parttion shedule of shares

More

34 of 2,897

THOTAGE ARIYASENA VS. MADDUMADEVAGE ALEN -  HON. A.W.A. SALAM, J P/CA C.A. Appeal No. 1104/96(F) D.C. Kalutara Case No.4259/P Before :A.W.A. Salam, J (P/CA) Counsel  : Asoka Fernando with Ms. A.R.R. Siriwardane for the Defendant-Appellants 1st, 4th and 16th and 78th Defendant-Appellants.                  Champaka Ladduwahetty for the Respondent. Argued on : 24.07.2014. Judgment decided on :06.08.2014. A.W.A. Salam, J. (P/CA) This is a partition action. The judgment and the interlocutory decree impugned in this appeal are dated 21.06.1996. The learned  District Judge having decided that the parties should be allotted  undivided shares failed to give exactly the shares each party will  entitled to in the judgment. The learned District Judge in that judgment states without specifying the undivided rights of the parties that the  plaintiff should tender a schedule of shares and if the schedule of  shares so tendered is consistent with the judgment it should be accepted as part and parcel of his judgment. 3 This judgment of the learned District Judge is totally violative of the provisions of the partition law. The judgment in the  strict sense of the law cannot be regarded as a proper judgment in  view of the direction given by the learned District Judge that the  schedule of shares directed to be tendered by the plaintiff should be  accepted as part and parcel of his judgment. This being plainly  obnoxious to the provisions  of the partition law I have no alternative  but to hold that the learned District Judge has failed to discharge the  elementary duty of discharging the most important aspect in the case. It is  settled law that in a partition action the trial judge must decide the  nature and extent of the interest each party is entitled to upon an  examination of the title in terms of Section 25 of the Partition Law. In C.A.116 and 1167/96(F) it was held that the failure of the District Judge to indicate the undivided interest of each party in  the interlocutory decree is a fatal irregularity which gives rights to the  judgment and interlocutory decree having to be set aside. It is appropriate  4 at this stage to refer to the decision in Memanis Vs Eide 59 Ceylon  Law at page 46. H/L Basnayake, C.J. with H.N.G. Fernando concurring  laid down the proposition that it is imperative to include the undivided  interest of each party in the interlocutory decree. The relevant passage  of the said judgment is quoted below.     "In his judgement the learned that district judge says; ''plaintiff's proctor will file a schedule of shares which  when filed will form part and parcel of this judgement"  and there is a schedule of shares filed which he has  adopted in entering the interlocutory decree. Section 25 of  the Partition Act, provides that the judge 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 that action relates, and shall consider and decide  which of the orders mentioned in section 26 should be  made. In the instant case there has been no determination  of the shares of the parties as required by the Partition Act. It is the shares so determined by the judge that the court is required to enter in the interlocutory decree. The course taken by the learned district judge is contrary to  the provisions of section 26 of the partition act. " Based on the above two decisions I am of the view  that the impugned judgment cannot be allowed to stand as it is totally inconsistent with the provisions of the partition law.  In the circumstances, the impugned judgment is set aside and the case send back for re-trial.     PRESIDENT OF THE COURT OF APPEAL