PARTITION- FAILURE TO CONFORM TO SECTION 25

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PARTITION - IDENTITY OF THE CORPUS


This is a partial action for “a portion of millagahawatta” in the extent of ½ an acre, registered in folios B 14/344 and B 63/82 and described in the plaint as a distinct portion of a larger land of 8 acres. The larger land is possessed as several distinct divided portions. Plaintiff claimed that the distinct portion is owned in common.

The 19th respondent claimed that a portion of the larger land was never possessed as a “distinct and divided portion” at any stage and disputed the pedigree of the plaintiff as well. The 10th Defendant disputed that the land in question is a divided lot from the larger land.

No points of contest were raised at the trial either on the identity of the corpus or as to whether the corpus formed a distinct and divided portion of the larger land. The District Judge dismissed the action and declared that the 7th, 10th and 19th respondents are entitled to shares as determined by him. On appeal the High Court, held that the action is liable to be dismissed as the entire corpus of eight acres is not properly identified and not depicted in the preliminary plan marked X.

The appeal to the Supreme Court revolved around the question of the identity of the corpus. The corpus had been admitted to be as shown in the Preliminary Survey Plan marked ‘X’ at the trial. Further questions that arose were whether the eight-acre larger land was not divided into separate lots and whether the corpus is not properly identified.

Held : When all these factors are considered together with the admission of the parties at the trial on the identity of the corpus, the High Court judges had failed to appreciate all items of evidence and the findings of the trial court and therefore had erred when they held that the corpus had not been identified.

Held further that the High Court Judge had erred by failing to engage in a proper inquiry and a retrial was ordered enabling a trial judge to consider all the evidence that would be presented before court by all parties afresh and enter a judgment after fully complying with all requirements including section 25 of the Partition Law.

 click on this to read judgment

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