ARIYASENA AND ANOTHER VS. ALEN

ARIYASENA AND ANOTHER VS. ALEN

COURT OF APPEAL
ABDUS SALAM, J (P/CA)
CA 1104/96
DC KALUTARA 4259/P
JULY 24, 2014

Partition Law - Section 25, Section 26 - Failure of the trial Judge to indicate the undivided interest of each party in the interlocutory decree - is it fatal?

The trial Judge having decided that the parties should be allotted undivided shares failed to give exactly the shares each party will be entitled to in the judgment. The trial Judge without specifying the undivided rights of the parties had stated that the plaintiff should tender a schedule of shares and if the schedule so tendered is consistent with the judgment it should be accepted as part and parcel of his judgment.

In appeal it was contended that the judgment is totally violative of the provisions of the Partition law.

Held:

[1] The failure of the District Judge to indicate the undivided interest of each party in the interlocutory decree is a fatal irregularity.

[2] 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 title section 25.

Per Abdus Salam, J

"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.

Case referred to:-

(1) Memanis vs. Eide 59 CLW at 46

Asoka Fernando with A. R. R. Siriwardane for 1st, 4th, 16th and 78th defendant appellants.

Champeka Ladduwahetty for respondent.

Cur.adv.vult.

06th August 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 be 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.

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 at this stage to refer to the decision in Memanis Vs. Eide(1) at 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 judgment the learned district judge says; "plaintiff's proctor will file a schedule of shares which when filed will form part and parcel of this judgment" 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

Click Here to Read the rest of this document