1959 Present : Pulle, J., and T. S. Fernando, J.

S. J. MAS and others, Appellants, and S. R. DIAS, Respondent.

S.C. 176-D.C. Colombo, 6,998/P

    Partition action-Conveyance by a co-owner of a divided lot or korotuwa-Right of transferee to maintain a partition action in respect of the whole land-Co-owners- Amicable partition-All the co-owners must be parties to it.

Where a co-owner conveys his interest by reference to a particular portion or, korotuwa of which he has been in possession, the deed can be considered as effective in law to convey his undivided interest in the whole land. In such a case the transferee can maintain a partition action in respect of the whole land.

An amicable partition to be recognized in law must be a division, which in law terminates the co-ownership of the property. A plan made at the instance of one or more co-owners purporting to cause a division of the common land or which the other co-owners apparently had no notice does not form the basis of divided possession. Exclusive possession on the footing of such a plan does not terminate the co-ownership of the land. Githohamy v. Karanagoda (1954) 56- N. L. R. 250, followed.

APPEAL from a judgment of the District Court, Colombo.

Sir Lalita Rajapakse, Q.C., with E. S. Amerasinghe and D. G. W. Wickramasekera, for the 1st to 3rd defendants-appellants.

H. W. Jayewardene, Q.C., with S. D. Jayasundere, for the plaintiff respondent.

Cur. adv. vult.

March 25, 1969. T. S. FERNANDO, J. -

The plaintiff instituted this action for a partition of a land described as the divided southern portion of Kahatagahawatte and depicted in plan No. 8439 of 25th March 1954. The original owner of this divided portion was admittedly one Elias Dias, the paternal grand-father of the plaintiff, and the plaintiff claimed to be entitled to 142/336 share of the land and of an old house standing thereon on the strength of a transfer (P 8 of 14th October 1951) made to hin1 by his father Carolis. Carolis who is a son of the original owner had parted with his undivided interests in the soil and in the house in 1918 and 1920 respectively, but had three years later, by transfer P 5 of 1923, purchased from his sister Carlina her interests in the said land. The remaining shares were allotted by the plaintiff in his plaint to the several defendants in this case who were all descendants of the original owner.

The claim for partition was contested only by the 1st defendant James, a brother of Carolis referred to above and a son of the original owner, and by the two sons of James, viz., the 2nd and 3rd defendants, who alleged that their father had gifted to them in divided blocks the land sought to be partitioned. The 1st defendant and his two sons claimed that they were entitled to the land by right of possession adverse to and independent of all others.

The main question in dispute at the trial was whether Carolis, the father and predecessor in title of the plaintiff had by a deed P 9 of 1929, executed by him in favour of his brother James, the 1st defendant, divested himself of all his rights to the land sought to be partitioned. It was apparent that, if this question was answered against Carolis, the plaintiff, being devoid of title, could not maintain any action for partition. Carolis who gave evidence on behalf of the plaintiff took up the position that this deed P 9 related to a transfer, not of interests in the land in question which is the divided southern portion of Kahatagahawatte, but of interests in the land to the north, viz., the northern portion of the same Kahatagahawatte. After a consideration of the evidence, both oral and documentary, the learned trial judge has held against the contesting defendants and ordered interlocutory decree for partition to be entered. The appeal is from this order.

The appeal has been pressed before us both on facts and law. In regard to the mail' dispute on the facts, wh