Partition1.. 2. 3. -Partition suit-Ordinance No. 10 of 1863, s. 17—Alienation of land during pendency of partition suit-Validity of deed. A partition suit was commenced on 13th November, 1900, and a preliminary decree entered on 28th August, 1901, declaring that A and B were entitled to one-third of the land, and they do pay to the plaintiff Rs. 89 as cost. Thereafter, on the 17th September, 1901, A and B passed a deed of conveyance, as regards their one-third share of the land to C. The plaintiff caused the Fiscal to seize the one-third share and levy out of it his costs. claimed the said share as his. C In an action brought by the plaintiff against A, B, and C to have the deed declared null and void,— Held, per LAYARD, C.J., that the judgment of the Full Bench in Annamalai Pillai v. Perera (6 N. L. R. 108), which was binding upon him in the decision of the present case, is questionable, as it did not appear to be fully argued whether there was privity of contract between a purchaser at a sale in execution and the judgment-debtor whose property was sold, nor was the question raised whether a purchaser in execution was or was not in the position of a person who took a conveyance from the executiondebtor, the owner. SILVA v. GIMARAH, Court of Requests, Galle, 2,466 -Partition suit by trustee of Buddhist vihare-Ordinance The Ordinance No. 10 of 1863 was not intended to be limited to persons who have an absolute ownership in the property, but includes also one who has an undivided share vested in him as trustee. The power which section 30 of the Buddhist Temporalities Ordinance gives to trustees is wide enough to include a right to bring a partition suit, when he finds it inexpedient to hold together with co-owners the land vested in him. DANIEL v. SARANELIS APPU, District Court, Galle, 5,749 -Partition Ordinance, No. 10 of 1863, s. 19-Piecemeal determination of issues as to title between several co-owners--No appeal till general preliminary decree entered. Where several separate contests as to title arise in an action for partition, and are disposed of at separate hearings. - Held, that though each order of the Court determining the title between parties is appealable under section 19 of the Partition Ordinance, 1863, yet the progress of the suit should not be interrupted by appeals in which the greater number of the parties to the suit have no interest. The Supreme Court is in the habit of refusing to entertain appeals against orders, which are not conclusive between all the parties, but will await the entry of the general preliminary decree. The decision of the lower Court in each piecemeal investigation or title should not take the form of a decree. FERDINANDIS v. DON DAVITH, District Court, Matara, 1,616 -Partition Suit-Application of one of the parties to re-open preliminary decree-Laches of applicant-Security for costs incurred by other parties to action-Discretion of Court to make order as to costs. In a partition suit, a party applying to re-open the preliminary decree on the ground of there being a mistake as to the share assigned to him, may be called upon to give security for the costs incurred by the other parties, if he has delayed to ascertain his proper share and to apprise the Court in time of the mistake. ISMAIL v. SILVA, District Court, Galle, 5,532 PAGE 135 163 216. 245 5. 6. -Partition Ordinance, 1863-Preliminary decree-Plan of the land sought to be partitioned-Plan to be filed with the plaint. The preliminary decree in a partition suit should determine the limits and extent of the land sought to be partitioned or sold, with the same care and precision as it adjudicates on the individual interest of the parties to that suit. As such a decree has been held to be one in rem binding on all persons whomsoever, it is of the utmost importance that the extent and limits of the common land should be adjudged in the preliminary decree as well as the shares of the claiming co-owners. In an action for partition the plaintiff should append to his plaint a plan or sketch of the land sought to be partitioned, and should lead such proof of the metes and bounds of the land as will enable the Court to adjudicate on that part of the case. The person to whom the Commission issues should know precisely what the land is which he has to partition according to the instructions of his Commission. Section 8 of the Ordinance No. 10 of 1863 provides indeed that the Commissioner shall file with his return a survey of the property in which a survey shall have been directed by the Court. But this can only refer to cases where the sketch or plan, which the plaintiffs should file with their plaint, is of too rough a character to rest a judgment upon. It is useless to call in aid a survey after an adjudication on the shares of the respective parties. SEDOHAMI v. MAHOMADU ALI, District Court. Matara, 997 .. -Partition suit against minors-Guardian ad litem-Certificate of curatorship-Civil Procedure Code, ss. 5, 6, and 582Position of guardian ad litem in the suit. In a partition suit a motion to take the plaint off the file, because the shares alleged to belong to the plaintiff do not belong to him, is irregular. It is frivolous on the part of one who had allowed himself to be appointed a guardian ad litem to represent certain minors in a partition suit, and given a proxy to his proctor to appear and defend the action, to object to the action on the ground that the minors have not been properly represented. The proceeding in which he was made a guardian ad litem and added as a defendant is a proceeding which comes within the definition of the word " action" in section 6 of the Civil Procedure Code. It is not necessary that such a guardian ad litem should obtain a certificate of curatorship under section 582 of the Code. The person appointed as a guardian to represent a minor in an RAMAN CHETTY v. ABDUL RASAC, District Court, Galle, 6,681 Partnership Ordinance No. 7 of 1840, s. 21 (4)-Agreement for establishing partnership Custom among Nattukotte Chetties-Use of initialsVilasam-Evidence Ordinance, s. 98. Where a plaint alleged that the plaintiff and defendants were partners in trade, including the purchase and sale of lands; that the partners traded under the name and style of “ Su. Pa. A. Vee;" and that the fifth defendant, Sekappa Chetty, having bought two estates on behalf of the partnership, sold them fraudulently to the fourth defendant; and where the plaintiffs prayed for a dissolution of the partnership, a cancellation of the deed of PAGE 247 345 242 sale which conveyed the estates to the fourth defendant, an account of the rents and profits of the two estates, and a partition or sale of the estates, Held that, as the agreement for establishing the partnership was not in writing as required by Ordinance No. 7 of 1840, section 21, he could not pray for a dissolution of it; that under section 98 of the Evidence Ordinance he could lead evidence to show that the deed which conveyed the lands to "Su. Pa. A. Vee Sekappa Chetty meant, according to the custom of the community of traders to which the parties to the case belonged, a conveyance to Sekappa Chetty for and on behalf of the firm of Su. Pa. A. Vee," and that the relation of agent and principal between the fifth defendant and the other parties to the case being thus established, the fifth defendant may be ordered to account to his principals for the value of the lands. MIDDLETON, J.-My view of the latter part of sub-section 4 of section 21 of Ordinance No. 7 of 1840 is that it was intended that the Courts should not enforce any alleged obligations to become or act as a partner, or any agreement in respect of an alleged partnership between persons assuming to be partners without an agreement for partnership in writing; but that, if persons had acted as partners without an agreement in writing, they should not be allowed to take advantage of their own wrong in escaping accounting for money received on behalf of the professed partnership, on the plea that there was no legal partnership in the terms of the Ordinance. It may be said that the trial of this issue must inevitably involve the giving of parol evidence in support of an alleged partnership; but, even if it does so, I do not think it would be going further than the latter part of sub-section 4 of section 21 of Ordinance No. 7 of 1840 would permit. KANAPPA CHETTY v. WALATHAPPA CHETTY, District Court, PAGE 339 Pauper Leave to sue in formâ pauperis--Subject-matter of the action--Civil When an applicant seeks to sue in formâ pauperis for a share of land, and a proctor has certified, under section 447 of the Civil Procedure Code, that he has a good cause of action, it is, nevertheless, open to the respondent, when the question of pauperism comes before the Court under that section, to prove that the applicant's title to part of the share claimed has not been contested. but is purposely misrepresented as contested and if the Court finds that the applicant's right to a part, worth Rs. 50 or more, of his clairn has not been contested or disturbed, it has power to refuse to allow the applicant to sue as a pauper. The applicant's statement of what forms the subject-matter of the action is not binding on the Court. HINNIAPPU v. HENDRIS, District Court, Galle, 7,354 Penal Code Section 211 Section 394 Section 434 Section 453 326 328 222, 327 287 52 Police vidane Police vidane-Village headman-Peace officer--Criminal Procedure A police vidane who searches a man's house for stolen property, believing tha the has the power to do so, cannot be convicted of criminal trespass with intent to commit theft. A police vidane appointed by the Government Agent" by virtue of the powers vested by the Governor " is a peace officer as defined by section 3 of the Criminal Procedure Code. COSTA v. SINHO, Police Court, Colombo, 81,752 Possessory action— Possessory action by part-owner-Civil Procedure Code, s. 12—Ordinance No. 22 of 1871, s. 2. The owner of an undivided share of land can maintain a possessory action in respect of such share, provided he joins the other co-owners as parties either plaintiff or defendant. D. C., Chilaw, 261 (1 S. Č. R. 329), distinguished. SILVA v. SINNO APPU, Court of Requests, Galle, 1,611 Prescription 1. Entry into possession as agent--Outlay of money on repairs of houses occupied and enjoyment of rents-Exclusive possession Want of change of quasi fiduciary possession to adverse possession-Ordinance No. 22 of 1871, s. 3. 2. 3. Where M, in consideration of certain services and outlays of money, was permitted by the owners of a house to enjoy its rents and recoup himself, and he repaired the house, paid taxes due thereon, leased it, and did not account for the rents or any surplus for about twenty years. Held, by the Judicial Committee of the Privy Council, that in the absence of any evidence to show that he got rid of his character of agent, he was not entitled to the benefit of section 3 of Ordinance No. 22 of 1871. Anthonisz v. Cannon (3 C. L. R. 65) overruled. NAGUDA MARIKAR v. MOHAMMADU, District Court, Colombo, -Action by mortgage against administrator of deceased mortgagor-Payment of part interest after his death by widow of deceased who had married in community-Effect of such payment-Right of heirs of deceased husband to resist action by plea of prescription-Ordinance No. 22 of 1871, s. 13. In an action brought by a mortgagee against the administrator of the estate of the mortgagor who had been married in community, and whose widow had paid some portion of the interest due, Held that, as the joint matrimonial estate of the mortgagor and his spouse was originally liable on the obligation incurred by the husband, such liability could not be affected by the death of the husband, and that the heirs of the deceased husband could not resist the mortgagor's action on the plea that the payment of interest by his widow after his death did not keep his share of the obligation alive. WIJEYEWARDENE v. APONSo, District Court, Colombo, 13,418 -Prescriptive title-Right of a plaintiff out of possession at time of action to the benefit of such title-Ordinance No. 8 of 1834, 8. 2, and Ordinance No. 22 of 1871, s. 3—“ Previous to the bringing of the action "-Right of Full Bench of Supreme Court to overrule previous judgment of Full Bench-Authority of longestablished decisions on property law. The prescriptive possession created by the Ordinance No. 22 of 1871, section 3, is not defeated by reason of the action rei vindicatio not being brought at the very moment of time that his cause of action arose. The Collective Court decision in Ayanker Nagar v. Sinnatty (Ram. (1860) 75) followed. PAGE 287 5 91 198 4. 5. LAYARD, C.J.-The Supreme Court sitting collectively has no power to overrule the previous judgment of a Collective Court. If there be a conflict of collective judgments of the Supreme Court, it would become necessary to determine which of them should be followed. PERERA V. PERERA, Court of Requests, Colombo, 18,422 -Action against executor de son tort-Appointment of administrator-Administrator made party defendant-Administrator's plea of prescription. Where an action was brought in time against an executor de son tort of a deceased debtor and, upon the appointment of an administrator, obtained leave to add him as a party defendant, and where the administrator pleaded prescription, Held, that as he was made a party in the same representative character as that filled by the original defendants, his plea of prescription was not good. SAMINATHAN CHETTY v. SILVA, District Court, Galle, 6,400 Action for damages for breach of an agreement-Ordinance No. 22 of 1871, ss. 7, 10. An action for damages for non-fulfilment of an agreement in SITTRAVELU v. SINNETHAMBY, Court of Requests, Batticaloa, See ADJOINING HOUSE OWNERS LAND .. Probate See LAST WILL Proctor PAGE 173 279 379 239 133 43 360 See COUNSEL 42 Professional opinion Advice of veterinary surgeon-Exercise of reasonable professional skill A professional adviser does not guarantee the soundness of his If his honesty and good faith are admitted, a properly qualified veterinary surgeon would not be liable for the consequence of an opinion given after careful diagnosis. Gross ignorance or crass negligence alone would justify an action for damages against him. PERERA v. CHINNIAH, Court of Requests, Colombo, 22,779 Promissory note Promissory note payable on demand-Action by endorsee against maker -Agreement between maker and payee as to suspending payment in the event of a contingency-Knowledge of such agreement on the part of endorsee-Evidence Ordinance, s. 92-Conditional delivery. Section 92 of the Evidence Ordinance, which deals with the exclusion of evidence of oral agreements, allows by proviso 3 that the existence of any separate oral agreement constituting a 257 |