1958 Present : Basnayake, C.J., and Sinnetamby, J.

P.M. COORAY et al., Appellants, and M. A. P.
WIJESURIYA, Respondent

S. C. 26-D. C. Kalutara, 29505/L

    Partition action-Duty of Court to examine title of each party-Proof of pedigree-Statements in deeds-Evidential value thereof-Partition Act, No. 16 of 1951,. ss. 25, 26 (f), 48-Evidence Ordinance, S8. 32 (5), 32 (6), 50 (2).

Section 25 of the Partition Act imposes on the Court the obligation to' examine carefully the title of each party to the action.

Before a Court can accept as correct a share which is stated in a deed to, belong to the vendor there must be clear and unequivocal proof of how the vendor became entitled to that share. Apart from proof by the production of birth, death and marriage certificates, the relevant provisions of the Evidence Ordinance in regard to proof of a pedigree are to be found in section' 32 (5), 32 (6) and 50 (2).

APPEAL from a judgment of the District Court, Kalutara.

H. W. Jayewardene, Q.C., with cecil de S. Wijeratne, for 2nd to 5th Defendants-Appellants.

A. L. Jayasuriya, with S. D. Jayasundera, for Plaintiff-Respondent.

Cur. adv. vult.

October 30, 1958. SINNETAMBY, J.

This is a partition case to which the provisions of the Partition Act No. 16 of 1951 apply. The plaintiff sought in this case to partition that portion of the land called Kahalagodayawatte depicted in plan PI as lot A. The 2nd to 5th defendants, who alone contested the plaintiff's claim and will hereinafter be referred to as defendants, pleaded that. lot B, which plaintiff "claimed as his separate property, was also part of this land. In the course of the trial the plaintiff abandoned his claim to the exclusive ownership of lot B and agreed that it too formed part of the land sought to be partitioned.

The plaintiff, in his pleading and throughout the trial, based his claim on the footing that Warnage Bastian Fonseka and Warnage Paulu Fonseka were originally entitled to this land in the proportion of ! and t respectively. Subsequently, long after the case for the plaintiff and defendants had been closed and even after the address of learned Counsel for the defendants, plaintiff's Counsel in the course of his address took up the position that these two persons were entitled to the land in equal shares. The defendants' case throughout was that W. Bastian Fonseka was the sole owner of the entire land and that the plaintiff was not entitled to any share whatsoever. The learned trial Judge allowed a partition and allotted shares in accordance with the plaintiff's amended .' pedigree and the appeal is against these findings by the 2nd to the 5th defendants.

According to the plaintiff, Bastian Fonseka died leaving as his heirs six: children whom he named as :

1. Franciscu.

2. Pedru.

3. Davith.

4. A daughter who was married to M. Jusey Silva.

5. Philippu.

6. Manuel.

The defendants on the other hand stated that Bastian Fonseka had seven children, viz.,

1. A daughter married to P. Juwanis Fernando.

2.2. A daughter married to D. Franciscu Peris.

3 Selestina.

4 Nonababa.

5. Manuel.

6. Philippu.

7. Pedru.

.Both agreed that Pedru, Philippu and Manuel were children of Bastian Fonseka. The plaintiff claims no interests through Philippu and Manuel but claims 1/8th share through Pedru upon deeds P 5 and P 6. P 5 is a transfer in 1916 by one Warnage Juan Fonseka to Warnage Niko Fonseka of a 1/8th share of a land called Kahalagodayawatte giving the eastern and western boundaries as Old High- Road and Old Road, and the northern' and southern boundaries as portions of the same land' without designating who the owners of these portions are. Deed P 6 recites title through P 5 and conveys the same share to Lewis Perera in 1917. In order to succeed in his claim upon these two deeds the plaintiff must establish two facts: first, that Juwanis was a son of Pedru, and secondly, that the land described in t