MATHER v. TAMOTHARAM PILLAI.

MATHER v. TAMOTHARAM PILLAI.

D. C., Jaffna, 8,429.

Partition, suit-Reference to arbitration-Ordinance No. 10 of 1860-Ordinance No. 15 of 1866-Civil Procedure Code, s. 691.

A partition suit is not a mere proceeding inter partes to be settled of consent, or by the opinion of the Court upon such points as they choose to submit to it in the shape of issues. It is a matter in which the Court must satisfy itself that the plaintiff has made out his title, and unless he makes out his title his suit for partition must be dismissed.

In partition proceedings the paramount duty is cast by the Ordinance upon the District Judge himself to ascertain who are the actual owners of the land. As collusion between the parties is always possible, and as they get their title from the decree of the Court, which is made good and conclusive as against the world, no loopholes should be allowed for avoiding the performance of the duty so cast upon the Judge.

In enacting the Ordinance No. 15 of 1866, the Legislature did not confer on a Judge power to refer the matters in dispute in a partition suit to arbitration.

The award of an arbitrator given upon such a reference is wholly bad, and no interlocutory decree can be entered in terms of it.

THIS was an appeal against an interlocutory decree entered in a partition suit in terms of the award of an arbitrator.

The plaintiff, the defendants, the substituted defendants, and the added parties applied to the Court to refer " all matters and

differences between them in the above-named action " to a person agreed to by them. The order of reference appointed the arbitrator named " to determine all the said matters and differences between the parties ", and vested the arbitrator with " all such powers or authorities as are vested in arbitrators under the Code of Civil Procedure ".

In due course the arbitrator heard evidence and gave his award that certain shares of the lands belonged to certain parties, and that the cost of the partition suit should be borne by the parties in proportion to the shares of each.

The tenth, eleventh, and twelfth added parties, and the first and second substituted defendants, objected to an interlocutory decree being entered in terms of the decree.

The District Judge (Mr. W. R. B. Sanders ) entered of record as follows:-" The counsel for the parties who object to the award has not been able to obtain a copy of the judgment of the Supreme Court in which that Court is said to have held that a partition suit could not be referred to arbitration. But in the present case all the parties consented to the reference, and none of the grounds mentioned in section 691 of the Civil Procedure Code have been urged for setting aside their award. Enter interlocutory decree' in terms of the award. Objectors to pay the costs of the objections ".

The interlocutory decree being entered, the objectors appealed.

H. A. Jayawardene, for appellants, cited C. R., Chilaw, 7,128, decided by Mr. Justice Grenier on the 22nd May, 1902, and Peris v. Perera (1 N. L. R. 362). Collusion between plaintiffs and defendants is always possible in partition cases. Bonser, C. J., therefore held that the District Judge should take care that the inquiry should not" be conducted in a perfunctory way. His Lordship cast upon the Court the duty of satisfying itself not only that the plaintiff had made out his title, but also that all the parties interested in the land were made parties in the action. Furthermore, it was the duty of the Court to determine what the respective share of each party was, and, in case all the parties could not be found, to allot severally the shares of the persons who have proved their rights to them, and where an order to sell has been made to retain in its hands the value of the shares of such owners as have not come forward to prove their title to it. In view of these special duties in partition cases, it is not competent to the District Co

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