Present : Fisher C.J., Drieberg J., and Jayewardene A., J

SUWENERIS v. MOHAMED.

22-C.R. Galle, 6,203.

    Partition-Action for damages-Act or omission-Breach of legal duty- Negligence Ordinance No. 10 of 1863, s. 9.

[Per FISHER C.J. and DRIEBERG J . (JAYEWARDENE A.J., dissentiente).]

An action for damages under the proviso to section 9 of the Partition Ordinance must be based upon a wilful act or omission arising from a breach of legal duty on the part of the defendant.

CASE referred by Jayewardene A.J. to a Bench of three Judges. The facts are stated in the reference as follows :-

The plaintiffs bring this action to recover a sum of Rs. 300 from the defendant, alleging that they were the owners of a 5/12 share of a tiled house and of the entirety of a thatched house used as a kitchen standing on a land called Pelawatta, but that the entirety of these two houses were allotted to the defendant by the final decree in partition case, D. C. Galle, No. 20,908.

One Gunahinge Pingo by deed No. 20,116, dated May 23, 1908,. gifted 5/6 share of the tiled house to her son Sadiris and her grand- daughter Anohamy.

Anohamy died some time ago leaving as her heirs, her husband Suwaneris, 1st plaintiff, and three children, the 2nd, 3rd, and 4th plaintiffs who are minors.

By deed No. 197 of 1916, Sadiris sold his share to his wife Saino, and by mortgage bond No. 2,943 dated September 13, 1920, Sadiris and Saino mortgaged their shares to one William Singho.

A partition action (D. C. Galle, No. 20,908) was instituted by one Sabiathu Natchia in respect of this land, Pelawatta-the present plaintiffs were altogether omitted from this action. Preliminary decree was entered on March 11, 1925, and these two houses numbered 7 and 8 on the plan were allotted to Sadiris, who was the 18th defendant. Anohamy had built the kitchen, and the plaintiffs are thus entitled to 5/12 of the main houses and the entirety of the other house.

William Singho put his mortgage bond in suit, issued writ, and caused the Fiscal to seize the houses No. 7 and 8 in the preliminary plan filed in D. C. Galle, No. 20,908. One Sirineris purchased the property sold in execution, but, was unable to pay the purchase amount, even after an extension of time to pay the amount due. The property was sold a second time and purchased by the present defendant, who obtained Fiscal's transfer No. 18,604 dated April 9,1926 (Dl). The defendant then intervened in the partition action, and was added as the 24th defendant. The preliminary decree was amended on May 17, 1926, and the houses in question were allotted to this defendant, and final decree entered accordingly. The defendant has thus by his act deprived the plaintiffs of their shares in the two houses.

The plaintiffs were unaware of the pendency of partition proceedings. The 2nd, 3rd, and 4th plaintiffs are minors of the ages of 15, 12, and 9 years, respectively. The 1st plaintiff says that he and his wife Anohamy lived on the land but that he went to Anuradhapura and remained there for about six years. His wife came in search of him and died at Anuradhapura. There is no reason to disbelieve the 1st plaintiff. He says that he learnt of the sale of the houses only after the partition case.

The learned Judge has dismissed plaintiffs action holding that the defendant was an innocent purchaser, and that it was owing to Sadiris' act that the plaintiffs were deprived of their interests and that plaintiff could recover damages from Sadiris. It has not been proved that the defendant had any knowledge of the rights of the plaintiffs.

Ameresekere, for plaintiffs, appellant.

Tisseverasinghe, for defendant, respondent.

August 28, 1928. FISHER C.J.- 1928.

In this case the plaintiffs sued the defendant for damages alleging

(paragraph 5 of the plaint) that " In partition case No. 20,908 Mohamed of the District Court of Galle, the defendant above named has fraudul