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FERNANDO et al. v. FERNANDO et al.
NLR20V410
1918 Present: Bertram
C.J. and De Sampayo J.
FERNANDO et al. v. FERNANDO et al.
212-D. C. Negombo, 12,370.
Partition-Bight of a Co-owner and of a Mortgagee not disclosed-Action for
damages by mortgagee-Ordinance No. 10 of 1863, s. 9.
Where a plaintiff obtained a partition decree without disclosing the mortgage
rights of another person (or the rights of the mortgagor), though he was aware
of them-
Held, that the mortgagee was entitled to recover damages from the plaintiff.
THE facts appear from the judgment.
A. St. V. Jayawardene, for the appellants.
Samarawickreme (with him Croos-Dabrera), for respondents.
1 (1852) 2 De G. M. & G 886
2 3 Bust. 539.
November 5, 1918. BERTRAM C.J.-
This is an action under section 9 of the Partition Ordinance, in which the
plaintiffs claim damages as mortgagees, on the ground that the defendants, being
fully aware of the fact that the plaintiffs' mortgagor had an interest in
certain lands which were the subject of a partition action which had been
originated by the defendants, and being also aware that they, the plaintiffs,
had a mortgage of this interest, fraudulently omitted to disclose both the title
of their mortgagor and the mortgage rights of the plaintiffs. It appears that
the claim which the defendants originally made in the partition action was to
half the land in dispute. They justified their claim under a transfer to them of
that share by their predecessor in title. But there is a very strong body of
evidence to show that the land was not held in halves but in thirds, and that
one of the persons who held one-third of the land and possessed it for a very
long time was the plaintiffs' mortgagor, who was a member of the same family as
the defendants and claimed by inheritance.
The learned District Judge has very carefully examined the facts, and has given
a series of findings. He has nowhere expressly declared that the defendants were
fully aware of the title of the plaintiffs' mortgagor, and that they omitted to
disclose it through motives of fraud. But we have got to ask ourselves what is
the reasonable conclusion to draw from the findings which he has made in coming
to a decision ourselves upon this point. Before I address myself to that
question, let me briefly refer to the state of the law on the point.
The law is laid down in the judgment of my Brother de Sampayo J. in the case of
Appuhamy v. Samaranayake.1[1 (1917) 19 N. L. R. 403.] I think it is clear that no action lies under
section 9, except upon proof of the breach of a legal duty. The proviso to
section 9 does not create fresh remedies, but merely keeps intact such remedies
as exist. If a person claims damages under that proviso, he must show that the
person against whom he claims them had been guilty of a breach of a legal duty
towards him. That legal duty may be sought for outside the Ordinance, or it may
be sought for within the four corners of the Ordinance. One of the sections
which may originate such a legal duty is section 2, which makes it incumbent
upon a plaintiff, when instituting a partition action, to " state the names and
residences of all the co-owners and mortgagees and of their respective shares or
interests, so far as the said matters or things, or any of them, shall be known
to him or them." I think the position must be accepted that a plaintiff is not
bound to state the names and residences of persons claiming to be co-owners
whose title he in good faith disputes. As it is put in the case just referred
to: " I do not think that parties to a partition action will be liable in
damages, if they acted bona fide in ignorance of the rights of any third party."
The principle of that decision seems equally to apply
to claims which though known to the petitioning party, are in good faith
repudiated.
Now, let us apply that principle to the findings of fact of the learned District
Judge in this case. He finds as
