Victor Perera V. Jinadasa

1962   Present : T. S. Fernando, J., and Abeyesundere, J.

W. A. VICTOR PERERA, Appellant, and K. DON JINADASA and 9 others, Respondents

S. C. 588-D. C. Colombo, 8576/L

    Partition action-Interlocutory decree-Extent of its finality-Effect of failure to register lis pendens-Partition Act (Cap. 69), s. 48 (3).

In partition suit No. 7059 R, who was added as a party, did not take any action herself in respect of the suit and did not participate at the trial. After interlocutory decree was entered she attempted to intervene in the suit in order to obtain either a dismissal of the suit or an exclusion of Lots 1 and 2 in the corpus. Her attempt proved unsuccessful. Thereafter she transferred her rights in Lots 1 and 2 to V. P. Relying upon this deed of transfer, V. P. instituted the present action No. 8576 claiming a declaration of title to Lots 1 and 2, citing as defendants all the persons who had been allotted shares in the interlocutory decree which dealt with Lots 1, 2 and 3 as one corpus. He claimed that, inasmuch as the partition action had not been duly registered as a lis pendens, his right to a declaration of his title was unaffected by the interlocutory decree.

Held, that under section 48 (3) of the Partition Act the trial Judge was obliged to address his mind to the question of the due registration of the partition action as a lis pendens.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perzra, Q. C., with Neville Wijeratne, for the plaintiff-appellant.

No appearance for any of the defendants-respondents.

Cur. adv. vult.

June 1, 1962. T. S. FERNANDO, J.-

This appeal raises the question of the lack of finality of an interlocutory decree entered in a partition action instituted after the passing of the Partition Act of 1951, section 48 (1) of that Act notwithstanding, where such action has not been duly registered as a lis pendens affecting the land to which the action relates. The question arises in the circumstances set out below.

The plaintiffs in partition action No. 7059/PN of the District Court of Colombo sought a partition of a land referred to as Gorakagahawatte and depicted in plan No. 626 (of 1st August 1954 prepared by V. A. L. Ranasinghe, licensed surveyor) as three allotments marked thereon as Lots 1, 2 and 3. At thes urvey, one Mrs. E. Ranasinghe claimed title

to Lots 1 and 2. She was thereafter added as the 17th defendant in the case, but would appear not to have taken any action herself in respect of the partition suit nor even to have participated at the trial. Interlocutory decree was entered on 21st December 1955 declaring, inter alia, the 8th and 9th defendants in that case entitled to an undivided 1 /24 share each of the entire land comprising Lots 1, 2 and 3. The 8th defendant was further declared entitled to certain buildings and a well standing on Lot 1. The 8th and 9th defendants in this partition action, it is not disputed, had long prior to the institution of the action itself parted with their interests to one de Silva, the predecessor-in-title of Mrs. Ranasinghe. No appeal was preferred against the interlocutory decree, but Mrs. Ranasinghe attempted on 21st April 1956 to intervene in the partition action in order to obtain either a dismissal of the action or an exclusion of Lots 1 and 2 from the corpus dealt with therein. This attempt proved unsuccessful, as did an appeal to the Supreme Court from the order of the District Court refusing intervention. The order of the Supreme Court dismissing Mrs. Ranasinghe's appeal was made on 19th May 1958, and Mrs. Ranasinghe thereafter, on the 1st June 1958, by deed of transfer No. 360, parted with her rights in Lots 1 and 2 to the appellant before us. Relying upon this deed of transfer, the appellant instituted the present suit No. 8576/L claiming a declaration of title to Lots 1 and 2 in plan No. 626 referred to above, citing as defendants to his suit

Click Here to Read the rest of this document