Suresh Chandra, J:
This is an appeal from the judgment of the Court of Appeal which affirmed the judgment of the District Court of Kegalle.
The Appellant instituted action in the District Court of Kegalle to partition the land called Apullannage Watta alias Udaha Apullannage Pallehawatte containing in extent one Pela of paddy sowing situated in Rukulagama. The Plaintiff in her plaint which was subsequently amended set out the devolution of title to the said land and stated that the manner in which the shares should be devolved on the parties. The 1st Respondent filed a statement of claim agreeing with the devolution of title set out in the plaint and claimed his share on the basis set out in the plaint. The 2nd Respondent filed a statement of claim and set out the devolution of title as claimed by him.
The parties agreed that the corpus sought to be partitioned was depicted in the Preliminary Plan No.869 which was drawn on a commission issued by Court. The Appellant as well as the 2nd Respondent gave evidence and produced deeds regarding the devolution of title and the pedigree according to their positions. Both of them claimed possession of the land with the buildings standing thereon which was occupied by them.
The pedigree and the devolution of shares as set out by the Appellant differed from the pedigree and the devolution of shares set out by the 2nd Respondent. The learned District Judge accepted the pedigree as set out by the 2nd Respondent and amended the devolution of shares set out by the 2nd Respondent and answered the issues in favour of the 2nd Respondent.
The Appellant being aggrieved by the judgment of the learned District Judge appealed to the Court of Appeal and the Court of Appeal affirmed the said judgment of the District Court. The Appellant made an application for Special Leave and this court granted leave on the following questions as set out in paragraph 18 (ii), (iii), (iv), (v) and (vi) of the petition ,which are as follows:-
(ii) Has the trial Judge made a finding on the correct pedigree before embarking upon allocating of shares to the parties ?
(iii) Is it the duty of a Trial Judge to investigate title upon the deeds produced, in entering a Judgment in a Partition action based on the said pedigree?
(iv)If so, has the Trial Judge in entering the judgment in case bearing No,23984/P failed to investigate title of the parties having settled upon the pedigree and the title deeds produced before court ?
(v) Has the Court of Appeal failed to advert it's mind to the aforesaid questions ?
(vi)Thereby, has the Court of Appeal erred in law and has caused a miscarriage of justice by dismissing the Appeal of the Petitioner, by Judgment dated 04.09.2008?
It is a well established principle relating to partition actions, that there is a duty cast on the trial Judge to investigate title before arriving at a conclusion. S.25(1) of the Partition Act states that
"On the date fixed for the trial of a partition action or on any other date to which the trial may be postponed or adjourned, the court shall examine the title of each party and shall hear and receive evidence in support thereof and shall try and determine all questions of law and. fact arising in that action in regard to the right, share, or interest of each party to, of, or in the land to which the action relates, and shall consider and decide which of the orders mentioned in section 26 should be made."
It has been held in several cases that S.25 of the Partition Act imposes on Court the obligation to examine carefully the title of each party to the action. Vide Cooray v Wijesuriya 62 NLR 158
There is no doubt that the Court would be guided by the plaint, the evidence led and the documents that are filed in such endeavour. In carrying out such a task it is necessary for the Trial Judge to examine the deeds carefully in deciding on the pedigree and the devolution of shares. In the present case an examination of the proceedings before the District Court and the judgment of the Learned District Judge shows that there has not been a proper investigation into title as required by S.25 of the Partition Act. Even in the appeal before the Court of Appeal this has not been properly adverted to. Although in such circumstances the matter could have been sent back for a retrial by the District Court, since the original action had been instituted in April 1984 it would be inappropriate to do so, as it would result in delaying this matter still further to resolve the disputes between the parties. This Court would take it upon itself the task of investigating the title of the parties by considering the pleadings, evidence and the documents produced at the trial which would bring about a final conclusion to this matter and which would meet the ends of justice.
In the present case the Appellant amended the plaint and had sought to present a better pedigree than was presented in the original plaint. The 2nd Respondent in his statement of claim had set out what appears on the face of it a comprehensive pedigree. The Appellant in her evidence apart from being quite positive of asserting her possession of the land and claiming the house she was living in and some of the plantations, was not certain when probed about her predecessors in title and what she stated specially when cross examined appears to be more hearsay than acceptable evidence. Her evidence apparently not being very convincing, the learned District Judge did not accept her version.
On the other hand the learned District Judge accepted the version of the 2nd Respondent regarding the pedigree and the devolution of title although an examination of his evidence shows that he too was not quite certain of certain positions and when in doubt has stated that he cannot read what was set out in the deeds that he was relying on.
The Appellant had put in question before the District Court, the claim of the 2nd Respondent by challenging three deeds which he relied on to assert his claim to shares, stating that the name of the land set out in those deeds and the boundaries were different and therefore did not relate to the land sought to be partitioned. The learned Trial Judge nor the Court of Appeal had considered this position which was strongly urged before us when the appeal was argued by Counsel for the Appellant and also set out in the written submissions. The three deeds in question are 2D4, 2D5 and 2D6 which will be dealt with in this judgment.
It would appear that the learned District Judge has not examined the deeds that were produced at the trial closely in accepting the version of the 2nd Respondent. Therefore it is necessary to examine the deeds that were produced at the trial and to make a determination as to the devolution of title and consequently the shares.
The deeds relied upon by the Plaintiff were:
P2 - Deed No.4396 dated 28.11.1949 whereby Laminduwa, Ukku Amma , Bandiya and Meniki had transferred an undivided 1/4th share of the land called Pallehawatte to Punchi Menika.
P1 - Deed No.20331 dated 07.05.1951 whereby Punchi Menika had transferred the said undivided 1/4th share to Pina.
P3 - Deed No.6309 dated 13.10.1982 whereby the heirs of Pina (except a son by the name of Karunatileke ,1st Respondent ), namely his wife Laisa, Gunawardena, Baby, Pemawathie transferred an undivided 3/4th share out of the 1/4th share of Pina to Battiram Pedige Gunawardena.
P4 - Deed No. 7188 dated 28.7.1983 Whereby the said Gunawardena transferred the said 3/4th share to the Appellant Pemawathie.
The 2nd Defendant relied upon the following deeds
2D1 - Deed No.1398 dated 21.6.1946 whereby Suba had transferred an undivided 1/4th share of Pallehawatte of extent 1 Pela to Punchi Menika.
2D2 - Deed No.4384 dated 22.11.1949 whereby M.G.Punchi Menika transferred the said undivided one fourth share to Horatali.
2D3 - Deed No.6832 dated 13.9.1952 where the said Horatali had transferred the said share to Mallandu.
2D4 - Deed No. 30328 dated 15.12.1973 whereby the said Mallandu and one Kirisaduwa had gifted an undivided 11/12 shares to the 2nd Respondent. This deed has two parcels of land described in the Schedule. One parcel has the identical description as in the Deeds described in the above Deeds namely, P1 to P4 and D1 to D3. The other parcel refers to a land called Udaha Apullanage Pallehawatta and the boundaries are different from the boundaries of the other parcel of land.
This deed refers to the fact that the said Kirisaduwa had derived rights from Ukku, Ukkuwa, Tikirimalee and Sirimala on Deed No.12240 dated 03.07.1942 which was marked and produced as 2D5 the schedule of which describes the land as an undivided 1/3rd share of Udaha Appunalage Pallehawatta.
This deed also refers to the fact that Mallandu had derived her rights from Deed No.6832 (2D3) dated 13.09.1952 and Deed No.6833 dated 13.09.1952.
By the said Deed No.6833 which was marked and produced as 2D6 Sedara had transferred an undivided 1/3rd share of the land called Udaha Apullanage Watta to Mallandu, which Sedara had derived from Deed No.645 dated 26.01.1942 which was produced and marked as 2D7.
It is significant to note that Deed 12240(2D5) describes the land as Udaha Apullanage Pallehawatte, and Deeds 6833 (2D6), 645(2D7) describes the land Udaha Apullanage Watta and all three deeds refers to a 1/3rd share. Such a 1/3rd share is not consistent with the shares set out in the Deeds P1 to P4 which deal with a 1/4th share.
It is manifest that the parcel of land described as Udaha Appulanage Pallehawatta and Udaha Appulange Watta the boundaries of which are different, is different from the land described as Pallehawatte which is the land described in Deeds P1 to P4 and 2D1 to 2D4. The description of the land referred to as Pallehawatte also tallies with the preliminary plan No.869 made for the purposes of this case.
Therefore the second parcel of land referred to in Deed 2D4 and the land referred to in 2D5, 2D6 and 2D7 should be excluded from determining the devolution of title and shares in the present case.
It is clear from deed P1 to P4 that they refer to only 1/4th of the land called Pallehawatte the ancestry of which relates to Laminudwa, Ukku Amma, Bandiya and Meniki out of which an undivided 3/16 shares devolve on the Plaintiff and an undivided 1/16th on the 1st Respondent.
The undivided 1/4th share referred to in Deed 2D1 of the land called Pallehawatte and the ancestry of that relates to Suba who features in the pedigree set out by both parties. This 1/4th share devolved on Mallandu (2D3) through Punchi Menika (Deed 2D1) and Horatali (Deed 2D2) and Mallandu by Deed 2D4 gifted 11/12 (out of 1/4th) shares to the 2nd Respondent by Deed 2D4. Since Mallandu had died intestate her balance share of the undivided 1/4th after the gifting of 11/12 shares devolved on the 2nd Respondent, thus the 2nd Respondent became entitiled to an undivided 1/4th share out of the whole land which share was coming through the owner of the original 1/4th share, Suba.
From the foregoing, and from the evidence of both the Appellant and the 2nd Respondent it is clear that an undivided half share of the land called Pallehawatte derived as 1/4th from Laminduwa, Ukku Amma, Banidya and Meniki, and another 1/4th from Suba would be accounted for and the question remains as to the balance half of the said land. From the pedigree set out by both parties, in their pleadings and in their evidence the above position is clear regarding half of the property, and the balance half share was with Kirisaduwa.
The said Kirisaduwa by deed 2D4 gifted an undivided 11/12 of his share to the 2nd Respondent and the balance share on his death devolved on Pina . On Pina's death the said balance share had devolved on his heirs namely Karunatileke (1st Resondent) Gunewardena, Baby and Pemawathie subject to the life interest of his wife Laisa. The said Laisa, Gunewardena, Baby and Pemawathie conveyed their interests by Deed P3 to Gunewardena who by Deed P4 conveyed same to Pemawathie, the Appellant. The resulting position in relation to the half share coming down from Kirisaduwa would be that the Appellant would be entitled to 3/4th of 1/2 of 13/24 i.e. 39/192 shares, the 1st Respondent to 1 /4th of 1/2 of 13/24, i.e. 13/192, and 1/2 of 11 /24 to the 2nd Respondent.
Therefore the final devolution of shares to the Appellant, 1st Respondent and 2nd Respondent would be as follows:
Appellant - 3/16 and 39/192 i.e. 75/192; 1st Respondent 1/16 and 13/192, i.e. 25/192, 2nd Respondent 1/4th and 11/48, i.e. 92/192 shares.
The Appellant would be entitled to the building marked as No.2 and the well marked as No.3 in Plan No.869. The 2nd Respondent would be entitled to the building marked as No.1 in Plan No.869.
The Appellant's entitlement to the land should be allotted with a road frontage to the Gam Sabha Road as is practically possible.
The questions on which leave was granted are answered as follows :
(ii) The trial Judge has not made a finding on the correct pedigree.
(iii) It is the duty of a trial Judge to investigate title upon the deeds produced, in entering a judgment in a partition action based on the pedigree that is acceptable to Court.
(iv)In entering judgment in the present case No.23984/P, the trial Judge has failed to investigate title of the parties upon the acceptable pedigree and the title deeds produced in Court.
(v) The Court of Appeal has failed to address any of these issues in forming its decision to affirm the judgment of the District Court.
(vi) The Court of Appeal has erred in law by dismissing the appeal of the Appellant.
The appeal is allowed, and the judgment of the District Court is varied so that the parties will be entitled to the shares as set out in this judgment. I make no order for costs and the parties will bear their own costs.