PARTITION LAW

Arrangement of Sections

1. Short title.

INSTITUTION OF PARTITION ACTION AND INCIDENTAL PROCEDURE

2. Institution of partition action.

3. Appropriate court.

4. Requisites of plaint.

5. Necessary Parties.

6. Application for registration of action as a lis pendens to be filed with plaint.

7. Failure to comply with provisions of section 4, 5 or 6.

8. Procedure on acceptance of the plaint.

9. Failure to deposit estimated costs of preliminary survey.

10. Determination of actual costs of preliminary survey.

11. Registrar of Lands to report to court registration of partition action as a lis pendens.

12. Declaration by Attorney-at-law and papers to be filed with such declaration.

ISSUE AND SERVICE OF SUMMONS AND PUBLICATION

13. Issue of summons.

14. Service of summons.

15. Public notice of institution of partition action.

PRELIMINARY SURVEY

16. Commission to survey land.

17. Survey.

18. Return to Surveyors Commission.

PROCEDURE AFTER SERVICE OF SUMMONS

19. Statements of claims; disclosure of mortgages and leases, disputes as to corpus.

20. Notice of partition action to persons disclosed.

21. Issue of copies of plaint and statements of claims to parties.

22. Failure to Produce Segments of title at trial.

23. List of documents.

TRIAL

24. Calling case to fix date of trial.

25. Trial.

26. Interlocutory decree.

ISSUE OF COMMISSION FOR DIVISION OF LAND INTO LOTS OR FOR SALE OR PARTITION

27. Commission for division of land into lots, or for sale or partition.

28. Form of Commission.

29. Costs of Commission.

30. Execution of Commission for partition.

31. Scheme of Partition.

32. Return to Commission.

33. Manner of partition.

34. Compensation and owelty.

35. Date for consideration of scheme of partition.

36. Final decree of Partition.

36A. Appeal.

COMMISSION FOR DIVISION OF LAND INTO LOTS FOR SALE

37. Consideration of scheme for division of land into lots.

38. Valuation of land.

39. Conditions of sale.

40. Notice of sale.

41. Sale.

42. Return to court.

43. Deposit of purchase money.

44. Objections to sale.

45. Confirmation of sale.

45A. Appeal.

46. Certificate of sale.

47. Distribution and withdrawal of money in court.

SPECIAL PROVISIONS RELATING TO DECREES

48. Finality of interlocutory decrees of partition.

49. Action for damages by person who is not a party to partition action.

50. Lease or mortgage of undivided share.

51. Registration of interlocutory decree, Final decree and certificate of sale.

52. Delivery of possession of land to parties and purchasers.

52A. Restoration of Possession.

53. Power of court to enforce its decrees and orders and to deal with offences of contempt of court.

SPECIAL CASES

54. Rights of person owning plantation apart from soil.

55. Partition of land belonging to partnership.

56. Executors and administrators.

COSTS

57. Recoverable costs.

58. Costs recoverable by Attorney-at-law.

59. Costs of contest.

60. Costs of proving title of defaulting party.

61. One set of costs for parties jointly interested.

62. Security for costs for unreasonable delay.

63. Costs under sections 57 and 60 to be a charge on share of party.

64. Costs in cases not expressly provided for.

65. Default in paying costs and charges impervious action under this Law.

MISCELLANEOUS

66. Sale, lease or mortgage pendente lite is void.

67. Appeals.

68. Proof of deeds.

69. Addition of Parties.

70. Non-prosecution of partition action.

71. Penalty for dishonest non-disclosure of interested persons.

72. Penalty for false return by Surveyor.

73. List of Surveyors.

74. Exemption from stamp duty.

75. Dismissal of partition action.

76. Power of court to postpone, adjourn or to give extensions of time.

77. Service of process.

78. Powers and duties of Fiscal.

79. Casus omissus.

80. Forms.

81. Memorandum nominating representative.

82. Transitional provisions.

82A. Regulations.

83. Interpretation.

SCHEDULE

21 of 1977,

5 of 1981,

6 of 1987,

32 of 1987,

17 of 1997.

A LAW to provide for the partition and sale of land held in common, and for matters connected therewith or incidental thereto.

[Date of Commencement: 15th December, 1977]

1. Short title.

This Law may be cited as the Partition Law.

INSTITUTION OF PARTITION ACTION AND INCIDENTAL PROCEDURE

2. Institution of partition action.

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.

[S 2 am by s 2 of Act 17 of 1997.]

3. Appropriate court.

(1) 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.

(2) Where it is alleged to be uncertain within 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.

4. Requisites of plaint.

(1) In addition to the particulars required to be stated in a plaint by the Civil Procedure Code, every plaint presented to a court for the purpose of instituting a partition action shall contain the following particulars—

(a) the name, if any, and the extent and value of the land to which the action relates;

(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 claim 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.

[S 4 renumbered as s 4(1) by s 3 of Act 17 of 1997.]

(2) There shall be appended to every plaint presented to a court for the purpose of instituting a partition action, a memorandum substantially in the form set out in the Second Schedule to this Law, nominating in accordance with section 81, a person to be the legal representative of the plaintiff for the purposes of the action, in the event of his death pending the final determination of the action.

[S 4(2) ins by s 3 of Act 17 of 1997.]

5. Necessary Parties.

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

(b) 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.

6. Application for registration of action as a lis pendens to be filed with plaint.

(1) The plaintiff in a partition action shall file or cause to be filed in court with the plaint—

(a) where the land to which the action relates is situated in one registration district, an application for registration of the action as a lis pendens addressed to the Registrar of Lands of that district, or

(b) where the land is situated in two or more registration districts, a separate application for registration of the action as an lis pendens addressed to the Registrar of Lands of each of those districts.

(2) The application or each of the applications referred to in subsection (1) of this section shall be in triplicate and marked "original”, "duplicate”, and "triplicate” and substantially in the form prescribed by the Registration of Documents Ordinance and shall contain a blank space for the insertion of the number to be assigned to the action by the court.

[S 6(2) am by s 4 of Act 17 of 1997.]

(3) Notwithstanding anything to the contrary in the Registration of Documents Ordinance or in any regulation made thereunder, no fee shall be charged for the registration of a partition action as a lis pendens under that Ordinance.

7. Failure to comply with provisions of section 4, 5 or 6.

Where the plaintiff in a partition action fails to comply with the requirements of section 4, section 5 or section 6, the court may—

(a) return the plaint so that the plaintiff may, then and there or within such time as may be fixed by the court, comply with those requirements; or

(b) reject the plaint:

Provided that nothing herein contained shall affect the right of the court to reject the plaint on any ground specified in section 46 of the Civil Procedure Code.

8. Procedure on acceptance of the plaint.

(1) Where the plaint in a partition action, is accepted, the court shall forthwith—

(a) cause to be inserted in each copy of the application for the registration of the action as a lis pendens, a reference to the number assigned by the court to the action;

(b) cause to be transmitted forthwith, and in any event not later than two weeks from the date of acceptance of the plaint, the application in triplicate to the Registrar of Lands of each Land Registry in which the action is to be registered as a lis pendens;

(c) fix a date, being a date not later than seven weeks from the date of acceptance of the plaint, for the return of the registered lis pendens, by the Registrar of Lands:

Provided that the Court may, if in its opinion the circumstances of the case so require, extend the date for the return of the lis pendens after registration;

(d) fix a date being a date not later than seven weeks from the date of acceptance of the plaint, on or before which the plaintiff shall deposit in Court such estimated costs of the preliminary survey of the land to which the action relates as may be determined by Court.

In estimating the costs of such preliminary survey, the court shall have regard to such rates as may be prescribed by regulations.

[S 8 subs by s 5 of Act 17 of 1997.]

9. Failure to deposit estimated costs of preliminary survey.

Where the plaintiff in a partition action fails to deposit, before the date or extended date fixed for the purpose, such estimated costs of the preliminary survey as are determined by the court under section 8, the court may dismiss such action.

10. Determination of actual costs of preliminary survey.

(1) After the preliminary survey of the land to which the partition action relates is made, the court shall determine the actual costs of such survey in accordance with the rates prescribed under section 8 and if the actual costs so determined are more than the estimated costs determined under section 8, shall make order specifying the party by whom, and the date on or before which, the amount of the difference between such actual costs and such estimated costs shall be deposited in court. The court may, for sufficient cause, make a further order or orders extending the time for the deposit of such amount.

[S 10(1) am by s 3 of Act 5 of 1981.]

(2) If the amount due to a Surveyor as the costs of the survey of a land to which a partition action relates is not paid as ordered by the court, it shall be lawful for the court to direct the recovery thereof in the same action as though the order for the payment of that amount were a decree in favour of that Surveyor against the party ordered to pay that amount.

11. Registrar of Lands to report to court registration of partition action as a lis pendens.

A Registrar of Lands to whom an application for the registration of a partition action as a lis pendens has been transmitted by a court under section 8 shall, upon registration of the action as a lis pendens, return to the court the 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 for the return of such triplicate, and shall cause a copy thereof to be sent by registered post to the Registered Attorney of the plaintiff, or where there is no such Registered Attorney, to the plaintiff.

[S 11 am by s 6 of Act 17 of 1997.]

12. Declaration by Attorney-at-law and papers to be filed with such declaration.

(1) After a partition action is registered as a lis pendens under the Registration of Documents Ordinance and after the return of the triplicate referred to in section 11, the plaintiff in the action shall file or cause to be filed in court a declaration under the hand of an Attorney-at-law certifying that all such entries in the register maintained under that Ordinance as relate to the land constituting the subject-matter of the action have been personally inspected by that Attorney-at-law after the registration of the action as a lis pendens, and containing a statement of the name of every person found upon the inspection of those entries to be a person whom the plaintiff is required by section 5 to include in the plaint as a party to the action and also, if an address of that person is registered in the aforesaid register, that address.

[S 12(1) am by s 7 of Act 17 of 1997.]

(2) The plaintiff in a partition action shall, together with the declaration referred to in subsection (1) of this section, file or cause to be filed in court—

(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 a summons substantially in the form set out in the Second Schedule to this Law 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 the 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 Seva 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.

(3) If the plaintiff without sufficient cause fails to comply with the provisions of the foregoing subsections of this section, the court may dismiss the action.

ISSUE AND SERVICE OF SUMMONS AND PUBLICATION

13. Issue of summons.

(1) Where the Court is satisfied that a partition action has been registered as a lis pendens under the Registration of Documents Ordinance, that the estimated costs of the preliminary survey of the land to which the action relates have been deposited in Court and that the plaintiff in the action has complied with the provisions of section 12, the Court shall order that such summonses, translations of summonses, copies and translations of the plaint or the concise statements, as the case may be, copies of the notices and copies of the translations of the notices filed in court under paragraphs (b), (c), (d), (f) and (g) of subsection (2) of section 12 be sent by registered post to the defendant and the respective Grama Niladharis; and that copies of the notice filed under paragraph (f) of subsection (2) of section 12, together with copies of translations thereof be transmitted to the Fiscal for exhibition and proclamation as provided for in subsection (3) of section 15;

[S 13(1) subs by s 8 of Act 17 of 1997.]

(2) When making an order under subsection (1) of this section, 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. The date so appointed shall be fixed with reasonable regard to the time ordinarily required for the due service of the summons and shall be a date not earlier than thirty days after the initial date fixed for the return to the Commission for preliminary survey.

(3) The Registrar or any other officer of the court shall insert the date appointed by the court under subsection (2) of this section in such summonses, translations of summonses, copies of the notice and copies of the translations of the notice as are filed in court under subsection (2) of section 12, shall sign them and cause them to be sent by registered post.

[S 13(3) am by s 8 of Act 17 of 1997.]

(4) If the language of any defendant is not the language of the court there shall be attached to the summons sent by registered post to that defendant a translation of the summons and a translation of the plaint or concise statement, as the case may be, in the language of that defendant.

[S 13(4) am by s 8 of Act 17 of 1997.]

14. Service of summons.

The provisions of the Civil Procedure Code relating to the service of summons shall apply to the service of summons in a partition action.

15. Public notice of institution of partition action.

(1) Where the court orders the service of summons on the defendants in a partition action, the court shall order that a copy of the notice and a copy of each translation thereof filed in court under paragraph (g) of subsection (2) of section 12 be sent by registered post 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 situated.

[S 15(1) am by s 9 of Act 17 of 1997.]

(2) Every Grama Seva Niladhari to whom any copy of a notice and any copy of a translation thereof are sent by registered post under subsection (1) of this section shall cause such copies to be exhibited in a conspicuous position at his office for a period of not less than thirty days, and shall forward to court a report to that effect substantially in the form set out in the Second Schedule to this Law.

[S 15(2) am by s 9 of Act 17 of 1997.]

(3) The Fiscal shall cause—

(a) a copy of the notice transmitted to him under subsection (1) of section 13 to be exhibited in a conspicuous position on the land or on each of the lands to which the notice relates, and

[S 15(3)(a) am by s 9 of Act 17 of 1997.]

(b) the contents of the notice to be orally proclaimed, after beat of tom-tom, on such land or on each 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 or each such land is situated. The costs of such proclamation shall be borne by the plaintiff in the first instance and shall be recoverable "pro-rata”.

PRELIMINARY SURVEY

16. Commission to survey land.

(1) Where the court orders the service of summonses on the defendants in a partition action, the court shall forthwith order the issue of a Commission to a Surveyor directing him to survey the land to which the action relates and to make due return to his Commission on a date to be fixed therein, which date shall be a date earlier than thirty days prior to the date specified in the summons:

[S 16(1) am by s 10 of Act 17 of 1997.]

Provided that the court may on application made by the Commissioner and for reasons to be recorded, extend, from time to time, the date fixed in the Commission for the return thereof, so however, that each such extension shall not exceed sixty days.

[S 16(1) proviso subs by s 10 of Act 17 of 1997.]

(2) The Commission issued to a Surveyor under subsection (1) of this section shall be substantially in the form set out in the Second Schedule to this Law and shall have attached thereto a copy of the plaint certified as a true copy by the Registered Attorney for the plaintiff. The court may, on such terms as to costs of survey or otherwise, issue a Commission at the instance of any party to the action, authorising the Surveyor to survey any larger or smaller land than that pointed out by the plaintiff where such party claims that such survey is necessary for the adjudication of the action.

(3) Where the court orders the issue of a Commission to a Surveyor under subsection (1) of this section, it shall in addition order the issue to such Surveyor of such number of copies of a notice substantially in the form set out in the Second Schedule to this Law together with the translations thereof, as the court may deem sufficient in the circumstances, to be served on any person (not being a party to the action) or his agent who at the time of the survey may prefer any claim to the land to which the action relates.

[S 16(3) ins by s 2 of Act 32 of 1987.]

(4) The Surveyor shall serve the copy of the notice referred to in subsection (3) of this section on any person (not being a party to the action) or his agent who at the time of the survey prefers any claim, by personally tendering to such person or his agent such copy together with the translation thereof in the language of such person or his agent whose language is not the language of the court.

[S 16(4) ins by s 2 of Act 32 of 1987.]

(5) The Surveyor shall obtain from the person on whom a notice is served under subsection (4) of this section an acknowledgement of the receipt of such notice by signature or thumb impression of such person or his agent and the date of such service.

[S 16(5) ins by s 2 of Act 32 of 1987.]

(6) Where any person on whom a notice is served under subsection (4) of this section is subsequently added as a defendant to the action, the notice served on such person or his agent by the Surveyor under subsection (4) of this section shall be deemed to be a summons served on such person in such action under the provisions of this Law, and no further service of summons on such person shall be necessary.

[S 16(6) ins by s 2 of Act 32 of 1987.]

17. Survey.

(1) On receipt of his Commission, the Surveyor shall fix a date for commencing the survey of the land referred to therein and shall, not less than fourteen days before that date, issue notice in writing to all the parties named in the plaint that he proposes to commence the survey of the land on that date. Such notice to any party shall be sent to him by registered post to the address stated in the plaint.

(2) In addition to the written notice required to be issued to the parties under subsection (1) of this section, the Surveyor shall, not less than fourteen days before the date fixed by him for commencing the survey, cause the fact that he will commence the survey on that date to be orally proclaimed, after beat of tom-tom, on the land to be surveyed.

18. Return to Surveyors Commission.

(1) The Surveyor shall duly execute the Commission issued to him and, in doing so shall, where any boundary of the land surveyed by him is undefined, demarcate that boundary on the ground by means of such boundary marks as are not easily removed or destroyed and shall, on or before the date fixed for the purpose, make due return thereto and shall transmit to the court—

(a) a report, in duplicate, substantially in the form set out in the Second Schedule to this Law, verified by affidavit stating—

[S 18(1)(a) am by s 11 of Act 17 of 1997.]

(i) the dates on which notice of survey was issued to the parties;

(ii) the nature of the land surveyed and of any buildings, walls, wells, trees, plantations, fences and other improvements thereon;

(iii) whether or not the land surveyed by him is in his opinion substantially the same as the land sought to be partitioned as described in the schedule to the plaint;

(iv) the parties to the action who were present at the survey, and the name and address of any person (not being a party to the action) who, at the time of the survey, preferred any claim, the nature of such claim and the date of service of the notice referred to in subsection (3) of section 16;

[S 18(1)(a)(iv) am by s 3 of Act 32 of 1987.]

(v) the persons, if any, who pointed out the land to be surveyed;

(vi) the result of his investigation of any particular fact or matter specifically referred to in the terms of his Commission;

(vii) the existing means of access to the land from the nearest public road; and

(viii) any fact, matter or circumstance relating to his survey or to the land surveyed which, in his opinion, may be necessary for, or prove of assistance in, the adjudication of the partition action;

(b) a plan, in duplicate, of the land surveyed, verified by affidavit showing—

[S 18(1)(b) am by s 11 of Act 17 of 1997.]

(i) the boundaries of any divisions of the land subsisting at the time of his survey, such divisions being indicated by appropriate letters or numerals;

(ii) the boundaries of any land belonging to the State which may fall within the land surveyed by him;

(iii) the locations of all buildings, walls and wells, such locations being indicated by appropriate letters or numerals;

(iv) the trace or course of any road, path or stream within the boundaries of the land; and

(v) any other physical feature of or on the land which, in his opinion, may be necessary for, or prove of assistance in, the adjudication of the partition, action; and

(c) a certified copy of his field notes;

(d) the acknowledgement of the receipt of the notice served on any person referred to in subsection (4) of section 16, together with the remaining copies and translations of such notice;

[S 18(1)(d) ins by s 3 of Act 32 of 1987.]

(2) The documents referred to in paragraphs (a), (b) and (c) of subsection (1) of this section may, without further proof, be used as evidence of the facts stated or appearing therein at any stage of the partition action:

Provided that the court shall, on the application of any party to the action and on such terms as may be determined by the court, order that the Surveyor shall be summoned and examined orally on any point or matter arising on, or in connection with, any such document or any statement of fact therein or any relevant fact which is alleged by any party to have been omitted therefrom.

(3) —

(a) Notwithstanding anything in subsection (2) of this section, the court, either of its own motion or on the application of a party to the action, may, before using the copy of the Surveyor's field notes and the plan, cause them to be verified and to be certified as correct or, where such field notes and plan are incorrect, cause fresh field notes and a fresh plan to be made by the Surveyor-General or by any officer of his department authorised by him in that behalf, and may for that purpose issue a Commission to the Surveyor-General.

(b) As soon as may be after the receipt by the Surveyor-General of any Commission issued under this subsection, the Surveyor-General or any officer of his department authorised by him in that behalf shall verify the field notes and the plan received with the Commission and shall, where they are correct, certify them to be correct or, where they are incorrect, make fresh field notes and a fresh plan, and the Surveyor-General shall make a due return to the Commission with the field notes and the plan so certified or with the fresh field notes and the fresh plan, in duplicate.

[S 18(3)(b) am by s 11 of Act 17 of 1997.]

(c) The field notes and the plan certified as correct under paragraph (b) of this subsection, or the fresh field notes and the fresh plan, in duplicate furnished by the Surveyor- General under that paragraph, shall be used for the purposes of subsection (2) of this section at all stages of the action subsequent to the receipt by the court of the return made by the Surveyor-General under that paragraph.

(d) The Surveyor-General, or any officer of his department authorised by him in that behalf, shall, for the purposes of the execution of any Commission issued under this subsection, have power to inspect or survey the land after giving not less than seven days' notice to the parties to the action of his intention so to do.

(e) The Surveyor-General shall not be entitled to the reimbursement of the costs incurred in the execution of a Commission issued to him under this subsection unless the court, upon the amount of such costs being certified to the court by the Surveyor-General, makes order specifying the party by whom, and the date on or before which, that amount shall be deposited in court.

(f) The party depositing the amount of the Surveyor-General's costs shall be given credit therefor in such manner as the court may direct.

(g) If the costs due to the Surveyor-General are not deposited as ordered by the court, it shall be lawful for the court to direct the recovery thereof in the same action as though the order for the payment of such costs were a decree in favour of the State against the party ordered to pay such costs.

PROCEDURE AFTER SERVICE OF SUMMONS

19. Statements of claims; disclosure of mortgages and leases, disputes as to corpus.

(1) On or before the date specified in the summons issued in a partition action or on or before such later date as the court may fix for the purpose—

(a) any defendant in the action may file or cause to be filed in court a statement of claim setting out the nature and extent of his right, share or interest to, of or in the land to which the action relates and shall, if he disputes any averment in the plain relating to the devolution of title, file or cause to be filed in court, together with his statement of claim, a pedigree showing the devolution of title;

(b) any party to the action whose right, share or interest to, of or in the land is mortgaged or leased by an instrument registered under the Registration of Documents Ordinance shall disclose or cause to be disclosed to the court the existence of the mortgage or lease and the name and address of the mortgagee or lessee; and

(c) every defendant in the action shall disclose or cause to be disclosed to the court the name and address of every person, not being a party to the action, who to his knowledge has any right, share or interest to, of or in the land.

(d) every defendant in the action shall file or cause to be filed, in Court, a memorandum, substantially in the form set out in the Second Schedule to this Law, nominating in accordance with section 81, a person to be his legal representative for the purposes of the action, in the event of his death pending the final determination of the action.

[S 19(1)(d) ins by s 11 of Act 17 of 1997.]

(2) —

(a) Where a defendant seeks to have a larger land than that sought to be partitioned by the plaintiff made the subject-matter of the action in order to obtain a decree for the partition or, sale of such larger land under the provisions of this Law, his statement of claim shall include a statement of the particulars required by section 4 in respect of such larger land; and he shall comply with the requirements of section 5, as if his statement of claim were a plaint under this Law in respect of such larger land.

(b) Where any defendant seeks to have a larger land made the subject-matter of the action as provided in paragraph (a) of this subsection, the court shall specify the party to the action by whom and the date on or before which an application for the registration of the action as a Lis pendens affecting such larger land shall be filed in court, and the estimated costs of survey of such larger land as determined by court shall be deposited in court.

(c) Where the party specified under paragraph (b) of this subsection fails to comply with the requirements of that paragraph, the court shall make order rejecting the claim to make the larger land the subject-matter of the action, unless any other party, in whose statement of claim a similar claim shall have been set up, shall comply therewith on or before the date specified in paragraph (b) or within such extended period of time that the court may, on the application of any such party, fix for the purpose.

(d) After the action is registered as a lis pendens affecting the larger land and the estimated costs of the survey of the larger land have been deposited in court, the court shall—

(i) add as parties to the action all persons disclosed in the statement of claim of the party at whose instance the larger land is being made the subject-matter of the action as being persons who ought to be included as parties to an action in respect of such larger land under section 5; and

(ii) proceed with the action as though it had been instituted in respect of such larger land; and for that purpose, fix a date on or before which the party specified under paragraph (b) of this subsection shall, or any other interested party may, comply with the requirements of section 12 in relation to the larger land as hereinafter modified.

(e) Where the larger land is made the subject-matter of the action, the provisions of sections 12, 13, 14 and 15 shall, mutatis mutandis, apply as if the statement of claim of the party seeking a partition or sale of the larger land were the plaint in the action; and—

(i) such party shall with his declaration under section 12, in lieu of an amended statement of claim, file an amended caption including therein as parties to the action all persons not mentioned in his statement of claim, but who should be made parties to an action for the larger land under section 5, and .such amended caption shall be deemed for all purposes to be the caption to his statement of claim in the action;

(ii) summons shall be issued on all persons added as parties under paragraph (d) of this subsection and all persons included as necessary parties under sub-paragraph (i) hereof;

(iii) notice of the action in respect of the larger land shall be issued on all parties to the action in the original plaint together with a copy of the statement of claim referred to above;

(iv) the provisions of section 20 shall apply to new claimants or parties disclosed thereafter.

(f) If the party specified by the court under paragraph (b) of this subsection or any other interested party fails or neglects to comply with the provisions of section 12, as herein before modified on or before the date specified in that paragraph, the court may make order dismissing the action in respect of the larger land.

(g) Where the requirements of section 12 as hereinbefore modified are complied with, the court shall order summonses and notices of action as provided in paragraph (e) of this subsection to issue and shall also order the issue of a Commission for the survey of the larger land, and the provisions of sections 16, 17 and 18 shall accordingly apply in relation to such survey.

(3) —

(a) Every party to a partition action, not appearing by a Registered Attorney, shall on or before the date or later date referred to in subsection (1) of this section deliver to the Registrar a memorandum substantially in the form set out in the Second Schedule to this Law setting out an address (hereinafter referred to as the "registered address”) for the service on him of the notice under section 24 and any other legal documents required to be served on a party under the provisions of this Law, unless otherwise provided. Every party shall with such memorandum tender stamps to the value required to cover the cost of postage by registered post of the notice under section 24.

(b) Where a party to a partition action appears by a Registered Attorney the address of the Registered Attorney contained in the proxy shall be deemed to be the registered address of such party. And such Registered Attorney shall on or before the date or later date referred to in subsection (1) of this section, tender to the Registrar stamps to cover the cost of postage by registered post of the notice under section 24.

(c) The dispatch by registered post to the registered address of a party of the notice under section 24 and of any other legal document required to be served on him, shall be deemed to be sufficient service. In this subsection "legal document” includes all processes, pleadings, petitions, affidavits, notices, motions and other documents, proceedings and written communications.

(d) The Registrar shall keep and maintain a list of the registered addresses furnished and an account of the stamps tendered to him under this subsection, which list and account shall be filed as pan of the record of the case.

20. Notice of partition action to persons disclosed.

(1) The court shall order notice of a partition action to be sent by registered post—

(a) to every claimant (not being a party to the action) who is mentioned in the report of the Surveyor under subsection (1) of section 18; and

(b) to every person disclosed under paragraph (c) of subsection (1) of section 19 by a defendant in the action.

(2) —

(a) The plaintiff in a partition action shall file in court the notices which are to be sent under paragraph (a) of subsection (1) of this section.

(b) A defendant who discloses any person referred to in paragraph (b) of subsection (1) of this section, shall, unless the court otherwise orders, file in court the notice to be sent under that subsection to that person.

(c) Every notice under subsection (1) of this section shall be substantially in the form set out in the Second Schedule to this Law.

(3) Any person receiving notice under subsection (1) of this section shall not be added as a party to the action unless he applies by motion in writing to be added on or before the date specified in the notice.

(4) Where such person is added as a party, the court shall forthwith appoint a date on or before which such party shall file his statement of claim.

(5) The provisions of section 69 shall not apply to a person to whom notice has been sent under this section.

21. Issue of copies of plaint and statements of claims to parties.

Every person named in the plaint or added as a defendant, or desiring to be added as a party to a partition action shall be entitled, on payment of the charges prescribed for the issue of certified copies, to obtain from the court a copy of the plaint or of any statement of claim in that action.

[S 21 am by s 4 of Act 32 of 1987.]

22. Failure to Produce Segments of title at trial.

Every party to a partition action who fails to produce in court at the trial of the action any document relating to his title shall, if the court so orders on being satisfied that such document is material for establishing the title of such party, be liable to pay the cost incurred by any other party to the action in procuring such document or in furnishing to the court proof of the contents thereof.

23. List of documents.

(1) Every party to a partition action shall, not less than thirty days before the date of the trial of the action, file or cause to be filed in court a list of documents on which he relies to prove his right, share or interest to, of or in the land together with an abstract of the contents of such documents. No party shall, except with the leave of the court which may be granted on such terms as the court may determine, be at liberty to put any document in evidence on his behalf in the action if that document is not specified in a list filed as aforesaid. Nothing in this subsection shall apply to documents produced for cross-examination or handed to a witness merely to refresh his memory.

(2) Any party to a partition action who desires to inspect any document specified in the list of documents filed in court under subsection (1) of this section by any other party to the action may, by motion ex parte, obtain an order of court to that other party to produce that document at such place and within such time as may be specified in the .order, for the inspection of the first-mentioned party or of his Registered Attorney and to permit such party or Registered Attorney to take copies thereof. The party obtaining such order may himself serve or cause to be served such order on that other party.

(3) Where any party to a partition action to whom an order under subsection (2) of this section is issued, fails to comply with that order in regard to any document to which that order relates, he shall not afterwards be at liberty to put that document in evidence on his behalf in the action unless he satisfies the court that he had sufficient cause for not complying with the order.

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