HERAT, j.—Sillic Fernando v. Silman Fernando
1962Present : Herat, Jl, and Abeyesundere, J.
SILLIE FERNANDO, Appellant, and W. SILMAN FERNANDO
and others, Respondents
S. G. 37 (.Inty.) of 1961—D. G. Panadure, 4476/P
Partition action—Transfer by co-owner, pending action, of whatever will be allotted tohim in the final decree—Dealh of transferor before entering of final decree—Rightsof transferee.
Where, prior to tlio entering of tho interlocutory decree in a partition action,a party transfors by salo or donation whatever will be allotted to him by thefinal dccreo, tho lot in severalty finally allotted to tho transferor or those repre-senting him (if ho has died boforo tho entering of tho final decrco) will auto-matically pass and vest in tho transferee, without any farther conveyance by thotransferor or his representatives.
Appeal from an order of the District Court, Panadure.Nimal Senanayahe, for 41st Defendant-Appellant.
No appearance for respondents.
October 12, 1962. Herat, J.—
In this action, which is a partition action, the 2nd defendant claimscertain soil shares, certain plantations and a thatched house. Prior tothe entering of the interlocutory decree, the 2nd defendant, by the deedmarked 21, donated to his natural children born to his mistress the 41stdefendant-appellant, the soil, plantations and thatched house, whichwould be allotted to him ultimately by the final decree.
This deed Zl was duly accepted by the 41st defendant on behalf ofherself and her minor children. The 2nd defendant died before the enter-ing of the final decree and his mistress the 41st defendant and her childrenare now in possession of the thatched house claimed by the 2nd defendant.The 2nd defendant’s wife and legitimate child, namely, 39th and 40thdefendants, were respectively substituted in place of the 2nd defendantafter his death, pending the partition action.
Final decree was entered in which the thatched house, the plantationsclaimed by the 2nd defendant and the soil shares of the 2nd defendant as alot in severalty, were allotted to the substituted defendants, namely, 39thand 40th defendants.
It has been held by this Court in Sirisoma v. Sarnelis Appuhamy 1and by a fuller Bench at a later stage, that, when a deed purports to sellor donate an undivided interest in a land, whatever will be allotted to thevendor or donor by a final decree in a partition action, the lot in severalty
* (1050) 51 N. L. R. 337.
Paulis Sirujha v. William Singho
allotted to the vendor or donor or those representing him will automati-cally pass and vest in the vendee or donee under the deed in question,without any further conveyance, either by the vendor or donor or by hisrepresentatives.
In view of this position, the moment a final decree was entered in thiscase allocating the thatched house, plantations and the lot in severaltyto the representatives of the 2nd defendant in consequence of the terms ofthe deed Zl, title to that lot in severalty vested under the donees in Zl,namely, a life interest or usufruct in favour of the 41st defendant-appellantand title or donarium in her children.
After the final decree was entered, the 39th and 40th defendants movedfor a writ of possession against the 41st defendant and her children inrespect of the thatched house and the lot in question.. She resisted posses-sion and set up title to the same lot on the strength of deed Zl.
The learned District Judge made his order directing that the writof possession should be executed and the 41st defendant and her childrenejected from the lot in question and he dismissed her application for thestay of writ with costs. From that order the 41st defendant hasappealed.
We are of opinion that her appeal is entitled to succeed, because, inview of what we have said earlier, and according to the terms of Zl,immediately on the final decree being entered, her life interest in thelot in question vested in the 41st defendant, whilst title to the said lotvested in her children. The order of the learned District Judge istherefore set aside, and the 41st defendant’s appeal is allowed with costs.Writ of ejectment will not be executed against the 41st defendant-appellant and her children over whom she has been appointed guardianad litem. The 41st defendant-appellant will be entitled to-the costa ofthe inquiry in the Court below.
Abeyesundere, J.—I agree.
B. SILLIE FERNANDO, Appellant, and W. SILMAN FERNANDO and others , Respondents