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WIJEWARDENE v. SEETALAHAMY
NLR5V190
WIJEWARDENE v. SEETALAHAMY et al.
D, C. Ratnapura, 910.
Partition Ordinance, No. 10 of 1868, s. 17-Meaning of " owner ".
The word " owner " in section 17 of Ordinance No. 10 of 1863 means an owner who is a party to the legal proceedings instituted under the Ordinance. De Silva v. Carlina, 9 S. C. C. 141, questioned.
ON the 29th June. 1899, the plaintiff instituted this action against three defendants for partition, and in his plaint he allotted to himself thirteen-sixteenths of the land, to the first defendant one thirty-second share, to the second defendant one thirty-second share and to the third defendant the remaining two-sixteenth shares. Rome time after the filing of the action, i.e., on the 12th September, 1890, one O. M. Obeyesekere purchased one-eighth share of the land from certain persons whom the libel of
partition had not named as entitled to am share, and on the 6th November, 1899, petitioned for declaration of his right and for partition to him of his share. He was made the fifth added defendant in the case.
At the trial the District Judge disallowed the claim of the fifth added defendant, on the ground that the transfer in his favour was dated later than the institution of the action.
He appealed.
Wendt, appeared for appellant.
Van Langenberg and Schneider, for plaintiff, respondent.
Walter Pereira, for first added defendant, respondent.
Cur. adv. vult.
21st November, 1900. Browne, A.J.-
The District Judge has quoted no precedent for his decision. The current of reported authority then was against his ruling, the decisions of this Court in 1 S. C. C. 24 and 4 ibid. 52 having been, on 9 ibid., p. 141, held to define the operation of section 17 of the Partition Ordinance to be limited to the prevention of partition proceedings from being defeated or embarrassed by alienations or encumbrances made pendente lite; and in that decision itself it was held, " though not without doubt, " that the prohibition of the section was against alienation by '' owners '' who are parties to the proceedings. I do not know whether these authorities were reconsidered in 7,717, D. C, Colombo, " Lux " Rep. 10, when a question was raised whether the prohibition could be given only a limited operation, when the Legislature had declared that the act prohibited should not be lawful; and perhaps I may be permitted to ask whether the act. prohibited, if done after or pending a certain event, could be one whit less unlawful, because parties had previously agreed to do what they did then.
The result of such a ruling as has here been made could be only that the appellant's vendor himself (or the appellant constituted his attorney for that purpose) should come forward in this partition action to prefer his claim. This would entail delay and further cost, and so the enforcement of the section, to a degree stricter than 9 S. C. C. 14 construed it necessary, would work that which the section was intended to obviate. I am not disposed therefore to change the interpretation then given to the section, but I would follow it, and set aside the order and remit the proceedings for fifth added defendant's claim to be investigated. The objection was apparently taken by the Court, and I would not give costs.
Lawrie, J.-
The decision of this Court in the case of De Silva v. Carlina. decided on 13th March, 1891, reported in 9 S. C. C. 141, seems to me to be on all fours and to govern the present case.
I am bound to follow that decision until it be overruled by the Full Court, or until the Legislature re-considers the law as to partitioning land in Ceylon, If my brother Browne and I had been agreed that the decision in De Silva v. Carlina was wrong, we would have ordered this appeal to be listed for argument before the Full Court, but as my brother is satisfied with that decision, I acquiesce, not because I think it a good decision, but it is binding on me and it must be followed.
