

It is the 3 rd principle which has been the basis of Supreme Court decisions in several cases. The effect of the principle is that where any person's possession was originally not adverse and he claims that it had become adverse, onus is on him to prove that, not only he had an intention to possess adversely but he showed a manifestation of his intention to the true owner against whom he set up his possession. The burden the possessor would assume in this regard would be both definite and heavy. Thus, for a co-owner the mode of proving adverse possession would be to establish that although his entry had been qua —co-owner, the possession had commenced at some later time to be upon an assertion of an adverse title. 

 When ouster is sought to be established on the basis of a change in the character of possession, it was necessary to establish some definite facts from which one could legitimately infer a change in the nature of possessor's intention with regard to the holding of the land and some overt  act or acts through which this change in the possessor's intention is manifested. He must also establish that he commenced to do so from a certain date and that 10 years had elapsed from that date (Vide Dingiri Appu Vs, Mohotti Hamy (68 NLR 40)).

It is a common occurrence that co-owners possess specific portions of land in lieu of their undivided extents in a larger corpus. This type of  possession attributable to an express or classic division of family property amongst heirs is sufficient to prove ouster provided that the division is regarded as binding by all the co-owners and not looked upon solely as an arrangement of convenience.

This pesses-*e-n was accepted and acted upon in the following cases 1. Obeysekera vs. Endoris (66 NLR 457)

2. Simon Perera Vs. Jayatunga (71 NLR 338)

3. Nonis Vs. Peththa (73 NLR 1)

4. Hanny Alexandra Vs. Jayamanna (79 NLR Vol.(2) 184)

5. Dona Cecilea Vs. Cecilea Perera (1987(1) SLR 235)

6. Ponnambalam Vs. Vaitialingam (1978-79(2) SLR 166)

However, in Githohamy Vs. Karannagoda (56 NLR 250) in the   absence of proof of acquiescence by the other co-owners execution of a  deed relating to the entirety of the land was not considered as a basis of an act of ouster.

Similarly, in Sediris Appuhamy Vs. James Appuhamy (60 9NLR 297) where a co-owner and his successors in title had possessed for a period of 50 years or more a specific portion of the common property on the ground of convenience, it was held that separate possession could not by itself be regarded as adverse possession for establishing a prescriptive title and the circumstance that certain deeds were executed in relation to this specific portion was not material if the other co-owners were not aware of the execution of the deeds.

The claim of adverse possession between co-owners arising from absolute exclusion of one of the co-owners has to be examined with caution and discrimination.

In Britto Vs. Muthunayagam (20 NLR 327) — where father has possessed his widow's share after a quarrel with his children, it was held that the possession of the father was not adverse and that he continued to possess that property on his own behalf as well on behalf of his children.

  Similarly, in Hamidu Lebbe Vs, Ganitha (27 NLR 33) where one of the two brothers had been in exclusive possession for nearly 40 years, and excluded brother left the ancestral village, it was held that some definite facts have to be proved from which one could infer a change in the character of the possessor's intention with regard to the holding of the land.

On an evaluation of the above cases, it is abundantly clear that our Courts have consistently recognized the rule that undisturbed and uninterrupted possession by a co-owner does not suffice to entitle him to a decree unless there is proof of ouster of other co-owners.

In Tillakaratne Vs, Bastian, Bertram C.J. observed that — "It is the reverse of reasonable to impute a character to a man's possession which his whole behaviour has long repudiated. If it is found that one co-owner and his predecessors in interest have been in possession of the whole property for a period as far as reasonable memory reaches; that he and they have done nothing to recognize the claim of the co-owners; that he and they have taken the whole produce of the property for themselves and that these co-owners have never done anything to assert a claim to any share of the produce, it is artificial in the highest degree to say that such person and his predecessors in interest must be presumed to be possessing all this time in the capacity of co-owners and that they can never be regarded as having possessed adversely simply because no definite positive act can be pointed to as originating or demonstrating the adverse possession. Where it is found that pregumption of Law leads to such an artificial result it will generally be found that the Law itself provide a remedy for such a situation by means of counter presumptions. If such a  thing were not possible Law would in many cases become out of harmony with justice and good sense" 

Thus, in Tillakeratne Vs. Bastian emphasis was laid on the absurdity and artificiality which could prevail if there were no counter presumptions. This case held that counter presumption of ouster is part of the Law of this country and that it is open to the Court from lapse of time in conjunction with the circumstances of the case to presume that possession originally that of a co-owner had since become adverse.

The presumption of ouster could be drawn in certain circumstances

when the exclusive passie-a has been so continued that it is not reasonable to call upon the party who relied on it to adduce evidence that at a specific

property for a period as far as reasonable memory reaches; that he and they have done nothing to recognize the claim of the co-owners; that he and they have taken the whole produce of the property for themselves and that these co-owners have never done anything to assert a claim to any share of the produce, it is artificial in the highest degree to say that such person and his predecessors in interest must be presumed to be possessing all this time in the capacity of co-owners and that they can never be regarded as having possessed adversely simply because no definite positive act can be pointed to as originating or demonstrating the adverse possession. Where it is found that presumption of Law leads to such an artificial result it will generally be found that the Law itself provide a remedy for such a situation by means of counter presumptions. If such a thing were not possible Law would in many cases become out of harmony with justice and good sense" 

Thus, in Tillakeratne Vs. Bastian emphasis was laid on the absurdity and artificiality which could prevail if there were no counter presumptions. This case held that counter presumption of ouster is part of the Law of this country and that it is open to the Court from lapse of time in conjunction with the circumstances of the case to presume that possession originally that of a co-owner had since become adverse.

The presumption of ouster could be drawn in certain circumstances

when the exclusive pass-le-a has been so continued that it is not reasonable to call upon the party who relied on it to adduce evidence that at a specific

point of time in the distant past there was in fact a denial of the rights of the other owners. The duration of exclusive possession being so long, it would not be practicable in such a case to lead the evidence of persons who would be in a position to speak from personal knowledge as to how their adverse possession commenced. Most of the persons who had such knowledge may be dead or cannot be traced or are incapable of giving evidence when the case comes up for trial. In such a situation it would be reasonable in certain circumstances to draw the presumption of ouster. The counter presumption of ouster should not be applied lightly, it should be applied only if the long continued possession by a co-owner and his predecessors cannot be explained by any reasonable explanation other than that at some point of time in the distant past the possession became adverse to the right of the other co-owners. (Vide Abdul Majeed Vs, Ummu Zaneera (61 NLR 361)).

The principle as stated in Tillakaratne Vs. Bastian - that the inference of ouster can only be drawn in favour of a co-owner upon proof of circumstances additional to mere long possession has been consistently recognized and strictly applied. The presumption of ouster has to be applied if proved circumstances tend to show probability of an ouster and that there is difficulty or impossibility or adducing proof of ouster. The decision in Tillakatne Vs, Bastian recognized an exception to the rule that undisturbed and uninterrupted possession by a co-owner does not suffice to entitle him to decree unless there is proof of ouster of other co-owners.

This exception permits adversity of possession to be presumed in the face of circumstances additional to the fact of undisturbed and uninterrupted possession for the requisite period.

The Position of a Stranger

It is a well accepted principle that where a stranger enters into possession of a divided allotment of land claiming to be the sole owner although his vendor in fact had legal title only to a share, the rule that the possession of the one —co-owner is tantamount in Law to the possession of all the co-co-owners has no application unless his occupation of the whole land is reasonably capable of being understood by the other co-owners as consistent with recognition of their title.

In Sellappah Vs, Sinnadurai (53 NLR 121) one of several owners sold the entirety of the common property to a person who was a stranger and not to a co-heir. The stranger purchased the property without any knowledge or belief that any other party was entitled to any interest in the property. The Court held that the possession of the purchaser could not be treated as the possession of other co-owners.

In Punchi Vs, Bandi Menike (45 NLR 547) — the Court concluded that a purchaser commences his possession on a basis fundamentally different from the footing on which his vendor (who was a co-owner of the property) has possessed the property. This situation arises in circumstances where the purchaser entered into possession of the property on the assumption

that his vendor was the sole owner and that the deed in his favour conferred on him a sound title.

  In Fernando Vs. Podi Nona (56 NLR 491) one Cornis who was entitled to only an undivided 1/10th share of a land entered into a notarial agreement with a stranger called Maththa. By this agreement Cornis purporting to be sole owner employed Maththa to cultivate the entire land as planter for a period of 6 years expiring on 21st August 1877 after which   Cornis undertook to separate one half of the land and the new plantations and to grant the soil as well as the plantations to Maththa. Maththa carried out his part of the agreement but Cornis did not execute a formal conveyance of any part of the common land to Maththa in implementation of his contractual obligation. Nevertheless, the land was in fact divided into two allotments Nos. 1 and 2, and lot 2 and the plantations standing on it were openly and exclusively occupied ut dominus by Maththa and his heirs after the expiry of 6 year period. Maththa and his heirs were held to have acquired prescriptive title to entirety of lot 2 although its area far exceeded the extent to which Cornis had legal title to convey to a stranger.

 In Sabaratnam Vs. Kandanam (58 NLR 537) — the principle was reiterated that where a co-owner purports to sell entire common property   to a stranger and the latter enters into possession claiming title to the entirety, prescription would begin to run only where the stranger himself would appear to have entered into possession of the land after the sale to him.  

A further Principle is deducible from the decision in Rajapakse Vs. Hendrick Singho (61 NLR 32). The original owner Paulis has conveyed an undivided portion of the land to Thelenis by deeds executed in 1919 and 1920. Thelenis in 1921, transferred an undivided 11/19 shares to his grand son Gunasekera who in turn sold the undivided interest in 1927 to

Gunawardena. The plaintiff purchased the interest of Gunawardena in May 1953 and instituted partition action in August the same year. The defendants who were the descendants of the original owner and were thus entitled to the shares outstanding after the transfers in 1919 and 1920, claimed that they had exclusively possessed the entire land from 1922 and had divided the produce among themselves to the exclusion of the plaintiff's predecessors in title. The grand son of Thelenis who had been the predecessor of the plaintiff and had been the owner of undivided interest for about 6 years admitted at the trial that neither he nor his successor Gunawardena had ever occupied the land and that the defendants had lived on the land and enjoyed the produce to the exclusion of himself and Gunawardena. It was held on the facts that there was overwhelming evidence on which ouster against plaintiff could be presumed.

It is to be noted that the decision in this case rested on the premise that it is reasonable to assume that when a stranger purchases undivided interest in the land, he does so as an investment and with the object of enjoying his due share of the fruits. If having purchased such an interest a

stranger does not assert his right to possession but instead acquiesces in the exclusive appropriation of the entire produce by the members of the family of the original owner, it may be reasonable to presume from his  unusual conduct that he either acknowledged the exclusive rights of the family or else failed in his efforts to assert his rights.

In Kanapathypi/lai vs. Meerasaibo (58 NLR 41) Sansoni J. summarized the Law on this question in the following manner.

"The rule is well settled that when a co-owner conveys the entire land held in common to a stranger and the latter enters into possession of the entire land under the conveyance, he can by possession adverse to all the coowners for 10 years acquire a prescriptive title. But where such a stranger is aware at the time he obtains this conveyance that his vendor was only a  co-owner and was not the sole owner of the land, 10 years possession by him will not give him a prescriptive title. Such a purchaser cannot be said to have entered into possession as sole owner, for he had knowledge that there were others who owned shares in the land and he will be presumed to have possessed the land as a co-owner. The ordinary rule which applies to possession by co-owners will then apply, viz; that before one can prescribe against the others there must be an ouster or something equivalent to ouster".