Siwanadian Chetty V. Talawasingham

1927  Present: Schneider, Garvin, and Dalton JJ.

SIWANADIAN CHETTY v. TALAWASINGHAM. 

110-D. C. Chilaw, 7,176.

Partition-Notice by Commissioner-Thirty days-Notice to public-Imperative requirement-Ordinance No. 10 of 1863, ss. 5 and 9.

In a partition action the notice given by the Commissioner of the proposed partition, in terms of the proviso to section 5 of the Ordinance must be a notice to the public.

The requirement that thirty days' notice of the proposed partition should be given to the public is imperative, and failure to comply these with deprives a partition decree of its conclusive character.

CASE referred to a bench of three Judges on the question whether in a partition action the notice given by a Commissioner of the proposed partition, in terms of the proviso to section 5 of the Partition Ordinance, must be a notice to the public and whether the failure to give thirty days' notice to the public would deprive a partition decree of its conclusive character.

E. W. Jayewardene, K. C. (with him Bartholomeusz, Peri Sundaram, and E. V. B. Samarawickreme), for appellant.-There are two very recent decisions of this Court which hold that the notice contemplated by the section is a notice to the public, and not to the parties only (Dewattee Umma v. Selappu 1 and Paulu v. Rengishamy 2).

This view is not a recent one. As far back as 1896 Bonser C. J. expressed the opinion that the object of the notice was that '' any one so advised may intervene." Later decisions which have adopted the same view, as would appear from certain dicta appearing in the course of the judgments, are to be found in the case reported in Catherinahamy v. Babahamy 3 and Sanchi Appu v. Marthelis 4

1 (1927) 8 C. L. Rec. 134.        3 (1908) 11 N. L. R. 20.

2 (1926) 27 N. L. R. 260.          4 (1914) 17 N. L .R. 297.

A proceeding under the Partition Ordinance is in many respects like a proceeding in rem; and on reference to Hukum Chand it would appear that in such proceedings a notice to the public is necessary (vide Hukum Chand, at p. 494).

Hayley, K .C. (with him H. V. Perera, Rajaratnam, and Ponnambalam), for respondent.- The provisions of section 5 are for carrying out the decree as between the parties before the Court. Else it is rather extraordinary that the notice to the public should be left to a layman, like a surveyor, and should be done at the end of the case. It is clear that if the notice contemplated was a notice to the public, it would have been directed to be given as soon as the plaint had been accepted.

With regard to the argument adduced that the judgment is a judgment in rem, the submission is that it is not so. A judgment and decree in a partition case is merely a statutory judgment, having in effect the same consequences as a judgment in rem. So that if the Legislature has made no provision, as it is submitted it has made none, then the procedure must take its usual course.

Why a notice to the parties is necessary is that very often there is no contest as to title, and some, parties never even turn up in Court. This notice gives them an opportunity of coming to the survey and getting their blocks according to their convenience.

[Garvin J.- The words " but calculated to give the greatest publicity thereto " clearly indicate an intention of a notice to the public]

That view seems to have been taken in Jayawardene v. Weerasekere 1 and for the first time these words were unduly stressed. After all, in most partition cases what was contemplated was the little village, and the co-owners mostly constituted the populace.

[Schneider J.- Where else is it possible to find a notice to the public directed to be given?]

The Ordinance provides for none. If this is to be considered a notice to the public, of what is it to be a notice? Is it to be a notice that a decree has been entered, &c.? Surely if such a notice had been intended at any stag

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