Kumarihamy V. Weeragama Et Al.,

1942 Present: Hearne, Keuneman and de Kretser JJ.

KUMARIHAMY v. WEERAGAMA et al.

20-D. C. (Inty.) Kandy, 310.

Partition action-Compromise affecting rights of parties inter se-Binding on patties to agreement.

By Hearne and de Kretser JJ. (Keuneman J. dissenting).

An agreement, which is entered into in a partition action, affecting only the rights of parties inter se, and which is expressly made subject to the Court being satisfied that all parties entitled to interests in the land are before it and are solely entitled to it, is binding on the parties and is not obnoxious to the Partition Ordinance. .

CASE referred to a Bench of three Judges; the facts appear from the judgment of de Kretser J.

H. V. Perera, K.C. (with him Cyril E. S. Perera) , for the first defendant, appellant.-The question for decision is whether in a partition action the parties can, before the stage of investigation into title by Court is reached, enter into a compromise which is to take effect after the Court has ascertained the co-owners and their respective shares. The solution to the problem) may be obtained when one considers the nature of a partition action.

There is no positive rule of law imposing a duty on Court to make an investigation into title and to prevent collusion' between parties. The duty is only derived from the rule that decrees for partition are conclusive against the world. The duty is to protect the interests of parties who are not before Court, i.e., to see whether the parties appearing are entitled to the whole property as against the rest of the world. In the present case there is a very clear appreciation, of the duty of Court. A partition action is firstly an action to partition a land owned in common, and, secondly, it decides certain disputes between the parties who are before Court. Parties are entitled to settle their own special differences. Such a settlement is contrary neither to the Partition Ordinance nor to any other provision of law. The cases of Nagamuttu v. Ponnampalam et al.[(1903) 4 Tamb. 29.] and Sanchi Appu v. Marthelis et al [ (1914) 17 N. L. R. 297]are helpful.

There is nothing in the Partition Ordinance to prevent the settlement of a dispute between the parties who are before Court. Section 4 speaks of " examination" of title, and not of determination of title. All that is necessary is that the rights of third parties are not prejudiced. Section 408 of the Civil Procedure Code is available in partition suits. The agreement in the present case is binding on the parties, and it is not open to any of them to resile from it.

N. E. Weerasooria, K.C. (with him L. A. Rajapakse), for the plaintiff, respondent.-The Court must in all cases of partition carefully investigate all titles, and must refuse to make title on admissions-Fernando et al. Mohamadu Saibo et al. 3[ (1899) 3 N. L. R. 321] ; Mather v. Thamotheram Pillai[(1903) 6 N. L. R. 246] ; Umma Sheefa v. Colombo Municipal Council[ (1934) 36 N. L. R. 38.] ; Golagoda v. Mohideen[(1937) 40 N. L. R. 92 at 94.]. The jurisdiction of the Court to investigate title cannot be ousted by compromise of parties.

[DE KRETSER J. referred to Assana Marikar v. punchimahatmaya.[ (1920) 8 C. W. R. 152.]] That case is referred to in Jayawardene on Partition at p. 310. The practical effect of an arrangement like the one in the' present case would be' to destroy the principles laid down by the Supreme Court in various cases.

A compromise entered into before any evidence is led is on a different. footing from a compromise made after the evidence has been led. If the. former is permitted, Court may settle questions of title too summarily. Further, parties may act in collusion, and rights of third parties may be prejudicially affected. See Jayawardene on Partition, pp. 75, 245-255; Pens et al. v. Perera et al.[(1896) 1 N. L. R. 362 at 367.]; Abdul Hamidu v. Perera[(1925) 26 N. L. R.433.]; G

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