THE LAW OF PARTITION IN CEYLON [Contributed by W. R. BISScHOP, ESQ., LL.D.]

 

THE LAW OF PARTITION IN CEYLON

[Contributed by W. R. BISScHOP, ESQ., LL.D.]

Co-ownership. —“Nemo invicem in communione maner …” This maxim, formed in the Civil Law, laid the basis of a mode of acquisition of property.

If the co-owners of property could not come to a mutual understanding as to its division, partition could be enforced by any one of them against all the others, and the adjudication of the judge was considered as forming for each person the proprietary title to such part as had been allotted to him. The judgment formed a similar proprietary title in the case of a division of an inheritance and in an action for the regulation of the boundaries of neighbouring lands.

The mode of procedure was clearly set out, and by the practice of centuries the rules as to these actions, which must have been of common occurrence in a rural community, had been well established. The actions were duplices—that is to say, the parties might be called upon to act both as plaintiffs and defendants; they were mixtae as being both in rem and in personam; and they were bonae fidei.

In the Low Countries, various systems of community of property and of the common use of property were known, of which there are several surviving in the Netherlands at the present day. Grotius mentions in his Introduction (Bk. III, chap. xxviii, par. 5) some of the customs of Rhineland regarding the common use of property; and these are more fully set out in Van Leeuwen’s Roman-Dutch Law (Bk. IV, chap. xxxix, par. 2). In the Ordinances of the various towns and communities, local regulations can be found in abundance regarding the use of lands held in common.

With all these varieties, certain rights were inherent to every co-owner of property. Each owner had a right to possess his undivided share and to claim it from third parties. Each owner had the right to alienate his undivided share and to encumber it, and each owner could compel his fellow owners to co-operate in dividing the common property (actio communi dividundo).

The procedure in an action for a partition of property held in common was similar in all the provinces. The courts, who were accustomed to follow the Roman law on all points where the common law was silent or the variety of customs made a guide necessary, adapted the clear and precise rules of the Civil Law to the actio communi dividundo in the Dutch provinces.

Thus, custom was grafted on custom with a precision and determination which left no obscurities in the procedure followed by generation after generation during centuries of legal and historical development. The Dutch still adhere to this part of their common law, and the present rules of the Civil Code of the Netherlands regarding partition of property held in common are mainly the same as those laid down in the days of the Republic.

Notwithstanding the view of Mr. Justice Thomson that the Roman-Dutch law as administered in Ceylon approaches more nearly to the Civil Law than it did when administered in Holland, and notwithstanding the Ceylon Proclamation of 1799, which declared that the Roman-Dutch law should be the common law of Ceylon, this particular matured Civil Law has curiously enough received very little recognition in the Ceylon Law Courts and has been superseded by two ill-drawn Ordinances which Mr. Jayewardene, in his Law of Partition in Ceylon, calls “pieces of patchwork,” pointing out their ambiguity and inefficiency.

Did the legislators and creators of these Ordinances know Chapter X of Voet’s Commentaries on the Pandects, either in its Latin form or in its English translation, or his De familiae erciscundae liber singularis? If they did, would it not have been simpler—if codification were considered necessary—to have followed the recognised common law of Ceylon and codified it according to the exposition given by Voet, rather than legislate on lines of their own and oblige the courts to search elsewhere for solutions to the difficulties which the Ordinances themselves created?

Mr. Jayewardene, in his Introduction, observes that Voet’s Commentaries were, at the time when the first Ordinance was passed, practically a sealed book to the majority of the judiciary and the profession. The procedure adopted in the Ordinances was derived from a decision of the Supreme Court of Ceylon in Abesekera v. Silva, in which the procedure followed in a former case was treated as a precedent to be adhered to until a specific form of process should be laid down by rule or order of the Supreme Court—a striking example of resting satisfied with inferior material in ignorance of superior authority already available.

The partition of estates left by deceased persons has been regulated in Ceylon according to English law, and thus the corresponding action for the partition of property held in common from other sources than inheritance—the so-called actio familiae erciscundae—fell into disuse, if indeed it had ever been used in the Ceylon courts. On the other hand, the rules of Roman-Dutch law regarding succession remained in existence and are still observed.

The principle of succession by inheritance according to Roman-Dutch law is the presumption of the continuance of the deceased’s personality as owner of the estate through his successor without interruption. The introduction of the English Act 3 & 4 William IV, c. 42, destroyed this presumption and substituted the maxim that, at the death of a person, his goods are to be treated as bona vacantia, the seisin of which is vested in the court and administered through an executor or administrator, who then distributes it to those entitled under Roman-Dutch law. Together with the former presumption disappears the hereditatis petitio, although the doctrines of adiation and rejection remain.

One might have expected that, with the introduction of English concepts of estate administration, such administration would have superseded partition suits altogether, since an administrator ought not to rest until the estate is fully administered and distributed among the heirs. Yet this expectation proves incorrect. In practice, persons become entitled to property in infinitesimal shares, and these undivided interests continue to be held in common, necessitating frequent resort to partition actions.

Thus, in Ceylon, the actio communi dividundo assumes paramount importance. Partition becomes not merely incidental but central to the administration of property rights.