Kanagasabai, S.C. V. Velupillai

1952 Present : Rose C.J., Gratiaen J. and L. M. D. de Silva J.

S. C. KANAGASABAI et al., Appellants, and M. VELUPILLAI et al., Respondents

S. C. 534 and 58-D. C. Point Pedro, 3,489 and 3,590

Partition action-Lis pendens-Registration in wrong folio-Conclusive effect of final decree-"As hereinbefore provided "-Jurisdiction of Court-Registration of Documents Ordinance (Cap. 101), s. 12 (1)-Partition Ordinance (Cap. 56), ss. 3,9, 17.

Failure to register duly a lis pendens in a partition action as required by section 12 (1) of the Registration of Documents Ordinance deprives the decree entered in the action of the " conclusive effect " which it would otherwise have under section 9 of the Partition Ordinance by reason of the fact that it is a decree not entered " as hereinbefore provided ".

Plaintiffs in Appeal No. 534 claimed title to the land in dispute by virtue of a final decree entered in a partition action which, however, had been registered in the wrong folio as a lis pendens. Defendant, who was not a party to the partition action, contended that the decree for partition was not " good and conclusive '' against him within the meaning of section 9 of the Partition Ordinance because the action had not been " duly registered " as a lis pendens as required by section 12 (1) of the Registration of Documents Ordinance.

Held, that the partition decree relied on by the plaintiffs did not possess the character of a decree which was " good and conclusive against all persons whomsoever " within the meaning of section 9 of the Partition Ordinance.

Quaere, whether the failure to register the lis pendens in a partition action as required by section 12 (1) of the Registration of Documents Ordinance renders the decree entered in the action void by reason of lack of jurisdiction in the court which entered it.

APPEALS from two judgments of the District Court, Point Pedro. They were referred under the provisions of section 48A of the Courts Ordinance for decision by a Bench of Three Judges.

E. B. Wikramanayake, Q.C., with T. Arulananthan and O. M. de Alms, for the plaintiffs appellants in Appeal No. 534.-Plaintiffs brought this action for declaration of title to the land in dispute. Title to the land was based on a partition decree. Defendant pleaded firstly, that the partition decree was obtained by fraud and collusion, and secondly, that lis pendens was not correctly registered and that the decree was therefore void. Before the enactment of section 12 (1) of the Registration of Documents Ordinance (Chap. 101) lis pendens was not required to be registered but the decree was registered. For a statement of the law before the enactment of section 12 (1) see Jayewardene on Registration of Deeds, p. 172. Under the existing law it is necessary to consider section 12 (1) of the Registration of Documents Ordinance with reference to section 9 of the Partition Ordinance (Chap. 56). If the decree is given " as hereinbefore provided " then it is good and conclusive against the whole world. With regard to the significance of the words " decree given as hereinbefore provided " see Samarakoon v. Jayawardene 1[(1909) 12 N. L. R. 316 at p. 319.] and

Jayawardene v. Weerasekera 1[(1917) 4 C. W. R. 406.]. It is submitted that section 12 (1) is only directory. The object of section 12 (1) is to give notice that a partition action has been instituted in order to protect intending purchasers. If the object is defeated the remedy is given in section 9 of the Partition Ordinance. In the present case the lis pendens was registered in the wrong folio. There is no provision in the Registration Ordinance for dismissing a partition action where the lis pendens has not been properly registered-Seneviratne v. Kanakaratne 2[(1937) 39 N. L. R. 272.]; Tochina v. Daniel 3[(1937) 39 N. L. R. 168.]. Provided the defendant is summoned, there is no case, as far as the Partition Ordinance

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