SUBSTITUTION.
PARTITION LAW NO 21 OF1977
The law relating to the death of a party and the substitution of a legal representative in partition actions has undergone a profound and carefully structured evolution. When examined across the successive legislative regimes and judicial pronouncements, it reveals a clear movement away from procedural convention toward a statutory model grounded in finality and conclusiveness. The modern position cannot be appreciated unless one traces this development from its earliest doctrinal foundations through the statutory transformations and the judicial corrections that followed.
In
the earliest phase, under the Partition Ordinance during the middle of the twentieth
century, there existed no specialized statutory mechanism dealing with
substitution in partition proceedings. The matter was governed by the general
principles of civil procedure. The death of a party was treated as a serious
procedural event which interrupted the continuity of the proceedings. Unless
the legal representatives of the deceased were duly brought on record, the
court could not validly proceed. This position rested upon the fundamental
requirement that a court must have jurisdiction over the person against whom it
proposes to adjudicate. A decree entered in the absence of a necessary party,
or without proper representation, was liable to be treated as ineffective. In
this period, substitution was not merely procedural but was tied to the very
legitimacy of the adjudication.
The
Partition Act No. 16 of 1951, although an important statutory development, did
not fundamentally alter this position. While it introduced a more structured
approach to partition litigation, it did not create a self-contained mechanism
for dealing with the death of parties. The courts continued to rely upon
general procedural principles. The requirement of substitution remained
essential. The absence of substitution could still affect the validity of
proceedings, and the law did not provide any express protection against such
consequences.
The
position remained largely unchanged under the Administration of Justice Law No.
25 of 1975. That enactment reorganized procedural law in several respects, but
it did not introduce any significant innovation in relation to substitution in
partition actions. The death of a party continued to attract the ordinary
procedural consequences. The proceedings were regarded as defective if the
legal representatives were not brought on record. The court could not proceed
in ignorance of the death, and any adjudication made in such circumstances was
vulnerable to challenge.
A
more structured framework emerged with the enactment of the Partition Law No.
21 of 1977. This statute sought to codify and regularize the law relating to
partition actions. Section 81, in its original form, empowered the court to
appoint a person to represent the estate of a deceased party where such
appointment was necessary or desirable to enable the court to proceed. However,
this provision was discretionary in nature. It did not create an automatic
mechanism for representation. Nor did it insulate proceedings from the
consequences of non-substitution. It operated within a system that still
assumed the necessity of proper representation as a condition of valid
adjudication.
Section
81 of the Partition Law carried with it the following provision for
substitution.
Representation of deceased party or
co-owner.
81. Where a party to a partition action
or any other person entitled, or claiming or alleged to be entitled, to any
right, share, or interest to, of or in the land, dies after institution of that
action, the court may, on the ex-pare application of any other party appoint a
person to represent the estate of the deceased for the purposes of the action
if the court is satisfied, after such inquiry as the court deems fit, that such
appointment is necessary or desirable for the purpose of enabling the court to
proceed with the action with a view to its speedy determination;
and any decree entered, order made,
partition or sale effected, or thing done in the action shall, if the person so
appointed is a party to the action, be for all purposes as valid and effectual
as if the person lawfully entitled to the right, share or interest of the
deceased were a party to the action,
This
understanding of section 81 most clearly reflected in the original section
48(4)(a)(iii), which expressly contemplated the situation where a party died
before judgment and no substitution had been effected or no representative had
been appointed. It recognized that, in such circumstances, the rights of that
party might be extinguished or prejudiced by the interlocutory decree. It
therefore provided a remedy. The heirs or representatives of the deceased party
could apply, within a specified time, for special leave to establish their
rights notwithstanding the decree. This provision demonstrates that, under the
law as it stood prior to the amendment No 21 of 1997, non-substitution was
treated as a substantive defect capable of affecting rights and of undermining
the integrity of the proceedings.
The
judicial approach during this period was consistent with the statutory
framework. Courts regarded the death of a party as interrupting the
proceedings. The absence of substitution deprived the court of the necessary
jurisdictional completeness. A decree entered in such circumstances could be
set aside. Substitution was thus an essential procedural requirement,
intimately connected with the validity of the adjudication.
The
legislative policy underwent a decisive transformation with the enactment of
the Partition (Amendment) Act No. 17 of 1997. This amendment fundamentally
altered the legal framework. It introduced a comprehensive and forward looking
system designed to ensure that partition proceedings would not be derailed by
the death of parties. The amendment replaced the earlier discretionary
mechanism with a structured regime centred upon nomination, automatic
representation, and statutory validation.
Amendment
of Section 81.
Section
81 of the Partition Law was repealed by Section 27 of partition (amendment) Law
No 17 of 1997 and replaced with the following section renumbered as 81
containing 14 sub section each subsection systematically dealing with the procedure
on the death of a party.
Section
81 as amended is produced below.
Replacement
of section 81 of the principal enactment.
27.
Section 81 of the principal enactment, is hereby repealed and the following
section substituted therefor :-
Memorandum
nominating legal representative.
81. (1) Every party to a partition
action or any other person required to file a memorandum under this Law,
(hereinafter referred to as "the nominator") shall file, or cause to
be filed in court, a memorandum, substantially in the form set out in the
Second Schedule to this Law, nominating at least one person, and not more than
three persons, in order of preference, to be his legal representative for the
purposes of the action in the event of his death pending the final
determination of the action.
(2) (a) One of such nominees shall, in
the order of preference in which their names are set out in the memorandum, be
deemed to be the legal representative of the nominator for the purposes of the
action, on the death of such nominator.
(b) In the event of the death or
incapacity of any of the nominees whose names are set out in the memorandum,
the person next nominated in order of preference shall be deemed to be the
legal representative for the purposes of the action, in the event of the death
of the nominator.
(c) The person or persons so nominated
shall subscribe his or their signatures to the memorandum signifying consent to
be so appointed as legal representative. The signatures of the nominator and
those of the nominee or nominees so consenting to be appointed shall be
witnessed by an Attorney-at-Law or Justice of the Peace or a Commissioner of Oaths:
Provided however, that failure to file
such memorandum shall not by such failure alone render the plaint, statement of
claim, or application to be added as a party defective or, notwithstanding
anything in section 7, be a cause or ground for rejecting such plaint,
statement of claim or any application to be added as a party.
(3) The court may at any time before the
final determination of the action, on its awn motion or on the application of
any party, require a party to the action or any person required to file a
memorandum under the provisions of this Law, to file such memorandum on or
before a date appointed for such purpose by court.
(4) A nominee may, at any time prior to
the death of the nominator apply, with notice to the nominator, to court by way
of motion to withdraw his consent to be such nominee and in such event the
court shall make order that he ceases to be the nominee of the nominator and
shall cause the name of such nominee to be struck off the memorandum filed by
the nominator.
(5) A nominator may, subject to the
provisions of subsection (1) of this section, at any time before the final
determination of the action make application, with notice to the nominees, to
tender a fresh memorandum nominating one or more nominees. On the filing of
such new memorandum, the previous memorandum of such nominator shall stand
revoked and the nomination contained in such fresh memorandum shall forthwith
take effect.
(6) On the death of a nominator, the
person first nominated in the memorandum filed by the nominator in order of
preference, shall be deemed to be the legal representative of such nominator
for the purposes of the action from the time of his death.
(7) A nominee deemed to be the legal
representative of a deceased nominator shall be entitled to take all such steps
for the purposes of the action as the deceased nominator would have been
entitled to take had he been alive.
(8) (a) A nominee shall not decline to
act as the legal representative of the deceased nominator. He may however with
the leave of the Court first had and obtained, by way of petition and after
notice to the other nominees if any, of such nominator, apply for permission
from court to be released from the office of legal representative of such
nominator.
(b) In the event of the court granting
such permission, the nominee who is next in order of preference in the
memorandum filed by the nominator shall be deemed to be the legal
representative of such deceased nominator, for the purposes of the action.
(c) Where an application under paragraph
(a) of this subsection is made by a nominee who was the sole nominee or sole
remaining nominee of a deceased nominator, such nominee shall notice the heirs
of such deceased nominator regarding his application and in the event of the
court granting permission as aforesaid, such court shall appoint a consenting
heir of such deceased nominator to act as the legal representative of such
deceased nominator for the purposes of the action.
(9) Notwithstanding that a party or
person has failed to file a memorandum under the provisions of this"
section, and that there has been no appointment of a legal representative to
represent the estate of such deceased party or person, any judgment or decree
entered in the action or any order made, partition or sale effected or thing
done in the action shall be deemed to be valid and effective and in conformity
with the provisions of this Law and shall bind the legal heirs and
representatives of such deceased party or person. Such failure to file a
memorandum shall also not be a ground for invalidating the proceedings in such
action.
(10) (a) On the death of a party or
person who had failed to file a memorandum as required by this section, any
party or person may apply to court by an exparte application, requesting that a
person be appointed as the legal representative of such deceased party or
person and the court may, on being satisfied after inquiry that such
appointment is necessary, appoint a suitable person to be the legal
representative of such deceased party or person for the purposes of the action.
Such legal representative shall be bound by the proceedings had up to the time
of such appointment.
(b) Such application and appointment
shall not be a ground for the postponement of the trial or proceedings;
Provided that the court may, in its
discretion, after recording reasons therefor and on the prepayment of costs,
allow a postponement of the trial if in the opinion of court, it is in the
interests of justice to do so
(c) In ordering pre-payment of costs the
court shall take into account the date of institution of the action and the
dates on which trial was held prior to such application and the stage at which
the action is and any other matters which the court considers relevant.
(11) (a) An heir of a deceased nominator
may, at any time after the death of such nominator, apply to court to have the
legal representative of such deceased nominator removed and to have another
person named in such application or the person next named in order of
preference in the memorandum filed by the deceased nominator, appointed as such
legal representative. The person who for the time being is the legal
representative of the deceased nominator shall be made a respondent to such
application.
(b) The court may, upon being satisfied
that it is in the interests of the heirs of the deceased nominator to do so,
remove such legal representative and appoint the person next named in order of
preference in the memorandum filed by the deceased nominator or if there are
sufficient grounds for doing so, appoint the person named in the application,
as the legal representative of the deceased nominator.
(c) An application under this section
shall he by way of petition and affidavit and the court may in its discretion,
issue notice of the application to the other heirs, if any, of the deceased
nominator,
(12) No proceeding under this Law shall
be postponed or adjourned nor any step in the action postponed by reason of the
death of a party or person required to file a memorandum under this Law.
(13) An application under subsections
(4), (5),(8)(a), (10) or (11) shall not be aground for the postponement of the
trial. The court may however grant a postponement on the payment of costs by
the person making the application, if it is of the opinion mat it is in the
interests of justice to allow such postponement.
(14) For the purposes of this section
"legal representative" means, a person who represents me estate of a
deceased party or person, for the purposes of the action, by virtue of a
nomination, or of an appointment by court under this section.".
Procedural Rigidity to Statutory Finality in Partition Action.
Introduction:
The Tension Between Procedure and Finality
The
law relating to substitution and party representation in partition actions in
Sri Lanka reveals a striking and deliberate evolution from rigid procedural
orthodoxy to a pragmatic statutory regime designed to secure finality and
stability of title. This development must be understood historically, for it is
only through a careful tracing of its stages that one can appreciate the
present legal position and the jurisprudential shift that underlies it.
In
its essence, the evolution reflects a tension between two competing principles:
procedural justice, which demands the presence of all necessary parties, and
substantive finality, which insists that litigation must reach a conclusive
end. The modern law represents a decisive preference for the latter.
The Ordinance Era: Substitution as a
Condition of Jurisdiction
In
the earliest phase, during the period governed by the Partition Ordinances of
1844 and 1863, there existed no special statutory framework addressing the
consequences of the death of a party. Partition actions were governed by the
general law of civil procedure, and the principles applied were strict and
uncompromising.
The
death of a party resulted in the abatement of proceedings unless proper
substitution was effected. A court could not validly proceed in the absence of
necessary parties, and any judgment entered against a deceased person was
treated as a nullity. The requirement of substitution was not merely procedural
but jurisdictional. A court could not bind a person who was not before it, and
a dead person could not be represented in law.
Preservation of Procedural Orthodoxy under the Partition Act
of 1951.
The
Partition Act No. 16 of 1951, though introducing structural improvements, did
not alter the procedural consequences of death. Substitution remained as a general
procedural principle, and the absence of substitution continued to render
proceedings defective.
Partition
actions were still treated, in procedural terms, as ordinary civil actions, and
the law continued to prioritize the proper constitution of parties over the
completion of proceedings.
Continuity of the Classical Rule under
The Administration of Justice Law No 25 of 1975.
The
Administration of Justice Law reinforced the same procedural orthodoxy. The
death of a party without substitution could result in abatement or invalidation
of proceedings. The law remained firmly anchored in the traditional principle
that no adjudication could be valid in the absence of all necessary parties.
The
Emergence of Finality under the 1977 Partition Law and the Concept of Finality
under Section 48.
The
enactment of the Partition Law No. 21 of 1977 marked a turning point. Section
48 introduced a strong declaration that interlocutory and final decrees are
final and conclusive for all purposes against all persons.
This
provision elevated partition decrees into judgments operating in rem, binding
not only the parties but the world at large.
5.2
Residual Procedural Vulnerability
However,
this finality was not absolute. Section 48(4)(a)(iii) preserved the ability to
challenge decrees on the ground of non-substitution. Thus, while the law recognized
the need for finality, it still permitted procedural defects to undermine it.
The
period between 1977 and 1997 may therefore be described as transitional.
Introduction
of a Comprehensive Mechanism by Section 81 of Act No 21
The
1997 Amendment and the complete statutory transformation.
The
Partition (Amendment) Act No. 17 of 1997 fundamentally altered the law. Section
81 was expanded into a comprehensive framework governing substitution and
representation.
Each
party was required to nominate a legal representative to act in the event of
death. Upon death, the nominee automatically stepped into the proceedings,
eliminating the need for formal substitution.
Automatic Continuity
of Proceedings
This
innovation ensured that proceedings would continue uninterrupted. The death of
a party ceased to have procedural consequences capable of derailing the action.
Section 81(9):
Statutory Validation Despite Non-Substitution
The
most significant feature of the amendment is found in section 81(9). This
provision declares that even where no nomination is made and no substitution
takes place, all proceedings, judgments, decrees, and acts remain valid and
binding on the heirs of the deceased party.
This
represents a complete departure from earlier law. The failure to substitute,
once fatal, is now rendered legally irrelevant.
Section 48 Revisited: Finality
Reinforced and Protected
The
amendment must be read alongside section 48. The repeal of section
48(4)(a)(iii) removed the earlier ground of challenge based on
non-substitution. Section 48(1) continues to declare that decrees are final
notwithstanding any procedural defect.
In
the post-1997 context, non-substitution falls squarely within such defects and
cannot affect the validity of the decree.
Judicial Conflict in the application
of procedural provisions relating to substitution.
In
Gamaralalage Karunawathie v. Godayalage Piyasena[1]
the Supreme Court held that proceeding conducted without substitution was a
nullity. The decision was based on general procedural principles and supported
by Indian authorities. However, the judgment did not consider section 81(9),
which had already altered the legal position.
The Doctrine of Per Incuriam and the
Correction in Jane Nona
In
Jane Nona and Others v. Surabiel and Others[2]
the Court of Appeal corrected this position. It examined sections 48 and 81(9)
and held that non-substitution does not invalidate partition proceedings.
The
Court declared Gamaralalage Karunawathie v. Godayalage Piyasena to be per
incuriam, applying the doctrine recognized in Young v. Bristol Aeroplane Co Ltd
and Morelle Ltd v. Wakeling. A decision rendered in ignorance of a binding
statutory provision lacks authority.
Final Resolution of the Supreme
Court by a Divisional Bench.
The
controversy was conclusively resolved in Bulathsinhala Arachchige Indrani
Mallika v. Siriwardane[3],
decided on 02.12.2022. A five-judge bench of the Supreme Court held that
Karunawathie had been decided per incuriam in the context of partition law.
The
Court affirmed that partition actions are governed by a special statutory
regime and that statutory provisions prevail over general procedural
principles.
Clarification
in Modern Jurisprudence.
In
Nimal Dhammika Jayaweera v. Margaret Lokubadusuriya and Others (2023) , the
Supreme Court clarified the distinction between partition actions and ordinary
civil actions.
In
ordinary civil litigation, the death of a party without substitution results in
abatement. In partition actions, however, the statutory scheme ensures
continuity and validity despite such events. This distinction is now firmly
established.
The Present Legal Position: A
Statutory Regime of Continuity
The
law may now be stated with clarity. In partition actions, the death of a party
does not interrupt proceedings, and the failure to substitute does not
invalidate the decree. The decree remains binding on all persons, including the
heirs of the deceased.
The
law has moved decisively away from procedural technicalities and now prioritizes
finality and certainty of title. This evolution reflects a conscious
legislative policy. Partition actions involve numerous parties and often extend
over long periods. Death during litigation is inevitable. The law therefore
ensures that proceedings continue and that decrees remain stable. The
transformation, thus, represents a shift from procedural perfection to
substantive stability.
15.
Conclusion: Finality as the Governing Principle
It
is therefore prudent (although he is not bound by law) for every District Judge
hearing a partition action to satisfy himself, at the earliest possible stage
of the proceedings, that each party has complied with the requirement of filing
a memorandum nominating one or more persons to act as legal representatives in
the event of death pending the final determination of the action. This
requirement is not a mere administrative formality; it is a vital element of
the statutory scheme, designed to ensure continuity of proceedings while at the
same time safeguarding the interests of all parties concerned.
Footnotes
Gamaralalage
Karunawathie v. Godayalage Piyasena (2011) 1 SLR 171.
Jane
Nona and Others v. Surabiel and Others (2013) 1 SLR 346.
Bulathsinhala
Arachchige Indrani Mallika v. Bulathsinhala Arachchige Siriwardane, SC Appeal
No. 160/2016 (02.12.2022).
Nimal
Dhammika Jayaweera v. Margaret Lokubadusuriya and Others, SC Appeal Nos.
45/2013 and 44/2013 (31.10.2023).
Young
v. Bristol Aeroplane Co Ltd [1944] 2 All ER 293.
Morelle
Ltd v. Wakeling [1955] 2 QB 379.
Mohammed
Kamil Kuthubdeen v. Attorney General (Sri Lanka SC).
Subasinghe
Mudiyanselage Rosalin Bertha v. Maththumagala Kankanamge Juwan Appu (Sri Lanka
SC).
State
of Punjab v. Nathu Ram AIR 1962 SC 89.
Swaran
Singh v. Ramditta AIR 1969 P&H 216.
Kanailal
Manna v. Bhabataran Santra AIR 1970 Cal 99.
Achhar
Singh v. Ananti AIR 1971 P&H 477.
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