1922 Present : De Sampayo and Schneider JJ.

DULLEWE et al. v. DULLEWE et al.

 30-D. C. Kandy, 28,349.

Partition Ordinance, 1863, s. 9-Action for damages against parties to a partition action for depriving plaintiff of hi* share by not dis-closing tame to Court-Act of omission.

A purchaser from one of the heirs of X instituted a partition action on the footing that only the children of the brothers of X were the heirs  of X, and that the sisters of X were not heirs. After preliminary decree the children of the brothers came to a settlement with the children of the sisters and gave them in the testamentary case a smaller portion than they would have been entitled to had the sisters been intestate heirs. On the report of the Commissioner in the partition case being received, the plaintiff issued notice to the defendants (children of the brothers) to show cause against the scheme of partition being confirmed, and as they did not appear to. show cause, final decree was entered. The children of the sisters thereafter brought this action for damages against some of the children of the brothers under section 9 of the Partition Ordinance, 1868.

Held, that they were not entitled to damages.

The act of omission contemplated in section 9 implies some element of willfulness and intention to produce a prejudicial result; the omission must be of an act which one is bound to do.

THE facts are set out in the judgment.

Hayley, for defendants, appellants.

M. W. H. de Silva (with him H. V. Perera), for plaintiffs, respondents.

July 6, 1922. DE SAMPAYO J.-

The plaintiffs brought this action for damages in pursuance of the provisions of section 9 of the Partition Ordinance on the ground that in D. C. Kandy, 21,664, which had been brought for the partition of two lands, the defendants caused the plaintiffs to be deprived of their share of the lands. The circumstances of the case are somewhat peculiar, and on one or two points require serious consideration, Abraham Dullewe Adigar died in 1904 issueless, and left him surviving two sisters, Tikirikumarihamy and Lokukumarihamy, and a brother Punchi Banda, and the children of a predeceased brother, Meddurna Banda. The plaintiffs are the children of the two sisters,' Tikirikumarihamy and Lokukumarihamy, who are now

dead. The first, second, and third defendants are children of Medduma Banda, and the fourth defendant is a purchaser of a share from Medduma Banda, junior, who is .another child of Medduma Banda, brother of the Adigar. At the trial the case against the fourth defendant was withdrawn, as it was bound to fail, because the fourth defendant purchased long after ?he conclusion of the partition action (D. C. Kandy, 21,664),

The Adigar left a large estate, and among other lands he was the owner of two lands called Walawwawatta and Gorukgahawela. In the year 1910 in execution against the children of Punchi Banda, who had in the meantime died, half of half share, i.e., one-fourth share, of the two lands, was sold, and purchased by one Don Manuel Appuhamy. The case No. 21,664 above referred to, which was an Action for the partition of the said two lands, was brought on July 19, 1912, by Don Manuel Appuhamy, claiming for himself a one-fourth share, and assigning to the children of Medduma Banda, namely, the first, second, and third defendants to the present action, half share of the land, and to the children of Punchi Banda the remaining one-fourth share. The case took its usual course, and on June 24, 1918, a preliminary decree was,, entered by the Court declaring the parties entitled to the property in the above proportion, and ordering a partition. A commission was issued to effect the partition, and the Commissioner having submitted a scheme of partition, the Court on March 2, 1015, confirmed the same and entered final decree, allotting divided portions to the various parties.

The standpoint of the two brothers of