Nallakaruppen Chettiar Et Al. V. Hepponstall

1950 Present: Nagalingam J. and Pulle J

NALLAKARUPPEN CHETTIAR et al., Appellants, and HEPPON-

STALL, Respondent

S. C. 96 (lnty) -D. C. Colombo, 3,455

Partition action-Death of plaintiff-Termination of plaintiff's interest in the land with his death-Right of a defendant to be made party plaintiff-Abatement- Procedure governing partition action-Civil Procedure Code, ss. 18, 396, 839,

In a partition action, if the plaintiff dies while the action is pending and his interest (e.g., fiduciary interest) in the land sought to be partitioned terminates with his death, one of the defendants cannot be made a party plaintiff for the purpose of continuing the action, when such defendant does not claim any interest under or in succession to the deceased plaintiff. Neither section 18 nor section 396 of the Civil Procedure Code permits such procedure. The proper order to be made in the circumstances would be one of abatement.

The Civil Procedure Code governs procedure to be followed in partition actions and it is not competent to a Court to devise procedure of its own unless such a course becomes necessary and permissible under section 839.

 APPEAL from an order of the District Court, Colombo.

C. Thiagalingam, K.C., with V. Arulambalam, for the 8th and 9th defendants appellants.

'H. V. Perera, K.C., with C. R. Gunaratne, for the 7th defendant respondent.

Cur adv. vult.

 November 15, 1950. NAGALINGAM J.-

This appeal is preferred by the 8th and 9th defendants from an order made by the learned Additional District Judge of Colombo granting the application of the 7th defendant respondent to be made a party plaintiff in order to continue the action in place of the deceased plaintiff.

The plaintiff who instituted the action, it is common ground, had only a fiduciary interest in the land sought to be partitioned and which terminated with his death. The action was instituted on June 29, 1944, the defendants at that stage being the 1st to 6th defendants. On his intervention the 7th defendant-respondent appears to have been made a party defendant on November 21, 1945. Thereafter the present appellants, the 8th and 9th defendants, have also been brought on the record as parties defendant.

The trial of the case commenced on August 2, 1949, and after being partly heard was adjourned for further hearing to November 17, 1949, when it was brought to the notice of the Court that the plaintiff had died in the meantime. The Court then put the case off for December 7, for steps to be taken, on which date the 10th and 11th defendants, the children of the deceased plaintiff, appearing by Proctor, stated that they did not wish to proceed with the case. Thereupon the Court again put off the case for February 1, 1950, for steps to be taken, and on this date the 7th defendant-respondent filed papers to have himself made a party plaintiff in order to proceed with the action. It must be noted that the 7th defendant does not claim any interest under or in succession to the deceased plaintiff. Of the defendants to the action, the present appellants alone took objection to the application of the 7th defendant-respondent, and after investigation the learned Judge made order adding the 7th defendant as a party plaintiff for the purpose of " proceeding with this action in order to a final determination ".

Two sections of the Civil Procedure Code have been referred to by the learned Judge as enabling him to make the order which he did. Section 18 is stated by him to be wide enough to cover such a case as the present one. In the first place, this section is one of a group of sections that deals with questions, stated very broadly, as to who may be parties to an action, and not with questions that may arise on the death of a party to the suit. In the second place section 18 in particular does not deal with the question of substitution in place of a deceased plaintiff bu

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