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PERIS ET AL. v. PERERA ET AL.
NLR1V362
PERIS et al. v.
PERERA et al.
D. C, Colombo, 4,981 /C.
Partition-Ordinance No. 10 of 1863, ss. 4, 6, 9-Interlocutory judgment in action
for partition-Final decree, effect of-Duty of Court in partition suits-Proof of
title of co-owners--Adding parties-Proceeding where all co-owners cannot be
ascertained.
The effect of section 9 of Ordinance No. 10 of 1863 is to give persons taking
title under the decree in an action for partition under that Ordinance a title
good against the true owner, but the decree referred to in that section is not
the interlocutory decree of partition under section 4, but the final judgment
under section 6 awarding shares in severalty, and entered after receipt of the
return of the commission for partition.
The Court should not regard a partition suit as one to be decided merely on
issues raised by and between the parties, and it ought not to make a decree,
unless it is perfectly satisfied that the persons in whose favour the decree is
asked for are entitled to the property sought to be partitioned.
After the Court is satisfied that the plaintiff has made out his title to the
share claimed by him, it should direct inquiries to be made whether all the
parties interested in the land are parties to the action, or have been served
with notice, and, on being satisfied on these points, order a partition or sale.
If all the parties cannot be found, the Court may allot severally the shares of
the persons who have proved their rights to them, and may
sell the remainder of
the land, retaining the balance of the purchase money, after payment thereout of
a proportionate share of the costs of the action, until the owners come forward
and prove their title to it.
Dictum of Phear, C. J., in Assena Marikar v. Usubu Lebbe, 1 S. C. C. 10,
disapproved.
Per BONSER, C.J. (1) The District Judge should take care that the inquiry in a
partition suit is not a perfunctory one. It is only after he is reasonably
satisfied that all the owners who can be found are parties to the action, using,
if necessary for the purpose, the power given him by section 18 of the Civil
Procedure Code, that he should make his decree declaring that the parties are
entitled to certain shares, and directing a partition or sale, as the case may
be.
(2) An interlocutory decree for partition under section 4 of the Ordinance,
unless proceeded with, is useless for any purpose. It could not even support a
plea of res judicata. Where such an interlocutory decree
