w

1. i
Contents.
ROMAN DUTCH LAW OF PARTITION iii
ABOLITION OF THE ROMAN-DUTCH LAW OF PARTION AND INTRODUCTION OF
STATUTORY PROVISIONS. iii
THE NATURE, GOALS BENEFITS AND SCOPE OF A PARTITION ACTION. iv
LEGAL REPRESENTATION- SANCTITY ATTACHED v
NEED TO EXPEDITE THE DISPOSAL OF ARTITION CASES. vi
POSSESSION AS A REQUIREMENT TO INTITUTE A PARTITION ACTION. vii
IMPRACTICABILITY OF MAINTAINING COMMON POSSESSION OF THE CORPUS ix
PROPER COURT WHERE A SUIT FOR PARTITION OF CO-OWNED LANDED
PROPERTY HAS TO BE FILED. x
PARTITION SUIT and CAUSE OF ACTION. x
SUBJECT MATTER OR THE CORPUS IN A PARTITION SUIT xii
Can a land outside the corpus be declared in a partition action as a right of way to the
corpus? xiv
Trust property xix
PLAINT IN PARTITION ACTION- REQUISITES xx
Stamp duty xxi
SURVEYORS and COMMISSIONERS OF COURT. xxi
DUTIES OF THE REGISTERED ATTORNEY AT LAW IN PARTITION CASES TO
ELIMINATE INORDINATE DELAY IN THE DISPOSAL OF PARTITION SUITS. xxii
Necessary parties xxiii
ADDITION OF PARTIES xxv
CAN A PARTITION SUIT BE INSTITUTED IN RESPECT OF A PORTION OF A LARGER
LAND. xxix
Executors and administrators xxx
Legal representatives xxx
Registration of lis pendens xxxiii
Rejection of the plaint xxxvi
Dismissal of the plaint xxxvii
Return of Lis pendens after registration xxxvii
DECLARATION BY THE PLAINTIFF TO BE MADE UNDER SECTION 12 xxxviii

2. ii
Issue and service of summons and publication xl
Preliminary survey xliii
List of Surveyors – Section 73 (1) xlviii
Disclosed parties xlviii
Procedure after service of summons xlix
ADDITION OF PARTIES lii
LIST OF DOCUMENTS AND WITNESSES lvii
TRIAL lx
INJUNCTIONS lxii
SETTLEMENT lxv
PRESCRIPTION AMONG CO-OWNERS lxviii
Burden of proof lxx
SALE, LEASE OR MORTGAGE PENDENTE-LITE IS VOID lxxii
LEASE OR MORTGAGE OF UNDIVIDED SHARES lxxix
COMPENSATION AND OWELTY lxxx
PARTITION OF A LAND BELONGING TO A PARTNERSHIP lxxxi
FINAL DECREE OF A PARTITION ACTION lxxxi
FINALITY OF INTERLOCUTORY AND FINAL DECREES OF PARTITION ACTIONS lxxxiii
NON-PROSECUTION OF A PARTITION ACTION xcii
ID OBTAINED BY MEANS FRAUD xcv
A PARTITION DECREE CANNOT BIND THE STATE xcv
APPLICATION UNDER SECTION 48(4) OF THE PARTITION LAW xcvi
Representatives c
Actions for damages c
Appeals cii
Application for revision and or restitutio in integrum cii
PROOF DEEDS IN PARTITION ACTIONS cv
PROOF OF ORIGINAL OWNERSHIP AND INVESTIGATION OF TITLE cv
EXCEPTIONS AND EXEMPTIONS cvii

3. iii
ROMAN DUTCH LAW OF PARTITION
The three types of actions available to divide properties held in common were
(1) Actio communi dividundo (2) Actio familiae erciscundae and (3) Actio finium
regundorum. They were applied to divide properties held in common, to divide
common inherited properties and to define common boundaries respectively.
According to “Justinian”, if the land can easily be divided among co-owners,
their respective shares should be allocated so. If one of them receives too larger
share, the Judge ought to order him to pay a sum of money as compensation to
the other (Book TV, Tit. XVII).
On the other hand, If the property is one that cannot be advantageously divided
among the co-owners, the whole must be adjudged to one and the Judge must
fix an amount of compensation to be paid to the others. The Roman law in
addition conferred due recognition to amicable partition of landed property.
Amicable partition of lands generally take place, when the co-owners enter into
agreements to terminate the common ownership by allotting divided shares in
lieu of their undivided rights held in common. In a partition suit the property is
transferred by the verdict of the Judge which is a recognized form of ownership
termed judicial adjudicatio. The judicial adjudication transfers the co-
ownership of one litigant to the other. As “Justinian” says there is no need for
deed of transfer (Book IV Tit. XIII. Section 7).
ROMAN DUTCH LAW OF PARTITION
The principles of partition in the Roman-Dutch law had been explained by Voet
as follows…
“The action for the division of common property is a mixed, two sided and a
bona fide action. It is available to those who hold common property in
undivided shares. “Commentary on the Pandects” (BookX Tit. Ill)
ABOLITION OF THE ROMAN-DUTCH LAW OF PARTION AND
INTRODUCTION OF STATUTORY PROVISIONS.
The first ever Statute enacted for division of jointly owned landed properties
was Ordinance No. 21 of 1844. Even after the introduction of this Statute, yet
in Duff Vs. Crosbie (2 Lorenz 19) the Supreme Court held that a partition
action can be instituted by a co-owner even under the common law.

4. iv
Six years after that the Common Law of Partition went into disuse when
Ordinance No. 10 of 1863 was passed providing for the partition and/or sale of
land held in common. Ordinance No. 10 of 1863 was amended by Ordinance
No. 10 of 1897 and No. 37 of 1916.
Subsequently, Act No. 16 of 1951 was introduced by repealing the earlier
Ordinance. Act No. 16 of 1951 was applied to partition cases for nearly 22
years.
Thereafter Administration of Justice Law No. 44 of 1973 replaced Act No. 16 of
1951 and introduced a separate chapter, from Sections 632 – 663 as being
applicable for the partition of lands .
Partition Law as embodied in The Administration of Justice Law had the
shortest period of life span in the Statue book, as it was finally repealed by
Partition Law 21 of 1977 which certified on 26 November 1977. The Partition
Law No. 21 of 1977 was thereafter amended from time to time by Act No‟s 5 of
1981, 6 of 1987, 32 of 1987 and 17 of 1997. By the said amendments no
substantial change were made to the Law of Partition save and except certain
procedural modifications. Partition Law No. 21 of 1977 has survived in the
Statute book for well over three and a half decades.
The preamble to the Partition Law which is now in force reads that it is a law to
provide for the partition and sale of land held in common and for matters
connected therewith or incidental thereto.
Accordingly, partition action in Sri Lanka is now governed by Partition Law No
21 of 1977 as amended by Act No‟s 5 of 1981, 6 of 1987, 32 of 1987 and 17 of
1997.
THE NATURE, GOALS BENEFITS AND SCOPE OF A PARTITION ACTION.
An examination of the Partition Law presently in force and the previous
statutes on the same subject, amply reveal that they had been drafted almost
in line with the Partition Acts prevailed at that time in England. However it has
to be borne in mind that the principles of law of partition contained in our
Statutes dealing with the termination of co-ownership of landed properties are
in actual fact derived from the Roman-Dutch Law, the foundation of which is
The Roman Law.

5. v
A partition action is designed and intended towards the cessation of co-
ownership of immovable property. The scope of the trial in such an action is the
examination of the title to any right, share and interest in the land and
improvements claimed by the parties. Such an examination could extend to the
investigation of encumbrances that pertain to such right, share or interest, as
the final decree wipes out the encumbrances as are not specified therein. The
requirement of persons who have any interest on the basis of encumbrances
that pertain to title should be disclosed as necessary parties in terms of section
5 is based on the finality of the final decree which wipes out such
encumbrances.
LEGAL REPRESENTATION- SANCTITY ATTACHED
RANJITH PERERA AND ANOTHER Vs DHARMADASA AND OTHERS -
COURT OF APPEAL- SALAM, J.- CA 1754/2004- DC HORANA 5387/P
JANUARY 8,2008 Partition Law 21 of 1977 - Section 48 (4), Joint statement
of claim - Trial date - Registered Attorney absent - One claimant taking part
in the proceedings - Sections 24, 27(2) Civil Procedure Code -Applicability -
Procedural Law - Its importance - Investigation of title? - Permission to
conduct his own case - Not recorded? - Fatal?
The 3rd and 4th defendants-petitioners who had jointly nominated a
registered Attorney-at-law and filed a joint 'statement of claim sought to
revise the judgment and the interlocutory decree, on the basis that, they
were unrepresented at the trial, and that the trial Judge should not have
put the 4th defendant-petitioner into the witness box without legal
assistance and permitted him to cross examine when he had a registered
attorney on record. The petitioners also allege that, there was no
investigation of title, and that, there was no settlement.
Held:
(1) As long as a party to a case has an Attorney-at-law on record, it is the
Attorney-at-law on record alone, who must take steps and also whom the
Court permits to take steps. When the 4th defendant-petitioner attended
Court without being represented by his Attorney-at-law or a Counsel
(Section 27(3)) the trial Judge should have considered him as a party having
failed to appear at the trial as the Court has chosen to do so in the case of

6. vi
the 3rd defendant-petitioner. Further there is no indication pointing to the
4th defendant-petitioner having sought permission of Court to cross-
examine the plaintiff or to present his case in person either.
NEED TO EXPEDITE THE DISPOSAL OF ARTITION CASES.
Bonser CJ with his usual foresight stated more than a century and two and
half decades ago that from a socio-legal perspective, the undivided possession
of landed property is productive of very injurious consequences to inhabitants
of the colony .
In our country, the rule of succession on the death of a citizen is not
primogeniture. The Law of intestate succession is applied to the properties on
the death of a citizen, according to the personal Law applicable to the deceased.
Generally, persons who inherit the estate of a deceased are the surviving
spouse, children, parents, collaterals and certain other relatives, depending on
the type of legal heirs left behind by the deceased. The Law of succession
known to our system of Law includes the Common Law of Succession and
Muslim Law of intestate Succession. Both under the Common Law and Muslim
personal Law, quite frequently persons become entitled to properties in
infinitesimal fractions. Hence, the law of partition of landed property
necessarily occupies an important position in the law of the land.
As was pointed by Bonser CJ in PERERA et al. v. GUNETILLEKE et al. 4 NLR
181 “ In a country like this any attempt of parties to use force in the
maintenance of their rights should be promptly discouraged as slight brawls
readily blossom into riots with grievous hurt and murder as the fruits. It is
therefore all the more necessary that Courts should be strict in
discountenancing all attempts to use force in the assertion of such civil rights
as are in dispute in the present case”.
In any country, amity among the people, absence of friction and tension among
them are very important, being a precondition to internal peace, which is
essential for progress and development of the country. Speedy disposal of
partition cases with the assistance of Lawyers who have gained remarkable
competence in the particular field of Law is necessary, to maintain harmony
among them.
Whenever disputes arise on the question relating to the continuation of co-
ownership, particularly among members of one family, as it invariably happens

7. vii
in relation to co-owned properties, it becomes highly injurious to the people
and disastrous to the economy of the country. It is therefore, very important
that we acquaint ourselves with the Law of Partition and its proper application
with a view to ensure the expeditious disposal of partition cases.
POSSESSION AS A REQUIREMENT TO INTITUTE A PARTITION ACTION.
Unlike in the past the impracticableness of common possession of co-
ownership plays no significant role towards the institution of partition suits.
A person who has ownership and possession or a right to possession is now
considered as being entitled to file and maintain a partition action.
Act No. 10 of 1863 Act No. 16 of 1951, Administration of Justice (Amendment)
Law, No. 25 of 1975 and 21 of 1977 refer to ownership in common and not to
possession. In the early years the erroneous view that prevailed was that a
partition action can only be maintained by the plaintiff who is in possession
and whose title is not disputed.
However in the case of SINCHI APPU VS. WIJEGUNASEKERA1 a bench of
three Judges reviewed this position and held that a person claiming to be the
owner of an undivided share of a land, and to be therefore entitled to
possession of it, is competent to maintain an action to have that land
partitioned, although neither he nor his predecessor has had possession and
although the defendants wholly deny his title.
In the Privy Council case of The Attorney-General vs. Herath Similar
observations were made by L. M. D. de Silva J, as to the attributes of
ownership.
“DOMINION” or Ownership is protected by law in which a man stands to a
thing which he may : (a) possess, (b) use and enjoy, (c) alienate. The right to
possess implies the right to vindicate, that is, to recover possession from a
person who possesses without title to possess derived from the owner2. Grotius
selects this right as the most significant quality of ownership, which he says is
1
6 NLR 1
2
Professor R. W. Lee in his treatise " AN INTRODUCTION TO ROMAN-DUTCH LAW " (5th
Edition
1953) at page 121

8. viii
the relation to a thing by virtue of which a person not having the possession
may obtain the possession by legal process3.
A person claiming to be the owner of an undivided share of land, therefore is
entitled to possession of it in Law and hence competent to maintain an action
to have that land partitioned, although neither he nor his predecessor in title
may have had possession. In such a situation, the plaintiff‟s action for partition
is maintainable even if the defendant wholly denies the title of the former.
ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO AND OTHERS 2006SLR
2 page188 (Supreme Court) Plaintiff's action to partition the corpus was
dismissed as the parties who were said to be entitled to rights in the corpus in
fact had separately possessed with clear and permanent boundaries the Lots
depicted in the preliminary plan for a long period of time. The Court of Appeal
reversed the judgment on the grounds that the District Court has failed to
investigate title. (b) that the parties had failed to prove ouster to claim
prescription.
IT WAS HELD THAT (1) It is imperative that the investigation of title must be
proceeded by a careful examination of the preliminary issue, whether the land
sought to be partitioned is commonly owned as required under5ection2 (1). The
District Judge having carefully examined the question had correctly held that
the land was dividedly possessed as from 1938 and proceeded to dismiss the
action without resorting to a full and exhaustive investigation as to the rights of
the parties which in the circumstances was lawful and justified. The Court
further held that (2) Adverse possession as between co-owners may arise by
absolute exclusion of one of the co-owners or by conversion of undivided shares
into divided shares in an informal manner.
It was also held that Ouster does not necessarily involve the actual application
of force. The presumption of ouster is drawn in certain circumstances where
exclusive possession has been so long continued that it is not reasonable to call
upon the party who relies on it to adduce evidence that at a specific point of
time in the distant part there was in fact a denial of the rights of the other co-
owners. His Lordship Weerasuriya, J. further observed that the decision in
Tilakaratne vs. Bastian4 recognizes an exception to the general rule and
permits adversity of possession to be presumed in the presence of special
3
Grotius " Jurisprudence of Holland " - Commentary by R. W. Lee, 1936 Edn. Vol. II at page 68.
4
21 NLR 12

9. ix
circumstances additional to the fact of undisturbed and uninterrupted
possession for the requisite period. The presumption that possession is never
considered adverse if it can be referable to a lawful title may sometimes be
displaced by the counter presumption of ouster in appropriate circumstances.
IMPRACTICABILITY OF MAINTAINING COMMON POSSESSION OF THE CORPUS
The correct position of Law is that where a plaintiff asks for the partition of a
land of which he is a co-owner, Court cannot refuse it on the ground that the
plaintiff has failed to prove that the common possession is inconvenient and
impracticable. There are several instances where dismissal of partition suits on
the ground of plaintiff‟s failure to prove that possession in common was
inconvenient or impracticable, had been set aside in appeal.
In R. G. P. A. GOONERATNE Vs A. V. P. A. GOONERATNE and another Volume
77 NLR page 271, the question as to maintainability of a partition action was
considered by the Supreme Court. The facts briefly are that "A" filed a partition
suit against B and C, who were the brother and father respectively of A.
During the pendency of the action, C instituted action No. 1035 against his
sons A and B claiming that a donation of land in respect of the same corpus
executed by him in favour of A and B in January 1952 was null and void. The
action brought by C was settled on the date of trial and consent decree was
entered according to which the deed of gift remained unannulled but C was
declared entitled to the life interest over the corpus.
Having considered the contest the Supreme Court held inter alia that the
settlement "of consent" in action No. 1035 was not tantamount to a " voluntary
alienation " within the meaning of section 67 of the Partition Act. Furthermore,
by reason of the life interest given to C by the consent decree, the plaintiff A in
the present action had only the bare dominium of the property without any
right to the usufruct and, therefore, was not entitled to institute an action for
partition. This judgment presently is of no avail in Law by reason of the
amendment made to the Partition Law by Act No 21 of 1997.
Thus, the law as it stands today does not qualify possession as a condition
precedent to file a partition action. Section 2 of the Law No 17 of 1977 enacts
as follows….

10. x
“2. WHERE ANY LAND BELONGS IN COMMON TO TWO OR MORE
OWNERS, ANY ONE OR MORE OF THEM, WHETHER OR NOT HIS
OR THEIR OWNERSHIP IS SUBJECT TO ANY LIFE INTEREST IN
ANY OTHER PERSON, MAY INSTITUTE AN ACTION FOR THE
PARTITION OR SALE OF THE LAND IN ACCORDANCE WITH THE
PROVISIONS OF THIS LAW”.
A close scrutiny of section 2 of the Partition Law reveals that the recent Statute
has recognized the right of a plaintiff having title to an undivided share of a
land, the possession of which remains with another person by reason of the life
interest enjoyed by the latter. This clearly shows that the concept of possession
in a partition action has now totally faded away and the right to institute
partition action by co-owner is almost unqualified and not depended on
possession.
PROPER COURT WHERE A SUIT FOR PARTITION OF CO-OWNED LANDED
PROPERTY HAS TO BE FILED.
Section 3 identifies the Court in which an action for Partition should be filed.
Every partition action shall be instituted by presenting a written plaint to the
District Court, within the local limits of whose jurisdiction the land which is the
subject-matter of the action is situated in whole or in part.
Sub section (2) provides that in the event of an uncertainty as to the local
limits of the jurisdiction of which of two or more courts any land is situated,
any one of those courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to
entertain and dispose of any partition action relating to the land; and such
action so entertained and disposed of shall for all purposes be deemed to be
and to have been duly instituted in a court of competent jurisdiction.
Thus Section 9 of the Civil Procedure Code which enables a plaintiff to file an
action in the court within the local limits of whose jurisdiction (a) a party
defendant resides; or (c) the cause of action arises; or (d) the contract sought to
be enforced was made has no application to a partition action.
PARTITION SUIT and CAUSE OF ACTION.
In the strict sense of the Law a Partition action is not considered as an action
for the prevention or redress of a wrong but they are applications for relief from
joint ownership obtainable through the exercise of the Court‟s powers. Even

11. xi
though the phrase "cause of action" is defined by the Civil Procedure Code as
the wrong for the prevention or redress of which an action may be brought, and
includes the denial of a right, the refusal to fulfill an obligation, the neglect to
perform a duty and the infliction of an affirmative injury; The „cause of action, if
any, in a partition action is the inherent right of a co-owner to secure a divided
holding of the common property or to obtain his share in the proceeds of the
property.
No action can be brought to partition a corpus which in itself is an undivided
portion of a larger common land. The cause of action in a partition action is
recurring in nature and based on inconvenience of common ownership. A
partition action has always been recognized as having a special character in
that every party has the double capacity of plaintiff and defendant. Gaius in
Digest V. 1.13, observes that there are no defendants in a partition action. Voet
says that in a partition action all the parties have the double capacity of
plaintiff and defendant. (vide 34. N. L. R. 241.)
It is no doubt correct that the existence of a dispute between co-owners, or
between a co-owner and some person whose claim to some interest is denied, is
often the occasion for the institution of a partition action; and that a partition
decree often serves finally to resolve such disputes. Nevertheless, a partition
action is not based upon a " cause of action " as defined in the Civil Procedure
Code, but upon the right, independently recognized by s. 2 of the Partition Act,
of any co-owner to seek a partition or sale of co-owned land. Although it is
usual to follow now the former practice of averring in a partition plaint the fact
that common possession is not convenient, the Partition Act does not require
such a fact to be averred or proved. It is thus clear from s. 2 that the
jurisdiction of a Court under the Partition Act is not principally to resolve and
determine disputes, but to ascertain the rights or interests of persons in land
which is owned in common, and to divide the land into separate portions
among the former co-owners. If then a co-owner has a right to institute an
action for partition of a land, although no one disputes the rights or interests
claimed or admitted in the plaint, the fact that some dispute does exist as to
such rights or interests cannot derogate from or qualify the right to institute
the action5.
5
Vide R.Aranolis Vs R.Hendrick 75 NLR75 P532

12. xii
In the case of KARUNARATNE Vs RANASINGHE HAMINE (since deceased and
substituted by S. R. A. KARUNAWATHIE) AND OTHERS6 the question relating
to the right to bring a partition action by the plaintiff who burdened his entire
undivided rights to a usufructuary mortgage bond was considered. It was
decided that a plaintiff whose share is subject to a usufructuary mortgage bond
in favour of a defendant has full ownership though possession is lost until the
redemption of the bond. Such a person can be said to be in possession through
the mortgagee and is entitled to file a partition action.
SUBJECT MATTER OR THE CORPUS IN A PARTITION SUIT
A partition action can be instituted under the Partition Law for the partition or
sale of any land or lands belonging in common to two or more owners. Whilst
this adjudicates the rights of the parties in a partition case, the Court is obliged
to make determinations with regard to the issues relating to the ownership of
the buildings, cultivations, any other improvements in the corpus and life
interests, mortgage rights and servitudes existing over the corpus.
It is essential to disclose the subject matter of the partition case with definite
boundaries and certainty. The plaintiff is required to cause a survey of the
corpus and to have a preliminary plan prepared to identify the land with
certainty. A partition action may proceed on the basis of the preliminary plan
prepared according to the Partition Law, despite certain discrepancies in the
description of land and the extent thereof in the plaint and the preliminary
plan.
When a co-owner, who has erected a new building on the common land
remains in possession of that building, such possession does not necessarily
mature into the prescriptive title to the building and the soil on which it stands
as against the remaining co-owners .
The mere fact of execution by co-owners, of deeds dealing with specific or
divided portion of a common land does not per-se establish that there was an
arrangement arrived at by the co-owners to divide the land in such a manner
that title was to be affected.
If persons who are entitled by prescription to a land persist after they have
acquired that title, in conveying an undivided share of the whole land of which
what they possessed is a part; and if the persons so deriving title pass on the
6
1993 Sri Lanka Law Reports - Volume 1 , Page No - 299

13. xiii
same title to others, then the persons claiming under that title unless they can
show that they themselves have acquired a title by prescription, must be bound
by the terms of their deeds.7
A Partition Action was instituted to partition a land in extent of 1 Acre, 3 Roods
and 8 Perches. The said land admittedly was a part of a larger land in extent of
24 Acres. The plaintiffs‟ claim was that they and their predecessors in title
possessed the corpus separately as a divided block of land and acquired a
prescriptive title. Some of the deeds on which the plaintiffs claimed title
referred to undivided shares of the larger land of 24 Acres. The District Judge
overruled the objection and entered a partition judgment on the basis that the
plaintiff had established prescriptive title to the smaller land and pedigree
pleaded in the plaint.
Applying the principle laid down in Fernando Vs. Podi Singho (see foot note 1)
the appellate court held that the plaintiff and the defendants whose title is
based on each of the deeds referred to will get no larger fraction of the corpus
sought to be partitioned than that set out in the deeds in respect of the larger
corpus. Accordingly the District Court judgment was affirmed and appeal was
dismissed.
It is trite Law that where a land is possessed in different portions by different
co-owners for convenience of possession, a partition action cannot be
maintained in respect of one portion only; the entire land should be brought
into the action.
A decision which is particularly relevant to the question of identity of the
corpus and hitherto followed by our courts, is embodies in the judgment in
Brampy Appuhamy Vs. Menis Appuhamy . The facts of Brampy Appuhamy „s
case reveal that the corpus sought to be partitioned in that was around six
acres in extent. Somewhat remarkably, the land surveyed at the preliminary
survey was only two acres and three roods. Interlocutory decree also entered in
respect of a land of two acres and three roods without any question being
raised by any of the parties as to the wide discrepancy between the extent in
the plaint and that shown in the preliminary plan. None of the defendants had
averred under section 23(1) of the Act, that only a portion of the land described
in the plaint should be made the subject matter of the action. Basnayake CJ.
7
Fernando Vs. Podi Singho (1927 (6) Ceylon Law Recorder 73.

14. xiv
held, that the Court acted wrongly in proceeding to trial in respect of what
appeared to be a portion only of the land described in the plaint.
When the surveyor proceeded to execute his commission and was unable to
locate a land about six acres, he should have reported that fact to Court and
asked for further directions. In a partition action, it is imperative that the
provisions of the Partition Act should be strictly observed. The Court also
observed that there was absence of due diligence or care on the part of the
proctors in proceeding with an abortive trial.
On the other hand if the commissioner includes a portion into the corpus
which is not the part of the subject matter the court has every power to exclude
it. This principle was dealt in Thegis Appuhamy Vs Hendrik Singho 61 CLW
102.
A different approach to a similar problem has been made in Luinona Vs.
Gunasekera8 where it was emphasized that the Partition Act makes no
provisions for excluding from a partition action. After lis-pendens is duly
registered, any part of the land to which the action relates and if allotments of
land of which some of the parties to the action are sole owners are included by
the plaintiff in his action, the only way of dealing with them under the scheme
of the Act is by declaring in both the interlocutory and final decrees such
parties entitled to those separate allotments.
In a partition action there is a duty cast on the Judge to satisfy himself as to
the identity of the land sought to be partitioned and for this purpose, it is
always open to him to call for further evidence in a regular manner in order to
make a proper investigation .
Any plan which the parties may seek to put in evidence must be marked if
necessary for their case, and duly proved, if objected to.
Can a land outside the corpus be declared in a partition action as a right
of way to the corpus?
Partition Law does not authorize a court to partition or make an order
relating to right, title or interest in a land that fell outside the corpus.
Udulagama v Kempitiya [2002] 3 Sri LR 1 (CA) [154]
8
60 NLR 246

15. xv
In Kanthia Vs. Sinnatambi (1913(2) Bal. Notes of Cases 19) Weerasooriya J.
decided that no such declaration can be obtained in a partition case that a land
outside the corpus to be partitioned is subject to a servitude.The above decision
was followed in the case of Thambiah Vs. Sinnathamby9
The Supreme Court in Banda Vs. Weresekera10 where stressed that the Courts
are empowered to entertain partition actions only in respect of lands which are
co-owned. Our Courts have persistently, discouraged with strong disapproval of
any attempt to misuse the statutory right of filing a partition suit, for the
purpose of dealing in an action with distinct portions of land in which the
shareholders and the interests are not the same.
In the case of Hevavitharana Vs. Themis de Silva 63 NLR 68 the question
arose for decision was whether the District Court has inherent power, under
section 839 of the Civil Procedure Code to make an order excluding a separate
or divided lot of land which has been wrongly included by the plaintiff as being
part of the corpus. Section 26 (2) does not exhaust the powers of the Court,
since the words of the sub-section show that the interlocutory decree
contemplated by it " may include " one or more of the remedies set out there.
The use of the words ''may include" suggest that the orders specified in the
sub-section are not exhaustive. Thus although there is no provision in section
26 to dismiss an action, the Court's power to do so cannot be questioned.
Thambiah,J, with whom L B de Silva, J concurring the Supreme Court
reiterated that there is no provision in the Partition Act that the Court is
obliged to make any of the orders set out in section 26 (2), in respect of the
land that is described in the plaint. Nor is there any provision in the Act
providing for the declaration of title to a land solely owned by a person, which
has been wrongly included in the corpus sought to be partitioned. In such
cases the practice hitherto has been to exclude the land which is outside the
subject-matter of the partition action and which is proved to have been the
property of a person who is not a party to the proceedings. It is not uncommon
for a plaintiff to include small portions of land in the corpus belonging to other
persons. In all such cases if the Court has to adjudicate also on the title of the
owners of those lands, then the Court will be obliged to investigate the title of
lands which do not come within the purview and scope of section 2 of the
Partition Act. Further, if the Court has to examine the title of persons whose
9
61 NLR 421 and 55 CLW 55
10
23 N.L.R. 157

16. xvi
lands have been wrongly included in the corpus, great inconvenience and
hardship may be caused to persons who may be quite content to possess such
lands in common or, if it happens to be the land of a single individual, to
possess it by himself. In our view it is not the intention of the legislature in
passing the Partition Act that the Court should partition any lands other than
those that came within the ambit of section 2 of the Act.
As section 26 does not exhaust all the orders which a Court could make, in our
view the Court has the inherent power, under section 839 of the Civil Procedure
Code, to make an order excluding a lot which has been wrongly included in the
corpus.
In coming to the above conclusion the court in Hevavitharana Vs. Themis de
Silva, differed from the ruling in Luinona's case (60 NLR 346) where it was
earlier held that the Partition Act makes no provision for excluding from a
partition action, after lis pendens is duly registered, any part of the land to
which the action relates. If allotments of land of which some of the parties to
the action are sole owners are included by the plaintiff in his action, the only
way of dealing; with them under the scheme of the Act is by declaring in both
the interlocutory and final decrees such parties entitled to those separate
allotments.
In coming to the above conclusion in the case of Hevavitharana Vs. Themis de
Silva 63 NLR 68 the Court followed the age old principle that Courts are not to
act upon the principle that every procedure is to be taken as prohibited unless
it is expressly provided for by the Code, but on the converse principle that every
procedure is to be understood as permissible till it is shown to be prohibited by
the law. As a matter of general principle prohibitions cannot be presumed. This
principle was succinctly laid down in the Indian case of case of Narsingh Das
Vs. Mangal Dubey (1883 (5) Allahabad 163 at page 172.
IT VERY IMPORTANT TO BEAR IN MIND THAT Every procedure is
permitted to the court for doing justice unless expressly prohibited,
and not that every procedure is prohibited unless expressly permitted.
In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB)(1882), Mr. Justice
Mahmood, the celebrated Judge of theAllahabad High Court, observed:-
“Courts are not to act upon the principle that every procedure is to be taken
as prohibited unless it is expressly provided for by the Code, but on the
converse principle that every procedure is to be understood as permissible
till it is shown to be prohibited by the law. As a matter of general principle

17. xvii
prohibition cannot be presumed. The above view was followed by a Full
Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen &
others, AIR 1966 Allahabad 84 FB
In the case of Sopaya Silva Vs. Magilin Silva (1989 (2) S.L.R. 105) the plaintiff
had filed the action to partition a land of 8 Acres, 3 Roods and 29 Perches and
lis-pendens were registered in the folios where the deeds for the land were
registered. When the commission was taken out, the Commissioner surveyed
an extent of 11 Acres, 1 Rood and 33 Perches. No contest was raised about the
registration of the lis-pendens. At the trial the contest was resolved and
evidence led accordingly. The District Judge dismissed the case holding that
the lis-pendens was wrongly registered.
In appeal S.N. Silva, Judge of the Court of Appeal (as he was then) held that it
was not open to the District Judge to dismiss the action, based on the ground
of wrong registration of the lis-pendens, a point on which there was no contest
and no argument was heard. The court expressed its view on the matter as
being a strong case of a violation of natural justice. Since the lis-pendens
having been correctly registered in the folios where the deeds of the land
described in the plaint were registered, on receipt of the surveyor‟s return
which disclosed that a substantially larger land was surveyed the court of
appeal emphasized that the district judge should have decided on one of the
following courses after hearing the parties.
(i) to re-issue the commission with instructions to survey the land as
described in the plaint. The surveyor could have been examined as provided in
section 18(2) of the Partition Law to consider the feasibility of this course of
action.
(ii) to permit the plaintiffs to continue the action to partition the larger land
as depicted in the preliminary survey. This course of action involves the
amendment of the plaint and the taking of consequential steps including the
registration of a fresh lis-pendens.
(iii) to permit any of the defendants to seek a partition of the larger land as
depicted in the preliminary survey. This course of action involves an
amendment of the statement of claim of that defendant and the taking of such
other steps as may be necessary in terms of section 19(2) of the Partition Law.

18. xviii
In the preparation of the preliminary plan and report, it is of much significance
to adhere to the provision in section 18 (1) (a) (iii) of the Partition Law, which
requires a surveyor to report whether or not the land surveyed by him is
substantially the same as the land sought to be partitioned as described in the
schedule to the plaint. Considering the finality and conclusiveness that
attached in terms of section 48(1) of the Partition Law to the decree in a
partition action, the Court should insist upon due compliance with this
requirement by the surveyor.
In Amarasinghe Vs, Wanigasuriya (1994 (2) S.L.R. 203) an application was
made to the Court of Appeal in revision and or restitutio in integrum against
the order made by the District Court confirming the scheme of partition as
contained in the final plan and the report of the surveyor.
The petitioners were not parties to the above partition action and they have no
interests in the corpus for partition. The only matter of dispute in the said
application, relates to the „road‟ as depicted along the north western boundary
of the corpus in the final plan. The petitioners claim that the said „road‟ is a
„private road‟ serving the petitioners who own the land to the west of the
corpus, to the exclusion of the co-owners of the corpus.
They submitted that their rights are affected by the scheme of partition as
contained in the final plan wherein the Surveyor has partitioned the corpus
using the said „private road‟ as the only means of access to the lots 2,3,4 and 5
of the corpus.
The order confirming the scheme of partition and the final decree that has been
entered, have the effect of creating a servitude of way in favour of the parties to
the partition action over the „private road‟ which is outside the corpus, without
the petitioners being heard on this matter. On this basis, they moved that the
final decree be set aside and suitable direction given by this Court to the
District Court to safeguard the interests of the petitioners in relation to the
„private road‟ to which they are exclusively entitled. Having heard the
arguments for and against the application for restitio in intergrum the court of
appeal held that in the process of partitioning, proper rights of way should be
provided from within the corpus as access to a public right of way. The road
claimed by the petitioners was not a viavicinalis. There was no proof of
immemorial use of the disputed roadway or prescription. There was a
fundamental error in confirming the scheme of partition without affording
the petitioners an opportunity to object to it. It was further held that a glaring

19. xix
blemish which taints the proceedings in a partition action and results in a
miscarriage of justice to a person not being a party to the action may
appropriately be remedied by an application in revision.”
Trust property
Section 83 in the Partition Law defines that a constructive or charitable trust
has the same meaning as in the Trust Ordinance No. 9 of 1917.
An issue touching upon the validity of a final decree subject to a constructive
trust was dealt in the case of Babunona Vs. Coranelis Appu11. the defendant,
who held a share of a land in trust for the plaintiffs was allotted the share by
decree in a partition suit.
The plaintiffs were not entitled to compel the defendants to execute a transfer of
the land, and that his only remedy was one for damages.
In Galgamuwa Vs. Weerasekera (21 N.L.R. 108) the plaintiff brought the action
to partition the corpus between himself and six other defendants.
The plaintiff claimed that he was an heir of one Banda and sought to partition a
land as against the other heirs of Banda. The respondents after interlocutory
decree, sought to intervene, alleging that Banda held certain shares of the land
in trust for them. De Sampayo J. held that the respondents were entitled to
establish the trust in this action.
In the case of Weeraman Vs. De Silva (22 N.L.R. 107) A land, a share of which
was bought by the defendant in trust for the plaintiff became the subject of a
partition action, was sold under the partition decree, and a sum of money was
in Court representing the share in question. The plaintiff was declared entitled
to it. The partition decree had no effect of wiping out the trust.
In Marikar Vs. Marikar (22 N.L.R. 137) Bertram C.J. held that a trust, express
or constructive, is not extinguished by a decree for partition, and attaches to
the divided portion which on the partition is assigned to the trustee.
11
14 NLR 45

20. xx
PLAINT IN PARTITION ACTION- REQUISITES
In terms of section 4(1) of the Partition Law all requisites of a plaint as defined
in Chapter VII of the Civil Procedure Code to be complied with. In addition
section 4(1) of the Partition Law requires furnishing the following particulars
(a) the name, if any, and the extent and value of the land to which the action
related.
(b) a description of that land by reference to physical metes and bounds or
by reference to a sketch, map or plan which shall be appended to the plaint.
(c) the names and addresses of all persons who are entitled or claimed to be
entitled to any right, share, or interest to, of, or in that land or to any
improvements made or effected on or to that land and the nature and extent of
any such right, share, interest or improvements, so far as such particulars are
known to the plaintiff' or can be ascertained by him; and
(d) a statement setting out, with reference to a pedigree which shall be
appended to the plaint, the devolution of the title of the plaintiff, and where
possible, the devolution of the title of every other person disclosed in the plaint
as a person entitled or claiming to be entitled to that land, or to any right,
share or interest to, of, or in, that land.
Although it is usual to follow now the former practice of averring in a partition
plaint the fact that common possession is not convenient, the Partition Act
does not require such a fact to be averred or proved.
In the case of Vethavanam Vs. Retnam (60 N.L.R 20) the Court dismissed the
plaint after acceptance on the ground that the plaint had not disclosed a
necessary party. But the Supreme Court held that the Court has no jurisdiction
to dismiss a plaint after acceptance if the plaint is not defective prima facie.
SOYSA V SILVA AND OTHERS 2000 SLR VOL 2 235 deals with the
requirements to bring in a larger land into the action. The Plaintiff instituted
action to partition Lot A in extent 34 Perches. The Defendant contended that it
consists of Lots A. B and C and is in extent of 3 Roods. The District Court held
that the corpus consists of lots A and B, and C, and further held that the 2nd
Defendant had prescribed to the said land. Being aggrieved the 3rd Defendant
lodged an appeal which was rejected. Thereafter the Petitioner moved by way of
Revision.

21. xxi
It was held that (i) The power given to a Superior Court by way of Revision is
wide enough to give it the right to revise any order made by an original court.
Its object is the due administration of justice and the correction of errors
sometimes committed by the Court itself in order to avoid miscarriage of
justice. (ii) On reading S. 19(2)(a) it is imperative on the part of the Defendant
who seek to have a larger land than that sought to be partitioned to follow the
procedure laid down in Ss. 4, 5, 6, of the Partition Law. The Defendant who
sought to partition a larger land than that of the Plaintiff has not followed the
imperative procedure laid down in S19(2)(g). (iii) The mere registration of the
lis pendens alone would not entitle the 2nd Defendant to have a larger land
partitioned unless he follows the procedure laid down in S. 19(2)(a)-(g).
Under S. 19(2)(g) requirement of S.12 becomes applicable to a defendant who
seeks to have a larger land partitioned. (iv) Error in not following the provisions
of S.19(1) amounts to an illegality, thus Revision lies.
Stamp duty
In terms of section 74(1) of the Partition Law all pleadings and processes and
all documents filed or produced in a partition action are exempted from stamp
duty. Similarly all partition deeds also are exempted.
SURVEYORS and COMMISSIONERS OF COURT.
In partition cases, Licensed Surveyors and the Surveyor General play an
important role. So much so, it is widely accepted that the disposal of partition
cases could be expedited depending on the pace kept by the surveyors in
executing the commissions issued to them both in respect of the preliminary
survey and the preparation of the scheme of partition. Hence, it is the duty of
the Bar and the Bench to ensure that a friendly atmosphere is created to
enable the surveyors to discharge their duties with contentment. In addition,
the surveyors also must realize that they have duty by the suitors to execute
the commissions without unnecessary delay.
Section 73 the Partition Act imposes a duty on the district judge to have proper
control over the panel of Surveyors. Before including the name of a surveyor in
the list prepared under subsection (1), the court shall make such inquiries as
may be necessary to ascertain whether a particular surveyor will be regularly
available to undertake the commissions issued to them.

22. xxii
The Partition Law requires that the District Judges prepare a list of Surveyors
who reside or carry on business within the jurisdiction. This list is prepared to
facilitate the issuance of commissions in partition cases. It further requires that
the list of surveyors is periodically reviewed by the district Judge and the
names of those who are unfit to hold such office are removed forthwith.
Partition Amendment Act No. 6 of 1987, 5 of 198 and 17 of 1997 deal at length
on matters regarding the execution of commissions by the commissioners.
DUTIES OF THE REGISTERED ATTORNEY AT LAW IN PARTITION CASES
TO ELIMINATE INORDINATE DELAY IN THE DISPOSAL OF PARTITION
SUITS.
1. To tender the Commission papers for the preliminary survey at the first
available opportunity.
2. To deposit the initial survey fees without delay.
3. Upon the return of the commission to pay up the balance survey fees, if
any, without delay.
4. Upon entering the interlocutory decree to partition the land or sale to
tender the commission papers without unnecessary delay along with the proof
of initial deposit for that purpose.
There are instances where parties in a partition action have taken more than a
year to pay the balance survey fees. This is very unsatisfactory and every step
should be taken to avoid delay in the payment of balance Survey fees. It is
preferable, if judges could instruct the registry by way of standing orders to
ascertain the balance survey fees within a week from the date on which the
Surveyor makes his return. Thereafter, the Registrar can immediately write to
the party at whose instance the Commission was issued to pay the survey fees
on or before a particular date. For this purpose he need not write separate
letters each time he needs to communicate to a party. He can prepare a printed
letter for that purpose which can be perfected by a clerk immediately calling
upon him to pay the survey fees and dispatch the same by post. If the party
concerned fails to pay the Survey Fees the Registrar should follow it up and
send a reminder about the payment drawing the attention of the party at
default that his undivided interests of the subject matter are liable to be sold in

23. xxiii
satisfaction of the balance survey fees. This would bring about the desired
result and the inordinate delay in the execution of Commissions can be avoided
to a great extent.
Necessary parties
Section 5 of the Partition Law deals with the parties who are required to be
included in the action. It reads as follows…
5. The plaintiff in a partition action shall include in his plaint as parties to the
action all persons who, whether in actual possession or not, to his knowledge
are entitled or claim to be entitled-
(a) to any right, share or interest to, of, or in the land to which the action
relates, whether vested or contingent, and whether by way of mortgage, lease,
usufruct, servitude, trust, life interest, or otherwise, or
(A) to any improvements made or effected on or to the land: Provided that in the
case of a mortgage, the mortgagee or any person claiming any interest under
him shall be included as a party only if he has registered an address for service
of legal documents in terms of sections 6 and 28 of the Mortgage Act ;
Provided further that if such mortgagee or person aforesaid claims under an
instrument executed more than fifteen years prior to the institution of the
action, he shall not be a necessary party to such action, unless he has
registered an address for service of legal documents in terms of the aforesaid
provisions of the Mortgage Act within a period of ten years prior to the date of
institution of the action.
In virasingha Vs Virasingha, SLR 2002, Vol :1, Page: 264 the plaintiff
instituted action in terms of partition Law, No. 21 of 1977, seeking a sale of the
corpus, since a substantial house located in the premises covers almost the
entirety of the land and a partition thereof is not possible. The 4th defendant-
respondent (the 4th defendant) claimed that he was a lessee of the premises
upon an indenture of lease which had been notarially attested. At the trial of
the action the 4th defendant put the lease in issue (issue No. 10) and further
claimed that the Rent Act applies, that the plaintiff was estopped from denying
tenancy and that he was a tenant of the co-owners of the premises (issues Nos.
11, 12 and 16). The 4th defendant also claimed that he was entitled to
compensation for useful and necessary improvements which he had effected
(issue No. 13).

24. xxiv
At the conclusion of the trial, the district judge held the Indenture of Lease
relied on by the 4th defendant, was executed after the lis pendens was
registered and as such was void in terms of section 66 (2) of the Partition Law.
This is undoubtedly so, and the 4th defendant has not appealed from these
findings. As regards the claim for compensation, the Court has held that the
documents produced as to the expenditure have not been proved and the 4th
defendant failed to establish that he got the consent of the plaintiff and the 1st
and 2nd defendants to effect any improvements. Therefore, these issues were
also answered against the 4th defendant and he has not appealed from the
findings.
The issues as to tenancy have been answered in favour of the 4th defendant
and it was held that the Rent Act applies in respect of the premises and that he
is the tenant of the co-owners (issues No. 10, 11, 12 and 16). The plaintiff
appealed from the said findings to the Court of Appeal. The appeal was
dismissed by the Court of Appeal.
The Supreme Court setting aside the judgment of the Court appeal decided that
the Partition Law makes the same distinction as made in section 2 of the
Prevention of Frauds Ordinance of 1840, in respect of the type of lease that
would not be considered as an encumbrance affecting land. In both laws, whilst
a lease for a specified period exceeding one month is considered an
encumbrance affecting land and should be notarially executed, a lease at will or
for a period not exceeding one month (same language used in both laws) is not
considered an encumbrance affecting land. Therefore, it is not permissible to
enter a finding, in a judgment, interlocutory decree or final decree, in a
partition action with regard to any claim of a monthly tenant in respect of the
land that is sought to be partitioned. It further held that in view of the
provision of section 5 (a) read with section 48 (1), the claim of a monthly tenant
is not within the scope of a partition action. It is not permissible to enter a
finding, in a judgment, interlocutory decree or final decree, in a partition action
with regard to any claim of a monthly tenant in respect of the land sought to be
partitioned. Such question should be considered, if at all, at the stage of
execution in terms of section 52 of the Law.
Commenting on the failure of Court to notice a necessary party disclosed in the
surveyors report which required consideration as to whether a certain allotment
of land depicted in the preliminary plan needed the exclusion, in Rev Indurewe

25. xxv
Dhammananda Vs Piyatissa And Another12 the court of appeal held that the attendant
circumstances of the case, supported the conclusion that in spite of the
Surveyor's report detailing the areas to be excluded no effort was made to issue
notice on the necessary parties and at the trial when the contents of the report
of the Surveyor was considered the same received scant attention. Besides the
report of the Surveyor without doubt became very relevant to the investigation
of title. This, I hold is a glaring lapse which taints the entire proceedings and
transcend the bounds of procedural errors. In accordance with the evidence of
the plaintiff lot (1) depicted in the plan had been exempted from the partition
and on the bare statement of the plaintiff lots (2) (3) (5) and (8) had been
included despite the clear finding of the Surveyor who said that the said lots
formed part of a separate adjoining land. In the absence of cogent evidence of
prescriptive possession of the lots (2) (3) (5) and (8) which lots the Surveyor
categorically stated formed part of the adjoining land and there been no steps
taken under the provisions of section 5 of the Partition Law and, however, as
setting aside all proceedings would be too sweeping and may cause
unnecessary hardship, inconvenience and delay, I would in the circumstances,
to meet the ends of justice direct that the interlocutory decree
ADDITION OF PARTIES
Section 69 (1) provides, for addition of parties in a partition action. In terms of
section 69 the court may at any time before judgment is delivered in a partition
action add as a party to the action, on such terms as to payment or
prepayment of costs as the court may order-
(a) any person who, in the opinion of the court, should be, or should have been,
made a party to the action, after issuing to such person, a notice, requiring him
to make an application to be added as a party to the action on or before the
date specified in the notice, and upon such person making such an application
or;
(b) any person who, claiming an interest in the land, applies to be added as a
party to the action.
(1A) Any person who applies to be added as a party under the provisions of
subsection (1) of this section, shall file, along with his application, a
memorandum substantially in the Form set out in the Second Schedule to this
12
2001 SLR 3 365,

26. xxvi
Law nominating in accordance with the provisions of section 81, a person to be
his legal representative for the purposes of the partition action in the event of
his death pending the final determination of the action.
(2) Where a person is a party to a partition action and his right, title and
interest to or in the land to which the partition action relates are sold, during
the pendency of the partition action, in execution of, or under any decree, order
or process of any court, the purchaser of such right, title and interest at the
sale shall be entitled to be substituted for that person as a party to the
partition action, and such purchaser when so substituted, shall be bound by
the proceedings in the partition action up to the time of substitution. The
purchaser shall, along with his application to be substituted, file a
memorandum, substantially in the form set out in the Second Schedule to this
Law, nominating in accordance with the provisions of section 81, a person to be
his legal representative for the purposes of the partition action in the event of
his death pending the final determination of the action.
(3) Where a party to a partition action derives his right, share or interest to, of
or in the land to which the action relates under or by virtue of a revocable deed
of gift made by any other person or an instrument which reserves to any other
person the right to claim a re-transfer of such right, share or interest as
aforesaid within a period specified therein, such other person shall be entitled
to intervene at any time before judgment in the said action and establish the
right claimed by him as if he had been a co- owner at the time of the institution
of the action. An intervenient under this subsection shall, with his application
to intervene, file a memorandum substantially in the form set out in the Second
Schedule to this Law nominating, in accordance with the provisions of section
81, a person to be his legal representative for the purposes of the partition
action in the event of his death pending the final determination of the action.
(4) It shall be lawful for the court to order any person applying to be added as a
party under subsection (1), to give security for costs or prepay costs if the court
is of opinion that such applicant has been guilty of unreasonable delay in
presenting his claim or for other good and sufficient cause.
(5) In determining the quantum of the costs to be ordered under this section,
the court shall take into consideration, any delay on the part of the applicant,
the stage at which the action is, any expenditure caused unreasonably to the
parties and any other matter that the court may consider relevant.

27. xxvii
(6) Where any person referred to in this section who is ordered to give security
for costs or prepay costs, fails to give such security or make prepayment of
costs, within the time allowed therefor by court, the court may reject his
application. The Court may at any time before judgment is delivered in a
partition action, add any person as a party to the case, if the Court is of the
opinion that such person is having any interests in the land. The Court is also
empowered to issue notice on any such person in the form of second schedule
of the Law, requiring him to make an application to be added as a party on or
before the date specified in the notice. When any such application is made, the
applicant shall file along with his application a memorandum substantially in
the form set out in the second schedule to the Law, nominating a person to be
his legal representative for the purpose of action in the event of his death
pending the final determination of the action, as contemplated in section 81 of
the Law.
Where a person is a party to a partition action and his rights, title and interest
to or in the land to which the partition action relates are sold, during the
pendency of the partition action, such party is entitled to be substituted and
shall be bound by the proceedings in the partition action up to the time of the
substitution. Such rights may be transferred in execution of any decree or any
other process of the Court or by a sale.
When the purchaser makes an application to that effect he shall file a
memorandum substantially in the form set out in the second schedule of the
Law nominating a representative as required by section 81 of the Law.
When a party to a partition action derives his rights, share or interest to, of, or
in the land to which the action relates under or by virtue of a revocable deed of
gift made by any other person or an instrument which reserves to any other
person the right to claim a retransfer of such right, share or interest as
aforesaid within a period specified therein, such other person shall be entitled
to intervene at any time before judgment in the said action and establish the
rights claimed by him, as if he had been a co-owner at the time of the
institution of the action. Any intervenient who makes such application shall
also file a memorandum as contemplated in section 81 of the Law.
It is lawful for the Court to order to give security for cost against the person
applying to be added if the Court is of the opinion that such applicant has been
guilty of unreasonable delay in presenting his claim or for other good and
sufficient cause.

28. xxviii
In determining the quantum of costs the Court shall take into consideration,
any delay on the part of the applicant, the stage at which the action is, any
expenditure caused unreasonably to the parties and other relevant matters. If
any person has failed to give security for costs or prepay costs within the time
allowed therefore by Court, the Court may reject his application. The Court is
empowered to make any appropriate order with regard to payment or pre-
payment of costs at its discretion in all kinds of applications for addition of
parties as referred to above.
The case of Perera Vs. Perera (2 N.L.R. 370) illustrates the kind of
disqualification that may stand in the way of filing a partition suit when he is
not in possession of the corpus and his alleged title is in dispute. The facts
briefly in that case are the father gifted a land to his daughter which she
handed it back to him for safe keeping. She never possessed the land and the
father let it to the tenant and collected the rents. The dispute arose when the
father claimed the prescriptive title after the death of the daughter. It was
decided that the father‟s possession was in trust for his daughter and not by a
title adverse to her. No partition suit was available to the father when he has no
possession and when his title is disputed.
The soundness of the ruling in Perera Vs. Perera (2 N.L.R. 370) was doubted in
Silva Vs. Paulu (4 N.L.R. 174) where Lawrie J. himself expressed his
dissatisfaction as to the correctness of ruling that an action for partition cannot
be brought by a person not in possession and where his title is disputed. It was
further held that in partition suits the Court ought not to proceed on
admissions, but must require evidence in support of the title of all the parties
and allot to no one a share except on good proof.
The decision in Sinchi Appu Vs. Wijegunasekera (6 N.L.R. 1) put an end to the
controversy to a great extent. The Supreme Court in that case held that a
person claiming to be the owner of an undivided share of a land, and to be
therefore entitled to possession of it, is competent to maintain an action to have
that land partitioned despite the fact that he nor his predecessors had no
possession, and although the defendants wholly deny his title.
The question whether in a partition action the corpus should be confined to one
land was the subject of discussion in a case that originated in the district court
of Colombo and Bonser CJ in that time thought it was not possible. Later in the
case of Peris Vs. Peris (6 N.L.R. 321) Layard C.J., held that the Partition

29. xxix
Ordinance No. 10 of 1863 permits an action to be raised for the partition or
sale of several lands held in common.
In Daniel Vs. Saranelis Appu (7 N.L.R. 163) Layard C.J. decided that 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.
CAN A PARTITION SUIT BE INSTITUTED IN RESPECT OF A PORTION OF A
LARGER LAND.
It is trite law that an action for partition cannot be brought in respect of the
corpus which in itself is an undivided portion of a larger common land. In the
case of Girigoris Appuhamy Vs Maria Nona 60 NLR 330 it was held that where
land is possessed in different portions by different co-owners for convenience of
possession, a partition action cannot be maintained in respect to one portion
only, and that the entire land should be brought into the action. Brampy
Appuhamy Vs Manis Appuhamy 60 NLR 337 is an important decision as
regards the validity of an interlocutory decree entered in respect of smaller land
than what the plaintiff sought to partition in his plaint.
The corpus sought to be partitioned by the plaintiff was described in the plaint
as a land of about six acres in extent, and the commission was issued to a
surveyor to survey a land of that extent. The surveyor, however surveyed on
land only two acres and three roods. Interlocutory decree was entered in
respect of two acres and three roods and in extent without any question being
raised by any of the parties as the wide discrepancy between the extent given in
the plaint and that shown in the planned made by the surveyor. None of the
defendants had the averred under section 23 (1) of the partition act that only a
portion of the land described in the plaint should have been made the subject
of the action. It was held that the district court acted wrong in this allows the
in proceeding to trial in respect of what appeared to be a portion only of the
land described in the plaint.

30. xxx
Executors and administrators
In terms of section 56 of the Partition Law, no person acting in the capacity of
an executor or administrator shall institute a partition action in respect of any
land belonging to the estate which he is administering.
Before the commencement of the operation of the present Partition Law, in the
case of Weerasooriya Vs. Bastian (Jayawardena‟s Partition, 2nd edition, page
37) Bonser C.J held, that an executor cannot institute a partition action
without obtaining the prior permission from the Court.
Legal representatives
Section 81(1) of the Partition Law requires every party to a partition action to
file a memorandum substantially in the form set out in the second schedule of
the Law nominating at least one person, and not more than three persons, in
order of preference to be his legal representative for the purpose of the action in
the event of his death pending the final determination of the action. Such
representatives are known as „nominees‟ and the parties who made such
nominations are known as „nominators‟. In the event of the death of such a
nominator, one of such nominees shall be substituted in place of the deceased
nominator in order of preference according to the memorandum.
In the event of the death or incapacity of the nominee, whose name appears
first in the memorandum, the next person nominated in order of preference
shall be deemed to be the legal representative for the purpose of the action, in
the event of the death of the nominator.
When a' person is so nominated he shall subscribe his signature to the
memorandum signifying consent to be so appointed as legal representative. The
signatures of the nominators and nominees have to be witnessed by an
Attorney-at-Law or Justice of Peace or a Commissioner for Oaths.
In any event, failure to file such memorandum together with a plaint, statement
of claim, or an application for addition of parties is not considered as a defect to
dismiss such papers notwithstanding the provisions in section 7 of the Law.
The Court is empowered to make an order on its own motion or on an
application of any party to file a memorandum of the above mentioned nature
at any time before the final determination of the action. If a nominee desires
withdrawing from his capacity of nominee, he is entitled to make an application
to the Court to that effect and the Court can make an order to strike off the

31. xxxi
name of such nominee from the memorandum. When such nominee is
permitted to withdraw, the nominator is entitled to furnish a fresh
memorandum by nominating one or more new persons to be his nominees.
In terms of section 81(5) the nominator too is entitled to make an application
with notice to the nominees to tender a fresh memorandum nominating one or
more new nominees. When the Court accepts the new memorandum, the
previous memorandum filed by that party stands revoked and the fresh
memorandum shall forthwith take effect.
Upon the death of the nominator, the person first nominated in the
memorandum, shall be deemed to be the legal representative of such
nominator. Such legal representative is entitled to take all such steps for the
purpose of the action as the deceased nominator would have been entitled to
take had he been alive. Such a nominee is bound to act as legal representative
in the case. If he declines to act in such a capacity, he shall obtain the leave of
the Court after making an application by way of petition with notice to the
other nominees, if any in the memorandum. The Court after considering such
an application is empowered to make an order releasing such a nominee from
his responsibility.
In the event of the Court granting such permission, the nominee who is next in
order of preference in the memorandum filed by the nominator shall be deemed
to be the legal representative of such deceased nominator, for the purposes of
the action.
In the event that an application is made by sole nominee or the sole remaining
nominee of the deceased nominator to withdraw from the said capacity of
nominee, he shall notice the heirs of the deceased nominator and the Court can
appoint one of the consenting heirs of the deceased as a legal representative.
Section 81(9) provides that the failure to appoint a legal representative or to file
a memorandum nominating the nominees to represent the estate of the
deceased parties is not a ground to invalidate the proceeding in a partition
case. Any decree or order made under the law or the sale effected under the law
shall be deemed valid and effective despite the non-conformity of such
provisions and such order shall bind the legal heirs and representatives of such
deceased party or person.

32. xxxii
On the death of a party, who had failed to file memorandum as required by this
law, any person who claims to be a legal representative of the deceased, may
apply to Court by an ex-parte application, requesting that he be appointed as
the legal representative of the deceased party. If the Court is satisfied that such
applicant is a suitable person to be a legal representative of the deceased and
such appointment is necessary the Court may appoint the said person to be the
legal representative of such deceased party for the purposes of the action.
When such representative is so appointed, he is bound by all proceedings
which held up to the time of such appointment. In any event such application
for an appointment shall not be a ground for postponement of the trial. But
when reasonable grounds exist for postponement the Court is empowered to do
so in the interest of justice after recording reasons and ordering pre-payment of
cost. It is purely a matter of discretion vested in the Court and to be exercised
while considering the previous steps in the case.
After the death of a nominator, his heirs or one of his heirs may make an
application to Court to remove the legal representative appointed in the
memorandum and to appoint the other person who is next named in order of
preference in the memorandum filed by the deceased nominator. Similarly, he
or they may ask some other person to be appointed instead of the nominees
included in the memorandum. When such application is made, it is necessary
to make such nominees, respondents to the application. Section 81(12) states,
that the proceedings shall not be postponed or adjourned by reason of the
death of a party or person required to file a memorandum under this law.
As defined in section 81(14) the „Legal Representative‟ is a person who
represents the estate of a deceased party or person, for the purposes of the
action, by virtue of a nomination, or of an appointment by Court under section
81 of the Law.
In the case of Nallakaruppen Chettiar Vs. Hepponstall (52 N.L.R. 396)
Nagalingam J. held, that in a partition case, if the plaintiff dies while the action
is pending and his interest (e.g. fiduciary interest) in the land sought to be
partitioned terminates with his death, one of the defendants cannot be made a
party plaintiff for the purpose of continuing the action, when such defendant
does not claim any interests under or in succession to the deceased plaintiff.
Neither section 18 nor section 396 of the Civil Procedure Code permits such
procedure. The proper order to be made in the circumstances would be one of
abatement.

33. xxxiii
The Civil Procedure Code governs procedure to be followed in partition actions
and it is not competent to a Court to devise the procedure of its own unless
such a course becomes necessary and permissible under section 839.
In the case of Tikiri Vs. Lamaya (71 N.L.R. 125) Manicavasager J. held that,
where pending in appeal in a partition action, one of the plaintiff-appellants
dies, and no steps are taken to substitute a person to represent the deceased,
the Court must endeavour to compel the parties to bring the action to a
termination; it may dismiss the action only in the event of the parties, duly
represented, not prosecuting the appeal with due diligence. "
Registration of lis pendens
As it is required in section 6(1) of the Partition Law, that the plaintiff, together
with the plaint shall file or cause to be filed in Court a lis-pendens addressed to
the Registrar of Lands of the district in which the land sought to be partitioned
is situated. Where the land is situated in two or more registration districts, a
separate application shall be made for registration of the action as a lis-
pendens addressed to the Registrar of Lands of each of those districts. Such
applications to be submitted in triplicate substantially in the form prescribed
by the Registration of Documents Ordinance and shall contain blank space for
insertion of the number to be assigned to the action by the Court. Three sets of
applications shall be marked as „original‟, „duplicate‟ and „triplicate‟. No fee
shall be charged for registration of a lis-pendens in partition cases.
In the case of Kanagasabai Vs. Velupillai (54 N.L.R. 241) L.M.D de Silva J. held,
that;
“Failure to register duly a lis-pendens in a partition action as required by
section 12(1) of the Registration of Documents Ordinance deprives the decree
entered in the action of the „conclusive effect‟ which it would otherwise have
under section 9 of the Partition Ordinance by reason of the fact that it is a
decree not entered as „hereinbefore provided.”
Plaintiffs in appeal claimed title to the land in dispute by virtue of a final decree
entered in a partition action which, however, had been registered in the wrong
folio as a lis-pendens. The defendant, who was not a party to the partition
action, contended that the decree for partition was not „good and conclusive‟
against him within the meaning of section 9 of the Partition Ordinance because

34. xxxiv
the action had not been „duly registered‟ as a lis-pendens as required by section
12(1) of the Registration of Documents Ordinance.
The partition decree relied on by the plaintiffs did not possess the character of
a decree which was „good and conclusive against all persons whomsoever‟
within the meaning of section 9 of the Partition Ordinance.
The failure to register the lis-pendens in a partition action as required by
section 12(1) of the Registration of Documents Ordinance renders the decree
entered in the action void by reason of lack of jurisdiction in the Court which
entered it.
In Uberis Vs. Jayawardene (62 N.L.R. 217) Basnayake C.J. held that:-
“In a partition action, when a commission is issued to a surveyor to carry out a
preliminary survey it is the duty of the surveyor to adhere strictly to its terms
and to locate and survey the land he is commissioned to survey. It is not open
to him, even with the consent of the parties, to survey a portion only of the land
and submit the plan and report of such survey. If he is unable to locate the
land he is commissioned to survey, he should so report to the Court and ask.
for further instructions. An action in respect of one land cannot be converted
into an action in respect of another land by an amendment of pleadings.”
Pulle, J. held that, when a plaint in a partition action is amended so as to
substitute a new corpus for the one described in the first plaint, a fresh lis-
pendens would be necessary.
In Don Sadiris Vs. Heenhamy (68 N.L.R. 17) Sirimane J. decided that:-
“Where, in a partition action, a contesting defendant raises the point that the
lis-pendens has been registered in the wrong folio, the action should not be
dismissed merely on that ground. When it is found in the course of a trial that
the lis-pendens has been incorrectly registered, the proper procedure is to take
the case off the trial roll and offer the plaintiff an opportunity of correcting his
mistake, and thereafter, taking such steps as are necessary to bring the case to
trial.”
The Court also considered the judgment in the case of Seneviratne Vs.
Kanakaratne (39 N.L.R. 272) in which the Court held that there is no provision

35. xxxv
in the Registration of Documents Ordinance to reject a plaint on failure to
register lis-pendens.
In the case of Rasah Vs. Thambipillai (68 N.L.R. 145) „Sansoni C.J., T.S.
Fernando, J., and Abeyesundere J. (Sri Skanda Rajah J., and G.RA. Silva J.,
dissenting) held that where interlocutory decree has been entered in terms of
section 26 of the Partition Act, a person is not entitled to avail himself of the
provisions of section 48(3) in order to intervene subsequently and have the
decree set aside on the ground of failure to register the action duly as a lis-
pendens under the Registration of Documents Ordinance. The effect of section
70(1) of the Partition Act is that no intervention can be permitted at any stage
after interlocutory decree has been entered.‟
In the case of Nonnohamy Vs. Odiris Appu (68 N.L.R. 385) Sansoni C.J. held
that, no intervention can be allowed in a partition action after interlocutory
decree has been entered on the basis that the lis-pendens is not duly
registered.
In Dharmaratana Thero Vs. Siyadoris (1985 (2) S.L.R. 245) the plaintiff filed the
suit in 1950 seeking a partition of the land called „Udakumbura‟. This land was
surveyed on a commission. The 62nd defendant taking up the position that the
corpus sought to be partitioned was a portion of a larger land called
„Halgahakumbura‟ got the larger land surveyed in 1953 and again in 1966.
There were 275 parties in the case and it eventually came up for trial on
11.1.1978 on which date the 62nd defendant moved to be allowed to register
the lis-pendens in respect of the larger land. This was objected to
by all the parties. The Court by its order refused the application. After an
unsuccessful earlier attempt to obtain leave to appeal from this order, the 62nd
defendant moved the Court of Appeal in revision.
G.P.S. de Silva J. held that:-
1. “it is on the motion of the party defendant interested in having the larger
land partitioned that the duty of the Court arises to specify in terms of section
19(2)(b) of the Partition Law No. 21 of 1977 the party by whom and the date on
or before which the application for the registration of the action as a lis-
pendens in respect of the larger, land should be filed. The petitioner filed his
amended statement in May 1956 and his present application made on
11.1.1978 when the case for trial was belated.

36. xxxvi
2. the petitioner could still participate in the trial. He could pursue his claim
in his statement of claim for interests in “Udakumbura” or in the alternative
seek a dismissal of the action on the basis that the plaintiff was seeking to
partition only a portion of a larger land.”
In Sopaya Silva Vs. Magilin Silva (1989 (2) S.L.R. 105) the plaintiff filed plaint
to partition a land of 8A. 3R. 29P and lis-pendens was registered in the folios
where the deeds for this land were registered. When the commission was taken
out the Surveyor surveyed an extent of 11 A.1R. P33. No contest was raised
about the registration of the lis-pendens. At the trial the contest was resolved
and evidence led accordingly. The District Judge dismissed the case holding
that the lis-pendens was wrongly registered.
S.N. Silva J. held that:-
“It was not open to the District Judge to dismiss the case on the point of wrong
registration of the lis-pendens - a point on which there was no contest and no
argument was heard. It is a violation of natural justice. The lis-pendens being
registered in the folios were the deeds of the land described in the plaint were
registered was correctly registered.
District Judge should have permit the plaintiffs to continue the action to
partition the larger land as depicted in the preliminary survey. This course of
action involves the amendment of the plaint and the taking of consequential
steps including the registration of a fresh lis-pendens. ”
The Court considered the judgment in Brampy Appuhamy Vs. Menis
Appuhamy (60 N.L.R. 337) in which it was held that the Court acted wrongly in
proceeding with a partition action where the land surveyed was substantially
smaller than the lands described in the plaint.
Rejection of the plaint
If a plaintiff has failed to comply with the provisions of section 4, 5 and 6 of the
Partition Law the Court is empowered to return the plaint to the plaintiff so
that he may within the time fixed by the Court comply with those requirements
or reject the plaint under the provision of section 7 of the Partition Law. In any
event the right of the Court to reject a plaint on the ground set out in section
46 of the Civil Procedure Code is not affected by the said provisions.

37. xxxvii
In Vethavanam Vs. Retnam (60 N.L.R. 20) K.D de Silva Judge decided that once
a plaint is accepted and it is not ex-facie defective, the Court has no power to
reject it subsequently under section 7, read with section 4 of the Partition Act
No. 16 of 1951.
Dismissal of the plaint.
When a plaint in a partition action is accepted, the Court shall forthwith
forward a lis-pendens to the Registrar of Lands of each Land Registry in which
the action is to be registered. Section 8(1) of the Law requires to insert the case
number in each copy of the application for registration and to transmit such
documents within 2 weeks from the date of acceptance of the plaint. The Court
also shall fix a date not later than 7 weeks from the date of acceptance of the
plaint, for the return of the registered lis-pendens by the Registrar of Lands.
The right to extend the time period for such return is recognized by the proviso
to section 8(l)(cc). The Court is also obliged to fix a date not later than 7 weeks
from the date of acceptance of the plaint for deposit of the estimated cost of the
prelirtiinary survey by the plaintiff. Such costs are to be determined in
considering the prescribed rates by regulations.
If the plaintiff fails to deposit such cost before the date or extended date, the
Court is empowered to dismiss the plaintiffs‟ action under section 9 of the
Partition Law.
Section 10(1) of the Law makes provisions that if the cost deposited is less than
the actual cost so determined, the amount of the difference shall be deposited
in the Court by the plaintiff. If the Plaintiff fails to deposit such amount it is
lawful for the Court to direct the recovery of the amount so determined
considering it as a decree in favour of the Surveyor against the party o; Jered to
pay that amount.
Return of Lis pendens after registration
Section 11 of the Partition Law requires that when Registrar of Lands receives a
lis-pendens transmitted by a Court under section 8 is obliged to register the
same and to return to Court triplicate of the application duly endorsed in the
manner prescribed by the Registration of Documents Ordinance on or before
the date fixed by the Court. A copy of such lis-pendens to be sent to the
registered Attorney-at-Law of the plaintiff or directly to the plaintiff when there
is no such registered Attorney.

38. xxxvii
i
DECLARATION BY THE PLAINTIFF TO BE MADE UNDER SECTION 12
Section 12 of the Law further requires that the registered Attorney-at-Law of
the plaintiff to file a declaration that he personally inspected the entries in the
register maintained by the Land Registrar after the registration of the
lis-pendens. The plaintiff in a partition case together with a declaration referred
to in subsection 1 of section 12, shall file or caused to be filed in Courts.
SOMAWATHIE Vs MADAWELA AND OTHERS 1983 Sri Lanka Law Reports
Volume 2 , Page 15 (SUPREME COURT) dealt with the question of the finality
of interlocutory and final decrees and the revisionary power of court to set aside
such a decree when there is 'fundamental vice' that transcends the bounds of
procedural error. Declaration ‑ Section 12(1) and 48 of Partition Act and
interpretation of the maxim Expressio unius exclusio alterius was also
considered in the judgment. In a historical pronouncement the Supreme Court
held that When the boundaries of a purportedly divided block in a deed are
insufficient for an exact and precise demarcation the deed conveys only
undivided interests and When there is no proper compliance with Section 12(1)
of the Partition Law in the matter of the declaration stipulated to be filed under
that section and no notice has been served on the claimants before the
Surveyor as required by section 22(l)(a) of the Act then the Appeal Court can
intervene by way of revision, to prevent a miscarriage of justice. Although
section 48 invests interlocutory and final decrees entered under the Partition
Act with finality the revisionary powers of the Appeal Court are left unaffected.
The position is the same under the Partition Law. The powers of revision and
restitutio in integrum of the Appeal Court have survived all the legislation that
has been enacted up to date.
When the language used in a statute has been interpreted by the Courts and
the legislature repeats the same or similar language it may be presumed
(though not a canon of construction in the absence of indications to the
contrary) that the legislature uses such language in the meaning the courts
have given. The maxim expressio unius exclusio alterius is not a maxim of
universal application and must be applied with caution. The exclusio is often
the result of inadvertence or accident and must not be applied where having
regard to the subject matter it would lead to inconsistency or accident. The
words expressed could be illustrative only or used out of abundant caution.

39. xxxix
In the judgment reported in 2002 - Volume 3 , Page No - 169 - UMMA Vs
ZUBAIR AND ANOTHER - CA- multitudes of irregularities pertaining to the ID
were considered. it was contended that in the original court summons/notice
not issued, Lis pendens not correctly registered and there was non-compliance
with section 12. The Court of appeal said that
(1) Section 48 (4) could not bar a court from holding that in the event summons
had not been even issued from coming to a finding that such non-issue was
improper or that the court had no jurisdiction to proceed. Section 48 (4) could
not suppress the rights of parties to claim their due rights in partition actions
which are decrees in rem.
(2) There has also been blatant disregard to section 14 (1) and deliberate non-
compliance with section 12; even the registering of the lis pendens is not in the
correct folio.
(3) Notwithstanding section 48, the District Court is not precluded from giving
effect to an unlawfully obtained interlocutory decree causing a grave
miscarriage of justice.
It observed that the learned District Judge was correct in his finding that non-
compliance of section 12 of the Partition Act renders the proceedings void ab
initio. The learned District Judge appears to have relied on a number of
authorities particularly, Pelis Vs Silva 60 NLR 289, Iththapana v. Hemawathie
1981 1 SLR 476), Perera v. Commissioner of National Housing 77 NLR 361,
Siriwardena v. Jausu umma 59 NLR 400, to come to a finding that the failure
to notice the parties and even to register the lis pendens in the proper folio in
not in accordance with the law and that notwithstanding section 48 referred to
above that a District Judge is not precluded from giving effect to an unlawfully
obtained interlocutory decree causing a grave miscarriage of justice.
(a) if the aforesaid declaration discloses any person who is not mentioned in
the plaint as a party to the action but who should be made such a party under
section 5, an amended plaint including therein that person as a party to the
action, which amended plaint shall be deemed for all purposes to be the plaint
in the action;
(b) as many summonses as there are defendants, each such summons being
summons substantially in the form set out in the second schedule to this Law

40. xl
and containing the name and address of the defendant on whom that summons
is to be served;
(c) if the language of any defendant is not the language of the Court, a
translation of the summons in that language;
(d) as many copies of the plaint as there are defendants, with a translation
thereof in the language of each defendant whose language is not the language
of the Court; or, with the leave of the Court; where compliance with this
requirement involves an expense which appears to the Court excessive and
unnecessary in the circumstances, a concise statement of the relevant
paragraphs of the plaint relating to each defendant with translations thereof in
the language of any defendant whose language is not the language of the Court;
(e) one copy of the plaint certified by the registered Attorney as a true copy,
such copy being the copy to be attached to the commission issued to the
Surveyor who is to make preliminary survey of the land to which the action
relates;
(f) as many copies of a notice substantially in the form set out in the second
schedule to this Law as there are lands to which the action relates together
with translations thereof in the language of any defendant whose language is
not the language of the Court;
(g) such number of copies of the aforesaid notice and of each translation
thereof referred to in paragraph (f) of this subsection as would enable the
transmission of one copy of such notice and one copy of each such translation
to the Grama Niladhari of the division or of each of the divisions in which the
land or each of the lands to which the action relates is situate;
(h) a precept to the Fiscal substantially in the form set out in the second
schedule to this Law.
If the plaintiff without sufficient cause fails to comply with the above mentioned
provisions the Court is empowered to dismiss the plaintiffs action under section
12(3) of the Law.
Issue and service of summons and publication
When the Court is satisfied that a partition action has been registered as a
lis-pendens under the Registration of Documents Ordinance and the estimated

41. xli
cost of the preliminary survey of the land had been deposited the Court shall
make orders to issue summons on the defendants under section 13(1) of the
Law. Further the notices and copies of the translations of the notices filed in
Court under paragraphs 12(2)(b), (c), (d), (f) and (g) also to be sent by registered
post to the defendants and respective Grama Niladharis.
When the Court makes orders to issue summons the Court shall appoint a date
on or before which the defendants are required to file their statements of claims
if any, and to comply with the other requirements of the summons.
When such dates to be fixed, the Court shall take into consideration the time
ordinarily required for the due service of summons. If the language of the
defendant is not the language of the Court, there shall be attached to the
summons a translation of the summons and the plaint.
In view of the applicability of section 14 of the Law the Court shall follow the
provisions of the Civil Procedure Code relating to the service of summons in a
partition case.
Section 15(1) of the Law requires sending a copy of the notice and a copy of the
translation filed under section 12(2)
(g) of the law to the Grama Niladhari of the division for the purpose of
exhibition in a conspicuous position at his office for a period of not less than 30
days. After such notice is exhibited the Grama Niladhari shall forward a report
to the Court substantially in the form set out in the second schedule.
Section 13(3) further requires that the fiscal shall exhibit the notice transmitted
to him under section 13 (1) in a conspicuous position on the land to which the
notice relates. The contents of such notice to be orally proclaimed, after beating
of tom-tom on such land and at some public place in the neighbourhood of
such land or of each such land or in the village in which such land is situated.
The cost of such proclamation shall be borne by the plaintiff in the first
instance and shall be recoverable “pro-rata. ”
In terms of section 77 of the Partition Law the relevant provisions of the Civil
Procedure Code shall apply in relation to the execution or service of writs,
warrants and other processes of the Court in a partition action.
In the case of Caldera Vs. Santiagopillai (22 N.L.R. 155) After several
unsuccessful attempts to serve summons on the defendant in a partition, case

42. xlii
the Court on an application of the plaintiff, made an order for substituted
service of summons by affixing of the summons to the land. There was a
watcher on the land who was in charge of the defendants interests. After the
final decree was entered the defendant came to know the decree and applied to
the District Court to set the decree aside. The Court granted the application,
holding that there had been no effective service of summons. *
When the matter was taken up in appeal to the Supreme Court, Bertram C.J
held that, the service of summons was not in order and that the Court had
jurisdiction to make the order it made. Under section 3 of the Partition
Ordinance, if the defendant cannot be found, summons will have to be served
upon the person in physical occupation of the property and it is only when no
such person can be found that the Court can prescribe other modes of service.
The order was made ex-parte behind the back of the defendant. A person
seeking to set aside such an order must first apply to the Court which made it,
which is always competent to set aside an ex-parte order of this description.
In the case of Don Lewis Vs. Dissanayake (70 N.L.R. 8) the application was
made for revision or restitutio in integrum and the petitioner sought to have the
interlocutory decree entered in a partition action set aside. The main ground
urged was that although the petitioner was disclosed as a claimant in the
Surveyor‟s report, no notice or summons was thereafter served on him as
required by section 22 of the Partition Act. The 8th defendant-respondent also
supported the application on the ground that, although he was named as 8th
defendant in the plaint, he never received any summons or notice.
The facts showed that the petitioner had tried to pass off as, and usurp the
place of, the 8th defendant-respondent and that, long before the interlocutory
decree was entered, he could have sought to have himself added as a party
instead of taking the inexplicable course he did. Further, even when his
application to intervene was dismissed by District Court, the petitioner did
nothing for 8 months.
Tennakoon J. held that it was not the function of the Supreme Court, in the
exercise of the jurisdiction now invoked, to relieve parties of the consequences
of their own folly, negligence and laches.

43. xliii
The maxim vigilantibus, non dormientibus, jura subveniunt13 provided a
sufficient answer to the petitioner‟s application. Further, the petitioner did not
display the honesty and frankness expected of a person seeking the
extraordinary powers of the Court.
It was further held that, the right of a party in a partition action to be served
summons may be lost by acquiescence on his part. In the present case the 8th
defendant had not only been allotted his due share but had also failed to take
steps for nearly one year to have the interlocutory decree set aside after he
became aware of it. He was not entitled, therefore, to any relief.
Preliminary survey
As it is contemplated in section 16 (1) of the Law where the Court orders the
service of summons on the defendants, the Court shall forthwith order the
issue of a commission to a Surveyor directing him to survey the land relating to
the action. The returnable date of such commission shall be a date earlier than
30 days prior to the summons returnable date. The Court is also empowered to
extend the time period on an application made by the Commissioner and the
Court shall record the reasons for such extensions. In any event such
extensions shall not exceed 60 days. The commission to be issued shall be
substantially in the form set out in the second schedule and a copy of the
plaint certified as a true copy by the Registered Attorney for the plaintiff shall
be attached to the plaint. The Court is also empowered to issue commissions at
the instance of any party to the action authorizing the Surveyor to survey any
larger or smaller land, than the land pointed out by the plaintiff. In allowing
such commissions, the Court shall be satisfied that it is necessary for the due
adjudication of the action.
Where the Court issues a commission to a Surveyor, the Court also may order
to issue such number of copies of notices substantially in the form set out in
the second schedule to be served on any person (not being a party to the action)
or his agent who at the time of the survey preferred any claim to the land.
13
Law will help only those who are vigilant. Law will not assist those who are careless of
his/her right. In order to claim one’s right, s/he must be watchful of his/her right. Only
those persons, who are watchful and careful of using his/her rights, are entitled to the
benefits of law. Law confers rights on persons who are vigilant of their rights. Usually, law
prescribes statutory limitations for enforcing one’s relief against another. One cannot
institute a suit after the prescribed statutory period. A person who has kept mum during
the statutory period cannot claim for the enforcement of right after the statutory limitation.