Mohamedaly Adamjee V. Hadad Sadeen

[IN THE PRIVY COUNCIL]

1956 Present Earl Jowitt, Lord Oaksey, Lord Cohen, Lord Keith of
Avonholm and Mr. L. M. D. de Silva

MOHAMEDALY ADAMJEE and others, Appellants, and HADAD
SADEEN arid others, Respondents

PRIVY COUNCIL APPEAL No. 24 or 1955

S. C. 72-D. C. Colombo, 5,951

Partition action-Decree for sale-Fraudulent collusion between the parties-Effect on conclusive nature of decree-Investigation of title by Court-Effect of defective investigation-Partition Ordinance, No. 10 of 1863 (Cap. 56), ss. 2, 4, 8, 9.

Prescription-Immovable property----Claim against fideicommissarii _Burden of proof-Evidence Ordinance, s. JOG-Prescription Ordinance, ss. 3, 13.

(1) A decree entered under section 5 or section 9 of Partition Ordinance No. 10 of 1863 is conclusive against all persons whomsoever, and a person owning an interest in the land partitioned whose title even by fraudulent collusion between the parties had been concealed from the court in the partition proceedings is not entitled on that ground to have the decree set aside, his only remedy being an action for damages (even though the property is still in the sole possession of the parties whose fraud is set up.)

(ii) Although a partition decree entered without any investigation of title does not have the conclusive effect provided by section 9 of the Partition Ordinance, a decree entered after a defective or inadequate investigation of title is conclusive, as long as it has not been set aside on an appeal in the same action. Once it appears that the court did hold all investigation into title, although the investigation was not sufficiently exhaustive to prevent the fraud which was perpetrated by the parties iii regard to the title of a person who had not been made a party to the action, any defect in the method of investigation would not vitiate the decree. The person so defrauded is not entitled to seek by separate action to set aside the decree or in a separate action to challenge its conclusive effect. The fact that lack of proper investigation of title may be sufficient for all appeal court acting in the same case to set aside a decree does not detract from the conclusive effect of section 9 of the Partition Ordinance when the decree is being considered in a separate case.

Obiter: On an appeal in a partition action if it appears to the court of appeal that the investigation of title has boon defective it should set aside the decree and make an order for proper investigation. When investigating title the following matters should be attended to by the court in the generality of cases

"The Trial Judge should insist upon the production of the relevant extracts from the registers kept under the Land Registration Ordinance (Cap. 101). They may reveal registered instruments suggesting the possible existence of

title in persons other than the parties before the court. The names of all such persons should be ascertained by due investigation and they should be given notice of the proceedings. Whether they appear in court or not, the effect of such instruments upon the title set up by the parties before the court should be examined. The Trial Judge should also investigate in sufficient detail the question of possession. He should have before him sworn testimony specifying by name the persons actually in possession and satisfy himself that they are some or all of the parties before the court or that they possession under some or all of such parties. He should in case of doubt the parties in possession to be summoned for the purposes of his invest. He should also ask for the production of the originals or duplicates of re for rates and reconcile the material furnished by the receipts with the evidence given . . . . If it appears to the Supreme Court when hearing an in a partition case, that investigation of title has been inadequate it should even though no party before it has raised the point,

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